JAHURDIN Vs. MODARAM

JUDGEMENT

(1.) THIS is a defendant's second appeal in a suit for compensation decree by both the courts below. The plaintiff -respondent Modaram filed a suit against the defendant - appellant on the allegation that the defendant was running an oil factory and flour mill known as the Rajasthan Oil and Flour Mills at Nokha. The plaintiff was an employee in the service of the defendant and use to take oil cakes from the machine. No safety measures had been introduced by the defendant in the factory, as a result of which the plaintiff lost his right hand on March 8, 1966 while working in the factory during the course of employment. The plaintiff claimed an amount of Rs. 8,000/ - by way of compensation. The case of the defendant was that though he was running the Rajasthan Oil Flour Mills at Nokha but the plaintiff was not in his service and (he plaintiff did not receive any injury in his Mill. On the basis of the aforesaid pleadings of the parties, the trial court framed the following issues: (1) Whether the plaintiff was a Workman on 8.3.1966 at a monthly wages of Rs. 100/ - in the factory of the defendant named & styled as the Rajasthan Oil and Flour Mills? B P.

(2.) IT is contended by Mr. R.L. Maheshwari, learned Counsel for the appellant, that though the learned District Judge dismissed the application filed by *he defendant -appellant under Order XLI, Rule 27. C.P C. but subsequently in the judgment placed reliance on the muster roll and the register to hold that the plaintiff Modaram was in the service of the defendant. It was,, thus, contended that the learned District Judge, under these circumstances, should be taken of the view that he was considering these documents necessary for pronouncing the judgment It is argued that if the learned District Judge had placed reliance on these documents to hold that the defendant was in the employment of the plaintiff, in that case an opportunity ought to have been granted to the defendant to prove these documents and the application filed by him under Order XLI, Rule 27, C.P.C. should not have been dismissed. It is also argued that these documents were not produced in the trial court as he was not given a proper legal advice. An affidavit was also filed in support of the application and the same was not controverted and under these circumstances, the appeal should be allowed and the appellant should be permitted to lead the evidence with regard to these additional documents filed before the first appellate court and the case should be decided thereafter, reliance is placed on Ramjiwan v. Roopchand A.I.R. 1956 Raj. 1 and Venkataramiah v. Seatharama Reddy A.I.R. 1963 S.C. 1526.

(3.) ONLY after four adjournments that such application was tiled when the arguments were going to be heard on the merits of the appeal, it is further submitted that the learned District Judge has given cogent reasons for dismissing the application filed by the defendant -appellant under Order XLI, Rule 27, C.P.C.