iqramuddIn and ors. Vs. Nizamuddin - Court Judgment

Excerpt:
rajasthan courts fees and suits valuation act - section 11(2)--deficit court fee--word 'shall' be read as 'may'; (ii) it is directory and not mandatory; (iii) it does not involve question of jurisdiction; and (iv) composite decision can be taken and plaintiff can be asked to pay deficit court fee.;the word 'shall' as used in sub-section (2) of section 11 should be inter-preted as 'may' and section 11 should be considered as directory and not mandatory in nature.;the pecuniary jurisdiction of the court will remain the same and no question of jurisdiction is involved as such, it is not necessary to determine the value of the property at this stage. a composite decision can be taken and before pronouncing if the court finds that the deficit court fee has been paid then the plaintiff can be asked to make payment of the deficit court fee within the lime granted by the court.;revision dismissed. - 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 whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the duration of working hours for which and appointee is required to work. if a person fulfils the test of a workman, he cannot be excluded from the definition only 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 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 falls within the definition of workman under section 2 (s) of the i.d. act. sometimes looking to the nature of the establishment and its activities, the employer may need the services of a person only for a few hours in a day. depending on his requirement, the employer may employ two part-time workers instead of one full-time worker. similarly, it may be more convenient for the concerned person to do work on part-time basis rather than for full time. however, convenience per se of the employer or the employee by itself does not confirm or negate the status of such person as a workman within the meaning of the i.d. act, but the tests relevant for determining the status of a workman such as control test and integration test will be required to be applied. if a person is working with two employers on part-time basis on the same day, it may result into an anomalous situation and the court will have to consider the nature of engagement in both the establishments. however, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the court will take these facts into consideration. - ranjan further submits that only in exceptional cases, provided under order 14, rule 2 sub-rule (2), the court should dispose of an issue as a preliminary issue if it relates to the jurisdiction of the court or there is a bar created by law in entertaining the suit for hearing. --in this section, the expression 'merits of the claim' refers to matters which arise for determination to the suit, not being matters relating to the frame of the suit, misjoinder of parties and causes of action, the jurisdiction of the court to entertain or try the fee payable but inclusive of matters arising on pleas of res judicata, limitation and the like.orderd.l. mehta, j.1. this revision petition is directed against the judgment dated 18-1-89 passed by the learned additional district judge no. 6, jaipur city, jaipur.2. plaintiff instituted a suit in the court of learned district judge, jaipur city, which was transferred in the court of additional district judge no. 6, jaipur city, jaipur. plaintiff valued the suit at rs. 10,001/-. defendant submitted the written statement and raised the objection that the property is worth more than rs. 1 lac and plaintiff should be asked to make payment of the court-fees valuing the suit at rs. 1 lac.3. application was also moved subsequently under section 11 of the rajasthan court-fees act and prayer was made that the court should inquire about the valuation of the property in dispute and decide this point first before hearing of the suit as contemplated by order 14, c.p.c. application moved by the defendant was rejected by the trial court. being aggrieved with the order of rejecting this revision petition has been filed.4. mr. lodha appearing on behalf of the petitioner has cited before me the case of moti lal v. jagdish prasad, 1969 rlw 184, in which it has been held as under (at page 186 rlw 1969) :--'section 11(1) lays down that the court shall apply its mind to the question as to whether the court-fee paid is sufficient before the plaint is registered. this decision is subject to review, further review and correction but only in the manner specified in the succeeding sub-section. these sub-sections are -subsections (2) and (3). sub-section (2) is applicable to the present defence. it is open to a defendant before filing a written statement in reply to all the allegations in the plaint to take a plea that the suit has been undervalued and the court-fees is insufficiently paid. in that case the court would be bound to decide the question as to whether the suit has been properly valued. but once the written statement has been filed the only manner in which the plea can be taken is by amending the written statement.'mr. lodha has also cited before me the case of gangaram v. phulia,1966 rlw 135. this court has held that the judge has to give decision whether the court-fees paid is sufficient or insufficient, though in latter case time may be allowed to make up deficiency.6. section 11 of the rajasthan court-fees act was considered by this court and directions were given to determine the court-fees.7. mr. lodha has also cited before me the case of jagdish rai v. smt. sant kaur, air 1976 delhi 147, and submitted that the question of court-fees is a preliminary point which ought to be decided by the court before proceeding to decide the merits of the case.8. on the other hand, mr. ranjan appearing on behalf of the non-petitioner, submitted before the court that section 11 of the rajasthan court-fees and suits valuation act is not mandatory, but, it is directory in nature. he submits that the word 'shall' should be read as 'may'.9. mr. ranjan further submits that the code of civil procedure as modified vide amending act of 1976, provides under 0.14, rule 2(1) that notwithstanding that a case may be disposed of on a preliminary