MOHD. ASIF ZAIDI Vs. UDAI CHAND CHAURASIYA

JUDGEMENT

(1.) Heard the learned counsel for the appellant Shri Akhter Abbas and Shri Ram Ji Das, learned counsel for the respondents no.1, 2 and 3.

(2.) The instant appeal has been preferred by the plaintiff-appellant being aggrieved against the judgment and decree passed by the first appellate court dated 30th of May, 2009 in Regular Civil Appeal No.186 of 2008 whereby the first appellate court partly allowed the appeal and the judgement and decree dated 12.09.2008 passed in Regular Suit No.340 of 2003 was modified and the decree granted by the trial court in so far as it related to cancellation of the termination order of personal service of the plaintiff-appellant was set aside while the judgment and decree of by the trial court in so far as it related to the payment of back wages of the plaintiff-appellant for the period of March 2006 till 27th of April, 2006 alongwith 5% interest from the date of the decision of the trial court dated 12.09.2008 was affirmed.

(3.) Shri Akhtar Abbas learned counsel for the appellant arguing on the admission of the appeal has submitted that the first appellate court has committed a grave error in allowing the appeal; inasmuch as the person against whom the decree was passed had not appealed and the appeal at the behest of Udai Chand Chaurasiya, who was appellant before the first appellate court, was incompetent. He has further submitted that an objection to the aforesaid effect was raised. However, it does not find mention in the judgment of the first appellate court and therefore the first appellate court has committed a grave error in not even considering the maintainability of the appeal. Shri Abbas has further submitted that even assuming if the first appeal was maintainable even then it would be seen that the decree passed by the trial court was against the original defendants no.3 and 4 whereas the defendant no.3 was impleaded before the trial court as Udai Chand Chaurasiya, Managing Director while the first appeal was filed by Udai Chand Chaurasiya in his personal capacity and not as the Managing Director. Moreover, at the initial stage of filing of the first appeal, the defendant no.4, namely, Hotel Mera Mann through its Managing Director was not even impleaded as a party and only later the aforesaid Company was impleaded as the respondent no.2 before the first appellate court since the decree was against the defendants no.3 and 4. A single appeal merely at the behest of Udai Chand Chaurasiya was not maintainable and this aspect of the matter has not been considered at all by the first appellate court while partly allowing the appeal.