HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No v. Loon Singh S/o

: Mr. Babu Lal Gupta HON'BLE MR. JUSTICE MANEESH SHARMA 26/05/2025 Order

1. Present second appeal has been filed under Section 100 Code of Civil Procedure, 1908 by the defendants-appellants, chal- lenging the judgment and decree dated 15.02.2017 passed by the Additional District Judge No.10, Jaipur Metropolitan, Jaipur in Civil Regular Appeal No.21/2016, dismissing the appeal and affirming the order dated 23.07.2016 passed by the Additional Civil Judge No.2, Jaipur Metropolitan, Jaipur in Civil Suit No.356/2013 titled Loon Singh Vs. RSRTC, whereby the suit for declaration and per- manent injunction was partly allowed.

2. Brief facts of the case giving rise to the present second ap- peal are that the plaintiff-respondent filed a suit for declaration and permanent injunction while stating that he was appointed for [2025:RJ-JP:22053] (2 of 6) [CSA-412/2017] the post of Conductor on 15.03.1977 and after completing the entire service tenure, he was retired from his services on

17.09.2012. However, at the time of the retirement, the petitioner was not granted the benefits of allowances relating to overtime, night duty, weekly holiday, gazetted holiday and uniform & shoe allowances etc. Therefore, the petitioner has submitted a repre- sentation to the appellant, but despite giving the representation and notices, the said amount was not released. Therefore, the pe- titioner prayed for the declaration that the respondent may be di- rected to pay the aforesaid allowances to the petitioner.

3. The defendants-appellants filed written-statement and denied the averments made in the plaint and submitted that the entire money payable to the plaintiff has already been paid and nothing remains to be due against the appellant. He further pleaded that the present civil suit was not maintainable before the civil court because the dispute raised by the plaintiff fall within the ambit of an Industrial Dispute.

4. On the basis of the pleadings of the parties, the learned trial Court framed the following issues:- ^^1- 2- 3- 4- 5- vk;k fd oknh mldh lsokvksa ds nkSjku dh cdk;k vf/kJe HkRrs dh jkf'k] foJke HkRrk] jktif=r vodk'k dk Hkqxrku] osruo`f) dk ,sfj;j] ikapos o NBs osrueku dh varj jkf'k o vU; HkRrs okn of.kZrkuqlkj izkIr djus dk vf/kdkjh gS\ vk;k fd oknh mDr HkRrs dh cdk;k jkf'k ij 12 izfr'kr okf"kZd C;kt izkIr djus dk vf/kdkjh gS\ vk;k fd oknh ,d Jfed gS bl dkj.k bl U;k;ky; dks gLrxr okn dh lquokbZ dh vf/kdkfjrk ugha gS\ vk;k fd oknh us xyr okn ewY;kadu dj de U;k; 'kqYd ij ;g okn is'k fd;k gS\ vuqrks"k\** [2025:RJ-JP:22053] (3 of 6) [CSA-412/2017]

5. In order to substantiate the averments of the plaint, the plaintiff examined himself as PW-1 and produced documents Ex.1 to Ex.5.

6. The defendants, in order to controvert the averments of the plaint and the evidence so adduced, examined DW-1 Barkat Ali and produced documents Ex.A1 to Ex. A6.

7. The learned trial Court, after hearing arguments of the re- spective parties, while deciding all the issues in favour of the plaintiff-respondent, decreed the suit of defendants-appellants and directed the defendants-appellants to pay the due allowances i.e. overtime, night duty, weekly holiday, gazetted holiday and uniform & shoe allowances etc. vide order dated 23.07.2016.

8. Being aggrieved of the order, the defendants-appellants pre- ferred the regular civil appeal under Section 96 CPC and the learned Appellate Court, after considering the pleadings of the parties, evidence on record and law on the subject has held that looking at the nature of the suit where right claimed by the plain- tiff in terms of common law, it cannot be said that the suit filed by the plaintiff-respondent is not triable by the learned Civil Court and dismissed the appeal and affirmed the order passed by the learned trial Court.

