Surya Prakash Vs. Mohd. Jameel Khan - Court Judgment

Excerpt:
.....on the ground that he is a part-time employee. however, the court will have to apply various tests applicable fort determining the relationship of employer and employee such as the control test, the integration or the organization test. the 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..........respondent under order 17 of the code of civil procedure against the petitioner. the petitioner filed an application for leave to defend. that application was dismissed in default of the appearance of the objector. few days after expiry of 30 days, an application was filed under order 37 rule 4 read with order 9 rule 13 cpc. the court applied the limitation of 30 days and held that the application was beyond limitation and dismissed it on this ground alone. this is revision against the said order.2. the learned counsel for the petitioner argues that order 9 rule 13 cpc is not applicable to this case and for filing an application under order 37 rule 4 cpc, which is the provision applicable in this case, the residuary period of limitation of three years under article 137 of the.....

Judgment:
ORDER

Gokal Chand Mital, C.J.

1. The suit was filed by the respondent under Order 17 of the Code of Civil Procedure against the petitioner. The petitioner filed an application for leave to defend. That application was dismissed in default of the appearance of the objector. Few days after expiry of 30 days, an application was filed under Order 37 Rule 4 read with Order 9 Rule 13 CPC. The court applied the limitation of 30 days and held that the application was beyond limitation and dismissed it on this ground alone. This is revision against the said order.

2. The learned counsel for the petitioner argues that Order 9 Rule 13 CPC is not applicable to this case and for filing an application under Order 37 Rule 4 CPC, which is the provision applicable in this case, the residuary period of limitation of three years under Article 137 of the Limitation Act will apply and not the one provided for filing an application under Ordcr9 Rule 13 CPC. In support of this argument, he relies on the decision of Chief Justice Chhagla in P. N. Films Ltd. v. Overseas Films Corporation Limited, AIR 1958 Bom 10. The contention is fully supported by the above referreddecision.

3. Accordingly, the revision is allowed. The order of Court below dated 17-9-1990 isset aside and the matter is sent back to the court below to decide the application within the four corners of the provisions of Order 37, Rule 4, C.P.C. viz., regarding (he special circumstances, if any, which may justify the setting aside of the order.

4. The parties through their counsel are directed to appear before the court below on 23rd Sept. 1994.