issue, court shall, subject to the provisions of sub-rule (2) pronounce the judgment on all issues. he submits that the issue relating to the payment of court-fees has nothing to do with the question of jurisdiction of the court. whether a suit is valued for rs. 11,000/- or rs. 1 lac, it is immaterial for the porpose of the jurisdiction of the court. mr. ranjan further submits that only in exceptional cases, provided under order 14, rule 2 sub-rule (2), the court should dispose of an issue as a preliminary issue if it relates to the jurisdiction of the court or there is a bar created by law in entertaining the suit for hearing. mr. ranjan has cited before me the case of cheni ram v. shanti devi, air 1980 raj 192, in which this court has held as under (at page raj 193; air 1980),:--'whether the cause of action for a suit arose at place a or place b is a mixed question of law and fact.an issue can be considered and decided as a preliminary issue if it is an issue of law only and on it the case or part of it can be disposed, of.there is no provision that even though issues about limitation or jurisdiction are to be considered on disputed facts, evidence should be recorded on them first and they must be decided as preliminary issues.'10. mr. ranjan has also cited before me the case of air 1981 ap 147 and submitted that the question of court-fee need not be tried as preliminary issue.11. mr. ranjan has also raised other preliminary objection shall the revision petition does not lie against the said order.12. i have heard the rival contention of both the parties.13. payment of the court-fees is a fiscal matter and does not affect the jurisdiction of the court. it is also necessary to give harmonious construction to the provisions of the code of civil procedure and rajasthan court-fees and suits valuation act, 1961 order 14, rule 2, permits the court that where the issues both of the law and the facts arise in the same suit and the court is of opinion that the case or anypart thereof may be disposed of on a issue only, it may try the issue first. if that issue relates to (a) jurisdiction of the court (b) a bar to the suit created by any law for the time being in force. thus, the order 14, rule 2(2) is an enabling provision under which the court can decide the question referred to above without deciding all issues at a time. order 14, rule 2(1) provides that notwithstanding the case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. thus, there is a direction to the court to decide all issues by one judgment unless the issue falls within the purview of order 14, rule 2 sub-rule (2). rule 2 sub-clause (i) of order 14 is mandatory in character and exception to this rule has been carved out in sub-rule (2) of rule 2 of order 14. in this rule the question in relation to the valuation of the suit for purpose of payment of court-fees has not been included under the exceptions carved out under sub-rule (2) of rule 2 of order 14.for this very reason the composite decision on all issue is a must and the issue relating to the valuation for the purpose of court-fees falls within the enabling clause of sub-rule (2) of rule 2 of order 14. it is necessary to give a harmonious construction to the provision of the code of civil procedure and the provisions of the rajasthan court-fees and the suits valuation act.14. provision of andhra pradesh court-fees and suits valuation act of 1956, section 11 clause (2), and section 11 clause (2) of the rajasthan court-fees and suits valuation act, 1961 are similar. the language in subsection (2) of section 11 of the act of 1961 does not refer to the question of pecuniary jurisdiction at all. it refers only to the question of proper court-fees. section 11(2) of the act does not make any distinction between the court-fees involving any pecuniary jurisdiction and question of court-fees involving payment of proper court-fees and valuation. it will not be out of place here to mention that sub-section (4) (a) of section 11 provides that where the case comes up before the court on'appeal it shall be lawful for such court either in its own motion or on the application of any of the parties to consider the correctness of any order passed by the lower court effecting the fees payable on the plaint and to determine the proper fee payable. for giving a harmonious construction i am of the view that the word 'shall' as used in sub-section (2) of section 11 should be interpreted as 'may' and section 11 should be considered as directory in nature and not mandatory in nature. to hold section 11 as mandatory will not be a harmonious construction of the law as it will come in conflict with the central law, c.p.c. it will not be out of place here to mention that the explanation to section 11 reads as under:--'in this section, the expression 'merits of the claim' refers to matters which arise for determination to the suit, not being matters relating to the frame of the suit, misjoinder of parties and causes of action, the jurisdiction of the court to entertain or try the fee payable but inclusive of matters arising on pleas of res judicata, limitation and the like.'15. so, the merits of the case can be decided before the delivery of the judgment and if the court comes to the conclusion that the court-fee paid is deficient, it may defer the pronouncement of the judgment and ask the party to pay the deficit court-fee as per valuation of the court, thus, the multiplicity of the proceedings delay in the disposal of the suit and calling and recalling the witnesses every time can be avoided and it will serve the cause of justice and the cause of litigants also. for this reason also i hold that section 11 of the act is directory in nature.16. in the instant case, the pecuniary jurisdiction of the court will remain the same and no question of jurisdiction is involved, as such, it is not necessary to determine the value of the property at this stage. a composite decision can be taken and before pronouncing if the court finds that the deficit court-fee has been paid then the plaintiff can be asked to make payment of the deficit court-fee within the time granted by the court.17. in the result, the revision petition fails. no order as to costs.

