ivil Appeal Nos
4145 46 of 1986
From the Judgment and order dated 10785 and 111185 of the High Court of Calcutta in Appeal No 477 of 1984
Tapas Ray and BR Agarwal for the Appellant
758 VA Bobde Rajiv Dutta and Ms Mridula Ray for the Respondents
The Judgment of the Court was delivered SHARMA J
By the impugned judgment the Division Bench of the Calcutta High Court set aside the ex parte decree passed by the Original Side of the Court in favour of the plaintiff Sudha Devi the present appellant
The dispute between the parties is in regard to a flat in a building on Lord Sinha Road Calcutta
The plaintiff prayed for a decree for Rs144730 as past mesne profits besides future mesne profits at the rate of Rs170 per day and for if necessary decree as against the third respondent for possession of the flat described in the plaint
By way of an alternative relief to the money claimed an inquiry for determination of the mesne profits was asked for
None of the defendants appeared
At the ex parte trial the plaintiff examined one witness and tendered certain documents in evidence
The learned Single Judge decreed the suit and the defendant No 3 present respondent No 1 filed an appeal therefrom which was allowed on 10 7 1985 by the judgment which is under challenge in Civil Appeal No 4146 of 1986
The plaintiff thereafter filed an application with a prayer to modify the judgment and remand the suit for retrial
The prayer was rejected by the order dated 11 10 1985
Civil Appeal No 4145 of 1986 is directed against this order
According to the plaintiff s case the defendant No 1 Baranagar Jute Factory Company Ltd was the tenant in respect to the flat in question under the plaintiff
The Jute Company defaulted in payment of rent and also wrongfully sublet the flat to the second defendant Sadhan Chattopadhyaya which led to the filing of an eviction suit by the plaintiff
Both the defendants were impleaded in the suit but they did not appear to contest
An ex parte decree of eviction was passed on 19 2 1982
It is further pleaded that subsequent to the decree either of the two defendants or both wrongfully inducted the third defendant to occupy the demised flat
The plaintiff was therefore entitled to the reliefs mentioned in the plaint
The third defendant filed an application under the provisions of Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree but later withdrew the same and assailed the decree in appeal on merits
The Letters Patent Bench allowed the appeal and set aside the decree on the ground that the plaintiff on the basis of the meagre evidence led by her failed to establish her case
759 4
The fact that the plaintiff obtained an ex parte decree in the earlier suit against the defendant No 1 and 2 is established by the copy of the decree exhibited in the case
The allegation in the plaint so far as the third defendant is concerned is in paragraph 7 in the following words 7
Subsequent to the said Decree on a date or dates which the plaintiff is unable to specify until after disclosure by the defendants the first andor second defendants wrongfully permitted and allowed the third defendant to occupy the said demised flat
The first andor second defendants by themselves andor by the third defendant are still in wrongful possession of the said demised flat
 The only evidence relevant to this part of the case is to be found in the oral evidence of the plaintiff s sole witness Nand Kumar Tibrewal
The High Court in appeal has declined to rely on his evidence mainly on the ground that the witness has not disclosed his concern with the suit property or his relationship with the plaintiff
He has been rejected as incompetent
The learned Counsel for the appellant contended that the witness now deceased was the husband of the plaintiff appellant and thus he was fully conversant with the relevant facts
The criticism by the High Court that the witness did not state anything in his evidence which could connect him with the plaintiff or the property and thus make him competent was attempted to be met before us by relying on an affidavit filed in this Court
We are afraid the plaintiff cannot be allowed to fill up the lacuna in the evidence belatedly at the Supreme Court stage
Besides affidavits are not included in the definition of evidence  in section 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under Order XIX Rules 1 or 2 of the Code of Civil Procedure
This part of the argument of Mr Tapas Ray must therefore be rejected
The learned counsel next urged that even ignoring the relationship of the witness with the plaintiff his evidence is adequate to prove the plaintiff s case which has not been rebutted by any of the defendants either by filing a written statement or cross examining the witness
