Magna and anr. Vs. Rustam and anr.

Magna and anr. vs Rustam and anr.

Disposition Application partly allowed Court Rajasthan Decided Feb 08, 1961

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Citation: sooperkanoon.com/750447
Court: Rajasthan High Court
Judge: Jagat Narayan, J.
Decided On: Feb 08, 1961
Case Number: Civil Revn. No. 223 of 1957
Subject: Civil
Disposition: Application partly allowed

Case Summary

AI-generated summary - not the official court judgment text.

- INDUSTRIAL DISPUTES ACT, 1947. Section 2(s): [M.S. Shah, Sharad D. Dave & K.S. Jhaveri,JJ] Workman Part time employees Held, Part time employees are not excluded from the definition of workman in Section 2(s) merely on the ground that they are part time employees. The ex abundante cautela use of the words either...

Key legal issue: Civil
Outcome / disposition: Application partly allowed
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 39, Rules 1 and 2(3)

Parties & Advocates

Appellant / Petitioner

Magna and anr.

Advocate Mahaveer Chand Bhandari, Adv.

Respondent

Rustam and anr.

Advocate Mag Raj, Adv.

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 39, Rules 1 and 2(3)
Cases Referred: State of Bihar v. Usha Devi
Reported In: AIR1963Raj3

Excerpt

.....control test is one of the important tests, but is not to be taken as the sole test. it is also required to be examined whether the person was fully integrated into the employers concern or has remained apart from and independent of it. the other facts which may be relevant are as to who has the power to select and dismiss, to pay remuneration, to organize the work, etc. a full time worker usually works in a week for 40 hours or more depending on the award or agreement. if a person falls under the definition of workman under section 2(s) and does not fall in any excluded category, he will be covered by the definition of workman under the i.d. act, and he will be entitled to all the benefits under the said act. a perusal of section 2(s) indicates that it does not specifically refer to a part-time workman nor does it specifically exclude a part-time workman from the definition of :workman. since the number of hours is not the determining criterion for deciding whether a person falls within the definition of workman or not, it cannot be said that a part-time worker is not a workman within the meaning of the provisions of the i.d. act. however, to decide the status of a worker rendering services for less than 40 hours a week, various aspects are required to be considered. the control test, the integration test and all the other relevant tests are as much applicable for deciding the status of a person rendering service on part-time basis as these tests are required to be applied for deciding the status of a person rendering the services on full-time basis. since persons may be engaged for part-time work for various reasons, while deciding the question whether a person rendering services on part-time basis is a workman or not, the nature of the industry, the nature of services being rendered by the person, the terms and conditions of engagement and various other factors will have to be taken into consideration before coming to the conclusion whether such a person..........application by two of the defendants against an appellate order of the district judge bhilwara ordering demolition of constructions made in defiance of an order of temporary injunction passed under order 39 rule 2 code of civil procedure.2. the facts which have given rise to this application are these. between the houses of the plaintiffs and magni ram and baloo ram defendants there is a piece of enclosed open land marked abcd in plan ex. 17. this land is situated to the south of the house of the plaintiffs. eight baris marked h. to order 8 roshandans marked y1 to y8 and one window marked g of the house of the plaintiffs open towards this land. further 9 open projecting spouts of the house of the plaintiffs discharge on this land. three of these spouts are on the first floor and marked p, q and r. six of them are on the second floor and are marked s to x. there is an opening ef in the northern wall of the house of the contesting defendants through which they could have access to the land .abcd. it is through this opening ef that the water from the house of the plaintiffs discharging on the land abcd flows out through the house of the contesting defendants. the contesting defendants started making constructions on the land abcd in the year 1953. the present suit was then instituted. an order of temporary injunction restraining the contesting defendants from proceeding further with the constructions was passed against them. this order was defied and the constructions were raised so as to block the three spouts p, q and r and all the 17 apertures. the plaint was thereafter suitably amended. the case of the plaintiffs was that eitherthey were the exclusive owners of the land abcd or they were the joint owners of it along with the defendant or the land belonged to some one else and they had acquired a prescriptive right of easement with regard to the 17 apertures and the 9 spouts. they prayed that the constructions made by the contesting defendants on the land abcd.....