Judgment:
ORDER

D.L. Mehta, J.

1. This revision petition is directed against the judgment dated 18-1-89 passed by the learned Additional District Judge No. 6, Jaipur City, Jaipur.

2. Plaintiff instituted a suit in the court of learned District Judge, Jaipur City, which was transferred in the court of Additional district Judge No. 6, Jaipur City, Jaipur. Plaintiff valued the suit at Rs. 10,001/-. Defendant submitted the written statement and raised the objection that the property is worth more than Rs. 1 lac and plaintiff should be asked to make payment of the court-fees valuing the suit at Rs. 1 lac.

3. Application was also moved subsequently under Section 11 of the Rajasthan Court-fees Act and prayer was made that the Court should inquire about the valuation of the property in dispute and decide this point first before hearing of the suit as contemplated by Order 14, C.P.C. Application moved by the defendant was rejected by the trial court. Being aggrieved with the order of rejecting this revision petition has been filed.

4. Mr. Lodha appearing on behalf of the petitioner has cited before me the case of Moti Lal v. Jagdish Prasad, 1969 RLW 184, in which it has been held as under (at page 186 RLW 1969) :--

'Section 11(1) lays down that the Court shall apply its mind to the question as to whether the Court-fee paid is sufficient before the plaint is registered. This decision is subject to review, further review and correction but only in the manner specified in the succeeding Sub-section. These sub-sections are -subsections (2) and (3). Sub-section (2) is applicable to the present defence. It is open to a defendant before filing a written statement in reply to all the allegations in the plaint to take a plea that the suit has been undervalued and the court-fees is insufficiently paid. In that case the Court would be bound to decide the question as to whether the suit has been properly valued. But once the written statement has been filed the only manner in which the plea can be taken is by amending the written statement.'

Mr. Lodha has also cited before me the case of Gangaram v. Phulia,1966 RLW 135. This Court has held that the Judge has to give decision whether the court-fees paid is sufficient or insufficient, though in latter case time may be allowed to make up deficiency.

6. Section 11 of the Rajasthan Court-fees Act was considered by this Court and directions were given to determine the court-fees.

7. Mr. Lodha has also cited before me the case of Jagdish Rai v. Smt. Sant Kaur, AIR 1976 Delhi 147, and submitted that the question of court-fees is a preliminary point which ought to be decided by the Court before proceeding to decide the merits of the case.

8. On the other hand, Mr. Ranjan appearing on behalf of the non-petitioner, submitted before the court that Section 11 of the Rajasthan Court-fees and Suits Valuation Act is not mandatory, but, it is directory in nature. He submits that the word 'shall' should be read as 'may'.

9. Mr. Ranjan further submits that the Code of Civil Procedure as modified vide Amending Act of 1976, provides under 0.14, Rule 2(1) that notwithstanding that a case may be disposed of on a preliminary issue, court shall, subject to the provisions of Sub-rule (2) pronounce the judgment on all issues. He submits that the issue relating to the payment of court-fees has nothing to do with the question of jurisdiction of the Court. Whether a suit is valued for Rs. 11,000/- or Rs. 1 lac, it is immaterial for the porpose of the jurisdiction of the Court. Mr. Ranjan further submits that only in exceptional cases, provided under Order 14, Rule 2 Sub-rule (2), the Court should dispose of an issue as a preliminary issue if it relates to the jurisdiction of the Court or there is a bar created by law in entertaining the suit for hearing. Mr. Ranjan has cited before me the case of Cheni Ram v. Shanti Devi, AIR 1980 Raj 192, in which this Court has held as under (at page Raj 193; AIR 1980),:--

'Whether the cause of action for a suit arose at place A or Place B is a mixed question of law and fact.

