Judgment : This appeal is filed under Section 82(2) of the Employees State Insurance Act, 1948 (for short, `the ESI Act) by the ESI Corporation against the order dated 4-9-2004 passed by the Presiding Officer, Labour-cum-ESI Court, Mangalore in ESI Application No. 7 of 2003 allowing the said application filed by the respondent herein under Section 75(1)(g.) of the ESI Act and declaring that the provisions of ESI Act are not applicable to the establishment of the respondent herein and therefore the respondent herein is not liable to pay the demands made by the Corporation in its various demand notices. .2. The respondent herein is Anantha Padmanabha Mills, Kulshekar, Mangalore, a partnership firm. It is undisputed facts that on 12-1-1996 the Inspector attached to the ESI Corporation in exercise of his powers under Section 45 of the ESI Act inspected the respondent-establishment. According to the Inspector, at the time of inspection, he found 10 persons working in the establishment. The perusal of records, according to the Inspector, indicated that during the month of May 1990, there were 10 employees working in the establishment. Thereafter, one of the partners of the respondent-firm submitted Form 1 on 13-3-1996, wherein he stated to have shown the number of employees employed in the establishment during May 1990 as 10. Therefore, the Inspector served the order dated 13-3-1996 issued by the Deputy Director on behalf of the Regional Director of ESI Corporation to the effect that the respondent-establishment is covered under the provisions of the ESI Act and that the respondent is required to submit the periodical returns and pay ESI contributions. There is no dispute that the respondent received the said order. After the receipt of the said order, it is undisputed that the respondent filed an application before the ESI Court under Section 75 in ESI Application No. 7 of 1997 questioning the coverage of the establishment under the provisions of the ESI Act. The ESI Corporation appeared in the said application and contested the said application. However, the ESI Application No. 7 of 1997 came to be dismissed for non-prosecution on 9-1-2001. Thereafter the authorities of the ESI Corporation passed an order under Section 45-A of the ESI Act demanding the respondent to pay the contributions, interest etc., from 28-5-1990. The said order under Section 45-A of the ESI Act was passed on 13-1-2003. However, the ESI Application No. 7 of 1997 came to be dismissed for non-prosecution on 9-1-2001. Thereafter the authorities of the ESI Corporation passed an order under Section 45-A of the ESI Act demanding the respondent to pay the contributions, interest etc., from 28-5-1990. The said order under Section 45-A of the ESI Act was passed on 13-1-2003. Upon service of the copy of the order under Section 45-A of the ESI Act, the respondent filed ESI Application No. 7 of 2003 under Section 75(1)(g) of the ESI Act seeking declaration that the provisions of ESI Act are not applicable to its establishment and consequently to hold the demands made by the Corporation as not maintainable and for setting aside the demands so made by the Corporation. This application was contested by the Corporation inter ilia contending that the second application filed on behalf of the establishment is barred by principles of res judicata as the very same issue raised in this application was the issue raised in the earlier application and since the earlier application filed by respondent herein has been dismissed, the subsequent application is not maintainable. The Corporation also contested the application on merits denying the averments. The parties led evidence before the ESI Court. After hearing both sides and on assessment of oral and documentary evidence, the ESI Court by the order under appeal held that the provisions of ESI Act are not applicable to the respondent-establishment as at no point of time the respondent-establishment had engaged 10 or more employees. Consequently, the ESI Court set aside the demands made by the Corporation. The ESI Court recorded a finding that the second application is not barred by res judicata as the earlier application was not decided on merits. 3. Beingaggrieved by the said order of the ESI Court, the Corporation has presented this appeal. 4. Upon service of notice of this appeal, the respondent has appeared through its learned Counsel. 5. I have heard both sides. .6. Sri V. Narasimha Holla, the learned Counsel for the appellant-Corporation apart from reiterating the grounds urged in the appeal memo, further contended that the second application filed by the respondent herein before the ESI Court was barred by time in view of Section 77(1-A) of the ESI Act, since the second application came to be filed beyond the period of three years from the date of cause of action. Therefore, the ESI Court could not have entertained the second application, as such, the order under appeal is without jurisdiction and is liable to be set aside. He further contended that the very Form 1 furnished by the partner of the respondent-establishment clearly indicates that 10 persons were employed in the establishment during the month of May 1990 and, therefore, the provisions of ESI Act are applicable to the establishment as such, the ESI Court has committed serious error in holding that the respondent-establishment is not coverable under the ESI Act. Though the learned Counsel tried to contend that the second application is barred by the principles of res judicata at the end of his argument he submitted that in view of the fact that the earlier application has not been decided on merits and since no finding has been recorded on the contentious issue, the principles of res judicata may not get attracted to the present proceeding. He further submitted that cause of action for the respondent to question the coverage arose on 13-3-1996 i.e., date of service of the order on it, which has been admitted in the petition itself, and, therefore, the application filed in the year 2003 questioning the coverage is barred by time. He further contended that the ESI Court has not considered the merits of the demands made by the ESI Corporation on the ground that the establishment is not covered under the ESI Act. 7. On the other hand, Sri S.V. Shastry, learned Counsel appearing for the respondent contended that the plea of res judicata has been rightly answered by the