JUDGMENT N.N. Sharma, J.- This is a plaintiff's appeal directed against and decree of Sri Om Prakash, II Additional District Judge, Bareilly dated 14.11.73 who dismissed with costs civil appeal no. 28 of 1973 arising out of original suit no. 238 of 1967. He affirmed the judgment and decree by Sri Hemraj Ram learned Additional Civil Judge, Bareilly, dated 5.1.1973. 2. It appears that the appellant M/S Sher Bidi Distributors is a registered firm which filed a suit for permanent injunction restraining the defendants from enforcing the Scheme of Employees Provident Fund Act (Act no. 19 of 1952) in its concern. 3. Plaintiff alleged that this Firm distributed Sher Bidies in Bareilly and neighbouring districts. The Bidies were manufactured by M/s Mohan Lal Har Govind of Jabalpur. This firm came in operation since 1.1.1965 and had not completed the period of infancy i.e. five years so far as required by Section 16 (b) of the aforesaid Act. It was also not covered by Schedule 1 of the aforesaid Act. Respondents Union of India through the Secretary Ministry of Labour & Employment (Employees Provident Fund Department) Government of India New Delhi and the Regional Provident Fund Commissioner. Uttar Pradesh, 7/128 Swarupnagar, Kanpur went to enforce the aforesaid Scheme in plaintiff's concern and sent letter dated 16.11.1965 about commencement of this Scheme in plaintiff's concern. Plaintiff objected to it but defendants were adament as was obvious from letters dated 2.1.1965 and 22.2.1967 and hence after service of notice under Section 80 of the Code of Civil Procedure on defendants the suit was filed for an injunction restraining the defendants from enforcing the Scheme of Employees Provident Fund Act or any other provisions of the Act in the concern of the plaintiff. Costs of the suit were also claimed. 4. The defendants contested the claim on the ground that plaintiff's firm was running its business from 1957. It was wrong that it started with effect from 1.1.1965. The employees were more than 35 persons on 31.1.1965 in the establishments of Bareilly. Haldwani and Ranikhet etc. and thus the plaintiff s concern attracts the provisions of Employees Provident Fund Act. The suit was barred by Section 41 of the Specific Relief Act. The claim was false, frivolous and infructuous and liable to be dismissed. 5. Learned Additional Civil Judge found that suit was not barred by Section 41 of the Specific Relief Act. and thus the plaintiff s concern attracts the provisions of Employees Provident Fund Act. The suit was barred by Section 41 of the Specific Relief Act. The claim was false, frivolous and infructuous and liable to be dismissed. 5. Learned Additional Civil Judge found that suit was not barred by Section 41 of the Specific Relief Act. However, he found that plaintiff's concern was in existence since much prior to 1.1.1965 having completed infancy period of five years. It was further found that it employed 35 persons and thus was subject to the provisions of U.P. Provident Fund Act (aforesaid). He dismissed the plaintiff's suit. 6. An appeal preferred by plaintiff failed. Hence this Second Appeal was filed. 7. I have heard learned counsel for the parties and perused the record. 8. Unfortunately the record has been burnt up in this case and so for my satisfaction I sent for the original record maintained in the office of respondents. It appears from a perusal of the record the Shop Inspector inspected this Firm on 27th and 30th July, 1966 and earlier on 31st January, 1965 and found that there were 29 employees in Bareilly office, three employees in Haldwani office and three employees in Ranikhet office and thus the establishment was covered by the aforesaid Act with effect from 31st January, 1965. 9. Today an affidavit has also been filed on behalf of the plaintiff alleging that they have already made applicable the provisions of Employees Provident Fund Act since 1976. Thus relief for injunction in presenti cannot be granted. 10. As regards the period from 1.1.1965 upto 1976 it was argued by learned counsel for the appellant that the Firm was setup on 1.1.1965 and so having regard to the period of infancy allowable by Section 16 (5) of the aforesaid Act plaintiff's concern was not amenable to the provisions of this Act in 1965. 11. A perusal of record discloses that although the name of the Firm continued from 1957 yet a registered partnership deed Ext. 14 dated 1.1.1965 was relied upon by plaintiff. It was mentioned in the deed that the present partners in the Firm were Atiqur Rehman. Ataur Rehman and Smt. Maqbool Fatma. Earlier one Azizur Rehman used to be a partner who expired on 28.12.1964. However, the name and style of the Firm continued as before. 