An issue can be considered and decided as a preliminary issue if it is an issue of law only and on it the case or part of it can be disposed, of.

There is no provision that even though issues about limitation or jurisdiction are to be considered on disputed facts, evidence should be recorded on them first and they must be decided as preliminary issues.'

10. Mr. Ranjan has also cited before me the case of AIR 1981 AP 147 and submitted that the question of Court-fee need not be tried as preliminary issue.

11. Mr. Ranjan has also raised other preliminary objection shall the revision petition does not lie against the said order.

12. I have heard the rival contention of both the parties.

13. Payment of the court-fees is a fiscal matter and does not affect the jurisdiction of the Court. It is also necessary to give harmonious construction to the provisions of the Code of Civil Procedure and Rajasthan Court-fees and Suits Valuation Act, 1961 Order 14, Rule 2, permits the Court that where the issues both of the law and the facts arise in the same suit and the court is of opinion that the case or anypart thereof may be disposed of on a issue only, it may try the issue first. If that issue relates to (a) jurisdiction of the Court (b) a bar to the suit created by any law for the time being in force. Thus, the Order 14, Rule 2(2) is an enabling provision under which the Court can decide the question referred to above without deciding all issues at a time. Order 14, Rule 2(1) provides that notwithstanding the case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues. Thus, there is a direction to the Court to decide all issues by one judgment unless the issue falls within the purview of Order 14, Rule 2 Sub-rule (2). Rule 2 Sub-Clause (I) of Order 14 is mandatory in character and exception to this rule has been carved out in Sub-rule (2) of Rule 2 of Order 14. In this rule the question in relation to the valuation of the suit for purpose of payment of Court-fees has not been included under the exceptions carved out under Sub-rule (2) of Rule 2 of Order 14.

For this very reason the composite decision on all issue is a must and the issue relating to the valuation for the purpose of court-fees falls within the enabling Clause of Sub-rule (2) of Rule 2 of Order 14. It is necessary to give a harmonious construction to the provision of the Code of Civil Procedure and the provisions of the Rajasthan Court-fees and the suits Valuation Act.

14. Provision of Andhra Pradesh Court-fees and Suits Valuation Act of 1956, Section 11 Clause (2), and Section 11 Clause (2) of the Rajasthan Court-fees and Suits Valuation Act, 1961 are similar. The language in subsection (2) of Section 11 of the Act of 1961 does not refer to the question of pecuniary jurisdiction at all. It refers only to the question of proper court-fees. Section 11(2) of the Act does not make any distinction between the Court-fees involving any pecuniary jurisdiction and question of court-fees involving payment of proper court-fees and valuation. It will not be out of place here to mention that Sub-section (4) (a) of Section 11 provides that where the case comes up before the court on'appeal it shall be lawful for such court either in its own motion or on the application of any of the parties to consider the correctness of any order passed by the lower court effecting the fees payable on the plaint and to determine the proper fee payable. For giving a harmonious construction I am of the view that the word 'shall' as used in Sub-section (2) of Section 11 should be interpreted as 'may' and Section 11 should be considered as directory in nature and not mandatory in nature. To hold Section 11 as mandatory will not be a harmonious construction of the law as it will come in conflict with the Central law, C.P.C. It will not be out of place here to mention that the explanation to Section 11 reads as under:--

'In this section, the expression 'merits of the claim' refers to matters which arise for determination to the suit, not being matters relating to the frame of the suit, misjoinder of parties and causes of action, the jurisdiction of the Court to entertain or try the fee payable but inclusive of matters arising on pleas of res judicata, limitation and the like.'

15. So, the merits of the case can be decided before the delivery of the judgment and if the court comes to the conclusion that the court-fee paid is deficient, it may defer the pronouncement of the judgment and ask the party to pay the deficit court-fee as per valuation of the Court, Thus, the multiplicity of the proceedings delay in the disposal of the suit and calling and recalling the witnesses every time can be avoided and it will serve the cause of justice and the cause of litigants also. For this reason also I hold that Section 11 of the Act is directory in nature.

16. In the instant case, the pecuniary jurisdiction of the Court will remain the same and no question of jurisdiction is involved, as such, it is not necessary to determine the value of the property at this stage. A composite decision can be taken and before pronouncing if the court finds that the deficit court-fee has been paid then the plaintiff can be asked to make payment of the deficit Court-fee within the time granted by the Court.

17. In the result, the revision petition fails. No order as to costs.