ARUL THEATRE Vs. REGIONAL DIRECTOR EMPLOYEES STATE INSURANCE

JUDGEMENT

(1.) THIS civil revision petition is directed against the order of the learned District Judge, Coimbatore, in I. A. No. 371 of 1983 in Pro. No. 15 of 1981, on his file. The main proceeding was initiated by one Arul Theatre represented by one Muthu for a declaration that Arul Theatre is not an establishment coming within the purview of the notification in G. O. Ms. No. 1088, dated 22nd January, 1976. During the pendency of that proceeding, Muthu died on 28th December, 1981. The petitioners, who are the wife and children of the deceased Muthu filed I. A. No. 371 of 1983 on 15th February, 1983, under Order XXII, Rule 3, and S. 151, C. P. C. praying that they should be impleaded as the legal representatives of deceased Muthu in the proceedings. That application was opposed by the respondent herein on the ground that not even the date of death of Muthu had been disclosed and that having regard to his death which took place on 28th December, 1981, the application to bring on record the legal representatives filed on 16th February, 1983, was barred. The learned District Judge upheld this objection of the respondent and dismissed the application to bring on record the petitioners as the legal representatives of the deceased Muthu, as barred by time. It is the correctness of this order that is challenged in this civil revision petition.

(2.) THE contention of the learned counsel for the petitioners is that to the proceedings initiated under the Employees' State Insurance Act, 1948 (34 of 1948) the provisions of the Code of Civil Procedure would be inapplicable and therefore, the application to bring on record the petitioners as the legal representatives of the deceased Muthu filed on 16th February, 1983, can be entertained and ordered as well. On the other hand, the learned counsel for the respondent drew attention to R. 47 framed by the Tamil Nadu Government in the exercise of powers under S. 96 to the effect that with reference to matters relating to procedure for which no specific provision is made the provision of the Code of Civil Procedure would apply so far as may be and O. 22, R. 3, C. P. C. and Art. 120 of the Limitation Act, would apply and therefore, any application made to bring on record the legal representatives of the deceased party beyond 90 days from the date of the death of the party, would be barred.

(3.) SECTION 78 of the Employees' State Insurance Act enumerates only some of the powers of the civil court and that is confined to the summoning and enforcing the attendance of witnesses and compelling the discovery as well as the production of the documents, but that is by no means exhaustive. With reference to the procedure to be followed before the courts, S. 96 (b) of the Employees' State Insurance Act enables the State Government to make rules. Pursuant to that, in G. O. Ms. No. 3143, Development, dated 9th July, 1951, rules have been framed and R. 47 which is relevant for this case runs as under :