14 dated 1.1.1965 was relied upon by plaintiff. It was mentioned in the deed that the present partners in the Firm were Atiqur Rehman. Ataur Rehman and Smt. Maqbool Fatma. Earlier one Azizur Rehman used to be a partner who expired on 28.12.1964. However, the name and style of the Firm continued as before. After death of one partner three partners who survived continued this business after 1.1.1965. Thus the argument put forward by learned advocate for appellant was that death of Azizur Rehman on 28.12.1964 dissolved this firm and a new partnership came into existence from 1.1.1965. It was also pointed out that this question was to be decided by Central Government vide M/s. M.L. Bhargava & Company v. Regional Provident Fund Commissioner and another, reported in F.L.R. 1979, Vol 39. page 19. However, it was open to the court to scrutinise the facts of each case. 12. In the Provident Fund Inspector, Trivandrum v. Secretary, N.S.S. Cooperative Society, 1970 (21) F.L.R : 5 their Lordships of the Supreme Court have approved of the following legal position as stated in a decision of the Madras High Court in Vittaldas Jagannathdas v. Regional Provident Fund Commissioner, 1966 (1) L.L.J., page 240. In the following terms :- "If, in a particular case, it appears that the new establishment is not genuinely such, but is only an old one formally resuscitated in order to avoid the legal obligation, it is always open to the court to hold that substantially continuing, and that the liability to contribute must be affixed to the apparently new firm also But where in reality the old establishment is a new establishment, this establishment is entitled to infancy protection in its own right, even if it happens by coincidence to have employed a large part of the personnel of the previous establishment. Thus it was always open to the court to determine this question. Both the courts below have found that the same business continued in this firm from 1957. In M/s Bharat Board Mills Ltd. v. The Regional Provident Fund Commissioner and others, reported in A.I.R. 1957. Calcutta page 702 it was observed :- "The date of establishment of a factory is the date when the factory starts its manufacturing process. Both the courts below have found that the same business continued in this firm from 1957. In M/s Bharat Board Mills Ltd. v. The Regional Provident Fund Commissioner and others, reported in A.I.R. 1957. Calcutta page 702 it was observed :- "The date of establishment of a factory is the date when the factory starts its manufacturing process. The fact that a new company or concern subsequently takes over or acquires the factory does not shift the date of the establishment of the factory to the date of its taking over or acquisition, nor does the fact that the factory had ceased to produce goods for a certain time and resumed production after certain brief intervals result in extinction of the old factory and establishment of a new factory." This Court also held in Loon Karan Sathiya and another v. Additional Collector Agra, reported in A.I.R. 1965, Allahabad, page, 373 . "The mere closure of the factory for a short period could not be held to have caused the industry which was being carried on earlier, to cease, nor could it be held that a new factory was established when the lessee took it over. A temporary closure of any factory could not mean that when the factory restarted working after that temporary closure, a new factory was established. Consequently, in view of Section 1 (3) of the Act, the Act was applicable to this factory and the provisions of Section 16 (1), were not attracted." 13. Both the courts below rightly found that the Establishment of M/s Sher Bidi Distributors which had been set up in 1957 continued even after the death of Azizur Rehman can 28.12.1964, despite the remaining partners, having executed fresh registered partnership deed on 1.1.1965 and so the impugned judgment cannot be faulted on this score. 14. Learned counsel for the appellant also argued that the concern of plaintiff is not an Establishment as laid down in Section 1, sub-clause (3) of the said Act. Section 1, sub-clause (3) of the said Act reads as below :- "Subject to the provisions contained in Section 16, it applies. 