Mr Bobde the learned counsel representing the defendant No 3 respondent No 1 before us contended that the witness contradicted the case pleaded in the plaint by positively stating that the defendant No 3 was in possession of the flat in question from before the date of the decree passed in the earlier suit
The plaintiff s assertion in paragraph 7 of the plaint is thus contradicted and the suit 760 cannot be decreed on its basis
The learned counsel proceeded to analyse the situation arising out of the records of the case to show that if the defendant No 3 is held to be in possession since before the earlier decree other issues would arise in the suit on which the plaintiff will be required to lead further evidence
The learned counsel strenuously argued that in the facts and circumstances of the case the prayer of the plaintiff made after the disposal of the appeal before the Letters Patent Bench for remanding the suit to the learned Single Judge Original Side for retrial was fit to be allowed and that Civil Appeal No 4145 of 1986 should be allowed by this Court
On the failure of the defendants to appear in the suit the learned trial Judge decided to proceed with the case ex parte
Even in absence of a defence the court cannot pass an ex parte decree without reliable relevant evidence
The fact that the plaintiff chose to examine some evidence in the case cannot by itself entitle her to a decree
The High Court in appeal was therefore perfectly justified in scrutinising the evidence from this angle
The suit was filed and the relief was claimed on the basis that the third defendant was inducted in the flat in question by the other two defendants after they had already suffered a decree and there is not an iota of evidence led by the plaintiff to prove this story
On the other hand the evidence of the sole witness disproves this part of the case
Having regard to the allegations in the plaint the facts emerging from the documents and the oral evidence it is clear that several other questions may arise for consideration if the defendant No 3 is assumed to be in possession from before the earlier decree
We therefore agree with Mr Bobde that the plaintiff cannot be allowed a decree on the evidence led by her in the suit founded on the plaint as it is
After hearing the learned counsel for the parties at considerable length we also agree with Mr Bobde that in the interest of justice the prayer made on behalf of the plaintiff before the High Court after the disposal of the appeal for remand and retrial of the suit is fit to be allowed
As nobody is disputing this position before us we do not consider it necessary to further deal with this aspect
In view of the prayer made by the plaintiff in the High Court and in Civil Appeal No 4145 of 1986 before this Court and the concession of the defendant No 3 before us we hold that the suit should be sent back to the learned Single Judge for retrial
The plaintiff may file an application for amendment of her pleading if so advised and in that case the learned Single Judge shall dispose it of in accordance with law
The defendants will thereafter be allowed to file their written statements within a 761 period to be indicated by the Court
The suit will thereafter be taken up for further trial as expeditiously as may be possible
The evidence already led by the plaintiff shall continue to be evidence in the suit
In the result the judgments of the High Court dated 10 7 1985 and 11 10 1985 passed in Appeal No 477 of 1984 are set aside and the suit is remanded to the learned Single Judge for disposal in the light of the observations made above
We feel that the suit ought to be disposed of as expeditiously as possible and we expect and hope that the trial Judge will be able to dispose it of within six months
The appeals before us are allowed in the above terms
The parties shall bear their own costs in this Court but so for the costs in the High Court are concerned they shall abide the final result in the litigation
PSS Appeals allowed


Summary:
Each of these appeals by special leave was directed against the award made by the Labour Court
The appellant in Civil Appeal No 5415 of 1985 a foreman in the Mechanical Construction Division under the Irrigation Department had filed an application under Section 33C 2 of the  the  before the Labour Court for the recovery of arrears of annual increments
The appellant in Civil Appeal No 2168 of 1987 was a T Mate in the PWD Drainage Division
When his services were terminated without complying with the requirements of the law he challenged the termination before the Labour Court
The appellant in the remaining appeal was an operator in the Mechanical Division under the Irrigation Department of Haryana State
His services were terminated and thereupon he approached the Labour Court challenging the order of termination