Full Judgment

ORDER

Jagat Narayan, J.

1. This is a revision application by two of the defendants against an appellate order of the District Judge Bhilwara ordering demolition of constructions made in defiance of an order of temporary injunction passed under Order 39 Rule 2 Code of Civil Procedure.

2. The facts which have given rise to this application are these. Between the houses of the plaintiffs and Magni Ram and Baloo Ram defendants there is a piece of enclosed open land marked ABCD in plan Ex. 17. This land is situated to the south of the house of the plaintiffs. Eight Baris marked H. to Order 8 Roshandans marked Y1 to Y8 and one window marked G of the house of the plaintiffs open towards this land. Further 9 open projecting spouts of the house of the plaintiffs discharge on this land. Three of these spouts are on the first floor and marked P, Q and R. Six of them are on the second floor and are marked S to X. There is an opening EF in the northern wall of the house of the contesting defendants through which they could have access to the land .ABCD. It is through this opening EF that the water from the house of the plaintiffs discharging on the land ABCD flows out through the house of the contesting defendants. The contesting defendants started making constructions on the land ABCD in the year 1953. The present suit was then instituted. An order of temporary injunction restraining the contesting defendants from proceeding further with the constructions was passed against them. This order was defied and the constructions were raised so as to block the three spouts P, Q and R and all the 17 apertures. The plaint was thereafter suitably amended. The case of the plaintiffs was that eitherthey were the exclusive owners of the land ABCD or they were the joint owners of it along with the defendant or the land belonged to some one else and they had acquired a prescriptive right of easement with regard to the 17 apertures and the 9 spouts. They prayed that the constructions made by the contesting defendants on the land ABCD may be ordered to be- demolished and a permanent injunction may be granted to safeguard their rights in respect of the apertures and the spouts.

3. During the pendency of the suit the lower appellate court passed an order requiring the applicants to demolish the constructions which they had made in defiance of the order of temporary injunction. Against that order the present revision application, has been filed. The contention on behalf of the applicants is that no such order is warranted by any provision contained in the Code of Civil Procedure and that as there is a specific provision contained in Rule 2 (3) of Order 39 for imposing penalty for disobedience of the order Pf injunction there is no scope for the exercise of any inherent power of the court.

4. So far as the question of imposing a penalty tor disobedience of order of injunction is concerned I agree with the contention put forward on behalf of the applicants that Rule 2 (3) of Order 39 is exhaustive on the subject.

5. But the imposing of penalty on the party guilty of the disobedience does not provide any relief to the party in whose favour the order of temporary injunction is passed. The object of such an order is to safeguard the rights of a party against a threatened invasion by the other party. If in disobedience of the order of injunction such rights are invaded during the pendency of the suit relief can only be granted to the aggrieved party by invoking the inherent power of the court under Section 151 of the Code of Civil Procedure.

In this connection the decision in the State of Bihar v. Usha Devi, AIR 1956 Pat 455 may be referred to.

6. In the suit the plaintiffs had in the alternative also claimed ownership over the land ABCD over which constructions were made by the defendants in defiance of the order of injunction. But they had no prima facie case with regard to the claim of ownership. They had a prima facie case with regard to their rights of eessment in respect of the spouts and other apertures. The order of demolition of the entire structure was 'therefore not justified. Only the order directing demolition of such part of the constructions as interfered with the rights of easement of the plaintiffs was justified.

7. The suit out of which the present proceedings have arisen has since been finally decided by this Court and a decree has been passed directing the defendants to demolish part of the constructions raised by them over the land ABCD. In view of that decree it is not necessary to maintain the present order even in a modified form. The revision application is accordingly allowed in part as indicated above.

8. In the circumstances of the case, I direct that parties shall bear their own costs.

Same Parties Magna and anr. vs Rustam and anr. Same Subject Civil Same Judge Jagat Narayan, J. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 3...

Civil