14. Learned counsel for the appellant also argued that the concern of plaintiff is not an Establishment as laid down in Section 1, sub-clause (3) of the said Act. Section 1, sub-clause (3) of the said Act reads as below :- "Subject to the provisions contained in Section 16, it applies. (a) to every establishment which is a factory engaged to any industry specified in Schedule 1 and in which (twenty) or more persons are employed, and (b) to any other establishment employing (twenty) or more persons or class of such establishments which the Central Government may by notification in the official Gazette, specify in this behalf. Provided that the Central Government, may, after giving not less than two months' notice of its intention so to do, by notification in the official Gazette, apply the provisions of this Act to any establishment employing such number of persons less than fifty as may be specified in the notification. (4) Notwithstanding anything contained in sub-section (3) of this Section or sub-section (1) of section 16, where it appears to the Central Government, whether on an application made to it in this behalf or otherwise, that the employer and the majority of employees in relation to any (establishment) have agreed that the provisions of this Act should be made applicable to the (establishment), it may by notification in the official Gazette, apply the provisions of this Act to that (Establishment)". 15. It appears that according to the allegation of shop inspector about 35 persons were employed in this Establishment. It is conceded by plaintiff himself that the provisions of this Act do apply to this Establishment now. Such admission was made by Atiqur Rehman, P.W. 1, himself who was examined as the sole witness on behalf of the plaintiff. So it is obvious that plaintiff's Firm is engaged in distribution of Bidies in Bareilly and adjoining districts. It is conceded by plaintiff himself that the provisions of this Act do apply to this Establishment now. Such admission was made by Atiqur Rehman, P.W. 1, himself who was examined as the sole witness on behalf of the plaintiff. So it is obvious that plaintiff's Firm is engaged in distribution of Bidies in Bareilly and adjoining districts. Learned trial court rightly found that having regard to the list of classes of the establishment to which the list of classes of the establishment to which the Act had been made applicable, the provisions of this Act have been made applicable to such establishment vide Serial No. 22 which runs as below :- "Trading and Commercial Establishment engaged in the purchase, sale or storage of any goods including establishment of Exporters, Importers, Advertisers, Commission Agents, and Prokers and commodity and stock exchanges." So it was rightly held to be a Trading and Commercial Establishment which attracted the provisions of the aforesaid Act. 16. The last contention put forward on behalf of the appellant was that the number of employees engaged in this business was less than 20. The Register of attendance and statement of P.W. disclose that in January 65 and December 1965 although more than twenty persons were employed yet some of them were casual labourers, some were seasonal labourers and as such the total number of regular labourers was less than twenty. This evidence was unrebutted. In N.S.S. Rajendra and others v. The Regional Provision Funds Commissioner, "Glenburn" Bangalore, reported in, 1972, Lab. IC page 935 it was observed :- "In order to bring the establishment within the purview of the Act and the Scheme thereof it is necessary that twenty or more persons should have been employed in the establishment for its regular work which should also have a commercial nexus with its general financial capacity and stability. Such employment would not include employment of a few persons for a short period on account of some emergency or contingency. This must necessarily require determination of the question in each case on its own peculiar facts." 17. Such employment would not include employment of a few persons for a short period on account of some emergency or contingency. This must necessarily require determination of the question in each case on its own peculiar facts." 17. In the Mysore State Co-operative Printing Works Ltd. v. Regional Provident Fund Commissioner, reported in 1976 LAB IC, page 1307 it was observed : "Any person employed to do certain work altogether unconnected in or in connection with the work of the establishment cannot be considered as an "employee." The dominant factor in the definition of the "employee" is that a person should be employed in or in connection with the work of the establishment. The employment of a person should be dictated by the normal requirements of establishment for the regular work which should also have a commercial nexus with its general financial capacity and stability. For deciding the existence of such relationship, it has been universally accepted that the test or control is not the sole criteria." 18. In Bikaner Cold Storage Co., Bikaner v. Regional Provident Fund Commissioner, Rajasthan reported in 1979 Lab. IC page 1017, it was observed :- "(B) Employees Provident Funds and Misc. Provisions Act (19 of 1952) 5.1.