ESI Act and it does not call for interference by this Court. He further contended that the plea now sought to be raised with regard to the maintainability of the petition as barred under Section 77(1-A) of the ESI Act was not raised before the ESI Court, and, therefore, it is not open for the appellant before this Court to raise this issue for the first time. He further contended that the cause of action for the respondent to file the second application arose only on 13-1-2003 when the order passed under Section 45-A of the ESI Act was served upon the respondent and, therefore, the application filed in ESI Application No. 7 of 2003 was very much within the period of limitation allowed in law. He further contended that the cause of action for the respondent to file the second application arose only on 13-1-2003 when the order passed under Section 45-A of the ESI Act was served upon the respondent and, therefore, the application filed in ESI Application No. 7 of 2003 was very much within the period of limitation allowed in law. He further contended that the ESI Court has recorded a finding even on the question of demands made by the Corporation, therefore, there is no ground to interfere with the said finding. Alternatively, the learned Counsel submitted that if for any reason this Court were to hold that the second application was not maintainable in view of Section 77(1-A) of the ESI Act, since there is no clear finding as to the merits of the demands made by the Corporation in its order under Section 45-A of the ESI Act and other demands made, the matter requires to be remanded to the ESI Court for further adjudication. 8. In the light of the above submissions, the points that arise for consideration in this appeal are: .(i) Whether the application filed by the respondent before the ESI Court was barred by the period of limitation provided under Section 77(1-A) of the ESI Act? .(ii) Whether the ESI Court was justified in holding that the provisions of the ESI are not applicable to the respondent-establishment? (iii) Whether the matter requires to be remanded to the ESI Court? 9. As noticed above the primary contention of the appellant is with regard to the maintainability of the application filed by respondent before the ESI Court on the ground that the said application was barred by limitation provided under Section 77(1-A) of the ESI Act. The primary objection raised by the learned Counsel for the respondent in this regard is that this plea of limitation was not raised before the ESI Court, therefore, it is not open for the appellant to raise the said plea for the first time before this Court in this appeal. 10. No doubt, the appellant has not raised this plea of limitation in its objection filed before the ESI Court. However, the said plea being the question of law, in my considered opinion, should be permitted to be urged. 10. No doubt, the appellant has not raised this plea of limitation in its objection filed before the ESI Court. However, the said plea being the question of law, in my considered opinion, should be permitted to be urged. In addition to this, it is the duty of the Court before entertaining the petition to see as to whether the application filed for any relief is within the period of limitation if any provided. According to Section 3 of the Limitation Act, 1963, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Therefore, in view of the above, even without a defence regarding limitation having not been set up, the Court before which the proceedings are initiated is under an obligation to find out as to whether the application filed for any relief is within the period prescribed under law. Therefore, I see no substance in the contention of the learned Counsel for the respondent that the appellant cannot be permitted to raise this plea for the first time before this Court. From the perusal of the records of the ESI Court, it is seen that the Court below has not considered the question as to whether the application was within the period of limitation or not, though a duty is cast on the Court to get itself satisfied that the petition was not barred by limitation. 11. Section 75 of the ESI Act sets out the matters to be decided by the ESI Court. According to Section 75(1)(g) the ESI Court is empowered to decide any matter which is in dispute between the principal employer and the Corporation or between a principal employer and an immediate employer or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act or any other matter required to be or which may be decided by the Employees Insurance Court under this Act and such question or dispute subject to the provisions of sub-section (2-A) shall be decided by the Employees Insurance Court in accordance with the provisions of the Act. Therefore, the ESI Court has jurisdiction to decide the question as to whether any particular establishment is coverable under the provisions of the ESI Act, if such question is raised. Section 77 of the ESI Act deals with commencement of proceedings before the ESI Court. According to sub-section (1) of Section 77 of the ESI Act any proceedings before the ESI Court should be commenced by filing an application. Sub-section (1-A) of Section 77 of the ESI Act provides for period of limitation. According to this sub-section, every application to be filed under sub-section (1) of Section 77 of the ESI Act should be made within a period of three years from the date on which the cause of action arises. Of course explanation to this sub-section explains as to what constitutes the cause of action with reference to different circumstances. We are not very much concerned about this explanation. There is no dispute that the respondent was served with the order dated 13-3-1996 intimating him that with effect from 28-5-1990 provisionally the establishment is covered under the ESI Act and this order has been served on the partner of the respondent admittedly on the same day. Only after receipt of this order, the respondent filed ESI Application No. 7 of 1997 contending that the establishment is not coverable under the provisions of the ESI Act. Thus, the cause of action for the respondent to question the decision to provisionally cover the establishment under the provisions of the ESI Act arose on 13-3-1996 itself, when the order was served on him. According to Section 9 of the Limitation Act where once time has begun to run, no subsequent inability