9. Being aggrieved by the concurrent findings of fact arrived at by the learned Appellate Court, the appellant has preferred the second appeal. The prime contention raised by the learned counsel for the appellant is that the present suit filed by the plaintiff-re- spondent is not maintainable before the Civil Court in view of the judgment reported in [(2009) 1 SCC (L&S) 812] Rajasthan State Road Transport Corporation & Anr. Vs. Bal Mukund [2025:RJ-JP:22053] (4 of 6) [CSA-412/2017] Bairwa. Therefore, the present appeal may be allowed and im- pugned judgments may be set aside.

10. Per contra, learned counsel for the respondent submits that the present suit has not been filed challenging any violation and standing orders or in relation to any industrial dispute as defined in Section 2(K) and he further submits that the present suit has been filed under common law with regard to claiming the money regarding allowances relating to overtime, night duty, weekly holiday, gazetted holiday and uniform and shoe allowances etc. Therefore, the findings recorded by the learned Courts below are perfectly just and proper and do not call for any interference by this Court under second appellate jurisdiction.

11. Heard learned counsel for the parties and perused the im- pugned order.

12. From the record, it is evident that the respondent was ap- pointed as conductor on 15.03.1977 and after completing the en- tire service tenure, he retired on 17.09.2012 and from the record of the case, it is revealed that, the plaintiff-respondent was granted partial retiral benefits, but admittedly the respondent has not granted overtime allowance and gazetted holidays allowance.

13. From the record of the case, it is also reflected that the al- lowances in respect of overtime and gazetted holidays amounting to Rs.1,97,165/- and Rs.12,008/-,respectively, are still remain to be paid by the appellant to the respondent.

14. Since both the courts below have held that the present suit has been filed by the plaintiff in terms of common law or the pro- visions of the Industrial Disputes Act, therefore, it cannot be said [2025:RJ-JP:22053] (5 of 6) [CSA-412/2017] that the civil suit was not triable within the jurisdiction of the Civil Court.

15. Therefore, the contention of the appellants that the present suit is not triable by the Civil Court in view of the judgment passed by the Hon'ble Supreme Court Rajasthan State Road Trans- port Corporation & Anr. Vs. Bal Mukund Bairwa (supra) lacks merit.

16. Both the learned courts below concurrently held that the plaintiff-respondent is entitled to various allowances as enumer- ated in the impugned order.

17. That during the course of arguments, both the counsels have fairly submitted that now only the overtime allowance amounting to Rs.1,97,165/- and gazetted holidays allowance Rs.12,008/- of the respondent are due and for the remaining part of the decree, the counsel for the respondent fairly submits that he has instructions from the client to forego the remaining dues.

18. A bare perusal to the findings recorded by the learned trial Court as well as of the learned First Appellate Court reveals that both the courts below have considered the pleadings of the parties and evidence on record at length and from the bare perusal of the impugned orders, it is evident that there is no illegality or perver- sity in the impugned orders.

19. Further, the question of law proposed in the second appeal falls within the realms of questions of fact and does not fall within the purview of the substantial questions of law. [2025:RJ-JP:22053] (6 of 6) [CSA-412/2017]

20. That in the decision reported in [AIR 2020 SC (4321)], Nazir Mohamed vs J.Kamala And Ors. the Hon'ble Apex Court held that the condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujjar [(1999) (3) SCC 722, the Hon'ble Apex Court held that after the amendment, a second appeal can be filed only if a substantial question of law is involved in the case and it is not within the do- main of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. As such, second appeal cannot be decided on eq- uitable grounds rather conditions mentioned in section 100 must be complied with to admit and maintain a second appeal.

21. In view of the discussions made herein above, no question of law much less any substantial question of law is involved in the second appeal requiring interference by this court in exercise of its jurisdiction under section 100 of Code of Civil Procedure.

22. In view of the above, the present second appeal is dismissed with aforesaid observations and with no order as to costs.

23. The appellant is directed to pay Rs.1,97,165/- towards the overtime allowance and Rs.12,008/- towards the government holiday allowance to the respondent within a period of three months from today.

24. Any other pending application(s), if any, stands disposed of. SOURAV /25 (MANEESH SHARMA),J