(3) Applicability of the Act-Employment of 20 or more person Computation-Inclusion of names of workmen in muster roll not necessary-Casual labourers engaged for doing work not connected with normal business of establishment-Cannot be included for computing 20 employees-Employer carrying business of cold storage-Engaging Casual Labourers for building repairs-Cannot be included." 19. In Nazeena Traders (P) Ltd. v. Regional Provident Fund Commissioner, Hyderabad land others, reported in AIR 1965 Andhra Pradesh, page 200 it was held :- "A" casual labour" falls outside the scope of 5.1 (3) and hence the establishments, whose employees do not come up to twenty, excluding casual labourers, do not fall within the purview of 5.1 (3) and the provisions of the Provident Fund Scheme cannot be applied to them. The fact that the casual labour is engaged by or through a contractor does not make any difference for the decision of the question, the only criterion being whether they were Casual labourers or not." 20. Learned counsel for respondents relied upon M/s Tip Top Drycleaners and Dyers v. The Union of India and another, reported in 1975, Lab. The fact that the casual labour is engaged by or through a contractor does not make any difference for the decision of the question, the only criterion being whether they were Casual labourers or not." 20. Learned counsel for respondents relied upon M/s Tip Top Drycleaners and Dyers v. The Union of India and another, reported in 1975, Lab. IC page 674 which posited :- "(A) Employees' Provident Fund Act (1952), 5.1.(3)-Applicability-is it necessary that, in order to attract the provisions of the Act, there should be 20 or more than 20 employees on regular basis in an establishment for a continuous period of one year ? No, it is enough if the establishment regularly employs for its general business, the required number of persons for a major part of the year." Reliance was also placed upon Chetram Agrawala v. The Provident Fund Commissioner, Orissa reported in 1973 Lab. IC page 530 which observed :- "Where an establishment employs temporary employees as a part of the regular feature of employment, such employees cannot be construed as casual employees and they cannot be excluded from consideration in determining the total 1971 Lab. IC 951 (SC) Rel. on. (Para 4) Where the employer admits that 9 department employees and 10 to 12 temporary employees worked in regular course of business in the establishment, it is not incumbent upon the Authority to make further inquiry as to whether 20 or more persons worked in the establishment in regular course of business." 21. I have carefully perused these authorities. The number or persons actually employed in an Establishment is a question of fact. In the instant case the Shop-Inspector found such number of employees as 35 on 31.1.1965. The details of the employees found engaged in this work has also been laid in the Inspection report, 29 employees were found in Bareilly office 3 in Haldwani office and 3 in Ranikhet office. Plaintiff was intimated about it. Plaintiff sent letters in this connection but nowhere assailed the inspection-note on the ground that the number of employees actually found working in the Firm was less than twenty. Even according to the attendence register filed by plaintiff for the month of January 65, and December, 1965 the number of such employees was more than twenty. Plaintiff sent letters in this connection but nowhere assailed the inspection-note on the ground that the number of employees actually found working in the Firm was less than twenty. Even according to the attendence register filed by plaintiff for the month of January 65, and December, 1965 the number of such employees was more than twenty. There is no averment in the plaint to show that the number of employees in plaintiff's concern consisted of casual employees which were liable to be excluded. The record prepared by the Shop-Inspector was in the discharge of his official duties. He had no ill-will with this Firm and so that record is authentic and relevant vide Section 35 of Indian Evidence Act and for out weighs the flimsy and interested testimony of P.W. 1 on this point. Moreover this question of fact is concluded by concurrent findings of the courts below which I am lost he to interefers vide Deity pattabhiramaswamy v. S. Henymayya and others, reported in AIR 1959 SC 57 in which it was observed :- "The provision of Section 100 are clear and unembiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross the error may seem to be. Nor does the fact that the finding of the first appellate court is based upon some documentary evidence make it any the less a finding of fact. A judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence." 22. In the result, the appeal is dismissed with costs. Impugned judgment and decree are affirmed.