to institute a suit or make application stop it. The earlier application filed by the respondent questioning the correctness of the decision of the appellant to cover respondent under the provisions of the ESI Act was filed within the period of limitation provided under Section 77(1-A) of the ESI Act. The said application came to be dismissed for non-prosecution in the year 2001. Admittedly, no application for restoration of the said application was filed. Thus, the respondent has not made any effort to get the earlier application restored. However, the respondent chose to file a second application in the year 2003, after receipt of the order passed by the appellant under Section 45-A of the ESI Act. Admittedly, no application for restoration of the said application was filed. Thus, the respondent has not made any effort to get the earlier application restored. However, the respondent chose to file a second application in the year 2003, after receipt of the order passed by the appellant under Section 45-A of the ESI Act. May be the respondent had the right to question the correctness of the order passed under Section 45-A of the ESI Act in respect of the demands made therein, and for that purpose the cause of action arose only after the receipt of the order under Section 45-A of the ESI Act. However, the order under Section 45-A of the ESI Act has been passed on the basis of the earlier order dated 13-3-1996 whereunder, the respondent-establishment was provisionally covered under the provisions of ESI Act. Even in the second application, the respondent has sought for a declaration that the provisions of the ESI Act are not applicable to this establishment. The said relief sought in the second petition, in my opinion was clearly barred by limitation provided under Section 77(1-A) of the ESI Act. According to subsection (2) of Section 29 of the Limitation Act, where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law. The ESI Act is a special Act. Therefore the period of limitation provided under Section 77(1-A) of the ESI Act will have to be treated as the period of limitation provided under the Limitation Act and Section 3 of the Limitation Act is applicable. In other words if an application under Section 75(1)(g) of the ESI Act is filed beyond the period of three years from the date on which the cause of action arose, such application will have to be rejected as barred by limitation. In other words if an application under Section 75(1)(g) of the ESI Act is filed beyond the period of three years from the date on which the cause of action arose, such application will have to be rejected as barred by limitation. In the case on hand, admittedly the second application filed by the respondent in the year 2003 for the relief of declaration that the provisions of the ESI Act are not applicable to its establishment, is clearly barred by time as cause of action for the respondent to seek such relief arose on 13-3-1996 itself. The ESI Court has not at all considered this aspect of the matter, though it was under an obligation to verify as to whether the application was barred by law of limitation or not. Therefore, I am of the opinion that the ESI Court was not justified in answering issues 1 and 2 in favour of the respondent as the petition filed before it for that relief was barred by limitation provided under Section 77(1-A) of the ESI Act. In this view of the matter, I answer Point Nos. 1 and 2 in the affirmative. 12. Inview of the above finding, it is not open to the respondent to contend that the provisions of ESI Act are not applicable to its establishment. 13. As noticed earlier in the second application filed before the ESI Court, the respondent has questioned the correctness of the demands made in different notices and also in the order passed under Section 45-A of the ESI Act. As could be seen from the order of the ESI Court, the Court has not gone into the merits of the said application as the ESI Court has answered the issue regarding the applicability of the provisions of the Act against the ESI Corporation. In that view of the matter, the ESI Court has not gone into the correctness of the claim made by the Corporation. In para 18 of the order, the ESI Court has observed that as the establishment is not covered under the Act, the question of paying either contribution or interest do not arise. In that view of the matter, the ESI Court has set aside the demands made by the Corporation. In para 18 of the order, the ESI Court has observed that as the establishment is not covered under the Act, the question of paying either contribution or interest do not arise. In that view of the matter, the ESI Court has set aside the demands made by the Corporation. However, in view of my finding that the petition filed by the respondent for declaration that the provisions of ESI Act are not applicable to its establishment was barred by limitation under Section 77(1-A) of the ESI Act and that the finding of the ESI Court in this regard is not legal and since the ESI Court has not considered the correctness of the demands made in the notices as well as in the order passed under Section 45-A of the ESI Act, the matter requires to be remanded to the ESI Court for consideration of the correctness of demands made by the Corporation. The respondent should be given opportunity to lead evidence with regard to the demands made by the Corporation. The respondent should also be given an opportunity to question the correctness of the order passed under Section 45-A of the ESI Act. For this limited purpose it is necessary to remand the matter to the ESI Court. Accordingly, Point No. 3 is answered. 14. In view of the appeal is allowed in part. The order dated 4-9-2004 passed by the Presiding Officer, Labour-cum-ESI Court, Mangalore, in ESI Application No. 7 of 2003 is hereby set aside. It is ordered that the ESI Application No. 7 of 2003 filed by the respondent herein seeking declaration that the provisions of ESI Act are not applicable to its establishment is barred by limitation provided under Section 77(1-A) of the ESI Act as such it is dismissed to that extent. The matter is remanded to the ESI Court for fresh consideration with regard to the validity and correctness of the demands made by the Corporation as well as the order passed under Section 45-A of the ESI Act. Office to return the records to ESI Court along with a copy of this judgment.