In each of these cases challenge was advanced by the Governmental authority to the maintainability of the application before the Labour Court on the ground that the employer was not an industry  and the did not apply
The Labour Court upheld the objection and declined relief to the appellants
Allowing the appeals with observations the Court  HELD The common question in these appeals was whether the Irrigation Department was an industry 
The definition of industry  is given in Section 2j of the 
By Section 2c of the Amending 46 of 1982 this definition had been amended but the amendment has not 617 yet been brought into force
Since the amended statutory definition was not yet in force the parent definition and the judicial pronouncements thereon had to be referred to for finding the law
The field is covered by pronouncements of this Court and is not necessary to go beyond the precedents such as decisions in DN Banerji vs PR Mukherjee  Ors   State of Bombay and Ors
vs The Hospital Mazdoor Sabha  Ors   Corporation of the City of Nagpur vs Its Employees   Management of Safdarjang Hospital vs Kuldip Singh Sethi   and the decision of a seven Judge Bench in Bangalore Water Supply and Sewerage Board vs A Rajappa  Ors  621F G In case the Irrigation Department was accepted to be an industry there was no dispute that each of the appellants would be a workman  and each of the claims would constitute an industrial dispute as defined in Section 2s and k of the  respectively 
621G Judicial notice could be taken of the position that Haryana and Punjab originally constituted one State and Haryana became separate from 1966
The Irrigation Department of the erstwhile Punjab State was discharging the State s obligations created under the 
The Administration Report of the year 1981 82 of the Public Works Department Irrigation Branch which really deals with the Irrigation Department was produced before the Court
634B C Counsel for the appellants placed before the Court some cases of different High Courts in support of his stand that the Irrigation Department should be considered as an industry ie Madhya Pradesh Irrigation Karamchari Sangh vs State of Madhya Pradesh  Anr  State of Rajasthan vs The Industrial Tribunal Rajasthan  Dinesh Sharma  Ors
vs State of Bihar  Ors
 1983 Bihar LJR 207 and Chief Engineer Irrigations Orissa vs Harihar Patra  Anr 638E F On the tests as already laid down in the judgments the Court did not think the facts found in this case could take the Irrigation Department outside the purview of the definition of Industry 
The main functions of the Irrigation Department where subjected to the Dominant Nature test evolved by Krishna Iyer J in Bangalore Water Supply and Sewerage Board vs A Rajappa  Ors   decided by a seven Judges Bench clearly come within the ambit of industry
618 Perhaps keeping in view the observations of the learned Judges of the seven Judges Bench the definition of industry as occurring in section 2j of the was amended by 46 of 1982
However the Court could not gather as to why even six years after the amendment to the definition of industry in section 2j of the came on the statute book the same had not been brought into force
The court on more than one occasion had indicated that the position should be clarified by an appropriate amendment and when keeping in view the opinion of this Court the law was sought to be amended it was appropriate that the same should be brought into force as such or with such further alterations as might be considered necessary and the legislative view of the matter made known and the confusion in the field cleared up
Bare Acts and Commentaries on the had brought in the new definition deleting the old one with a note that the new provision had yet to come into force
This situation had further added to the confusion
639F H 640A B The appeals succeeded
It was made clear that in the event of the definition of industry being changed either by enforcement of the new definition of industry or by any other legislative change it would always be open to the aggrieved Irrigation Department to raise the issue again and the present decision would not stand in the way of such an attempt in view of the altered situation
640B C DN Banerji vs PR Mukherjee  Ors   State of Bombay  Ors
vs The Hospital Mazdoor Sabha  Ors  Corporation of the City of Nagpur vs Its Employees   Management of Safdarjang Hospital vs Kuldip Singh Sethi   Bangalore Water Supply and Sewerage Board vs A Rajappa  Ors
   om Prakash vs Ms Executive Engineer SYL Kurukshetra  Ors
1984 Current LJ 349 State of Punjab vs Kuldip Singh  Anr  Madhya Pradesh Irrigation Karamchari Sangh vs State of Madhya Pradesh  Anr  State of Rajasthan vs The Industrial Tribunal Rajasthan  Dinesh Sharrna  Ors
vs State of Bihar  Ors
 1983 Bihar LJR 207 and Chief Engineer lrrigation Orissa vs Harihar Patra  Anr  referred to