JUDGMENT : 1. Invoking the provisions of Section 82(2) of the Employees’ State Insurance Act, 1948 (for brevity, hereinafter called as the “Act”), this appeal has been preferred against the judgment and order dated 22.10.2011, rendered by the Civil Judge (Sr. Div.), Haridwar in O.S. No. 02/1998, M/s Durga Oil and Steel Works & Others v. Employees State Insurance Corporation & Others. Learned Judge dismissed the suit of the plaintiffs with costs thereby justifying the recovery against them which was underway on the orders of the defendant no. 1. 2. Having heard the rival contentions of learned Counsel for the parties, it transpires that the applicants M/s Durga Oil and Steel Works & Others run their industrial unit of oil expeller and steel sales at Haridwar. Somehow, office of the Employees State Insurance Corporation (for short, ESIC) based at Kanpur got the information that this unit has employed more than ten persons to run its business. Hence, notices were sent to the applicants to get the firm registered in the said office and make the contribution for all the employees in order to insure them, as envisaged under the Act. The applicants denied the contents of such notice/notices by way of sending several letters, which were never responded to by the office of ESIC. Rather, an inspection was allegedly done by Mr. Baldev Raj, Inspector, ESIC, on 6.8.1993. It is this inspection report which was the basis of sending the recovery orders against the firm of the applicants. So, the applicants even before the present proceedings (OS No. 02/1998) instituted a suit no. 35/1997 in the Court of Civil Judge (Sr. Div.), Haridwar seeking to restrain the defendants from realizing such recovery, but the said suit was later on withdrawn by the firm on 6.11.1997 with liberty to file it afresh. Thereafter this miscellaneous application was moved by the applicants/plaintiffs in the Court of Civil Judge (Sr. Div.), Haridwar on 7.1.1998, but such application was got registered by the said court as Original Suit No. 02/1998. 3. Averments in such application (stated supra) were almost similar. The written statement was filed by ESIC denying the pleadings contained in the application. After rendering opportunity to both the parties to examine their respective witnesses, the suit was dismissed by the court below. 4. 3. Averments in such application (stated supra) were almost similar. The written statement was filed by ESIC denying the pleadings contained in the application. After rendering opportunity to both the parties to examine their respective witnesses, the suit was dismissed by the court below. 4. Pursuant to filing the instant appeal before this Court, the following substantial questions of law were formulated: (1) Whether the learned Court below was justified in dismissing the case of the plaintiffs-appellants without recording any finding as to how the establishment of the plaintiffs-appellants is covered under the Employees’ State Insurance Act? (2) Whether the learned Court below was justified in holding that the case of the plaintiffs-appellants was barred by Rule 1(4) of Order XXIII of the Code of Civil Procedure? (3) Whether the learned Court below was justified in passing the impugned judgment on inadmissible evidence? 5. I feel that such questions no. 1 and 2 do cover the question no. 3 as well. Therefore, I would like to confine my findings to the said two questions only. 6. On perusal of the impugned judgment, it appears that the learned Court below has based its findings mainly on the ground that the applicants could not submit any replication in response to the written statement of the defendants. So, in absence of such replication, all the averments, as have been stated by the defendants/opposite parties in their written statement, were accepted as true. 7. Learned Counsel on behalf of the applicants/appellants has taken this Court to the relevant provisions, right from Order VI Rule 1 to Order VIII Rule 9 of the Civil Procedure Code. All these provisions contained in the Civil Procedure Code contemplate about the pleadings of the parties. Such pleadings, as provided under Order VI Rule 1, do mean the plaint or the written statement. Order VI Rule 5, which was to provide opportunity to the parties for submitting further and better statement, or particulars, had been omitted w.e.f. 1.7.2002. So, since then, the opportunity to the plaintiffs had been closed even to make further and better statement, or particular of the nature of the claim. 8. Order VI Rule 5, which was to provide opportunity to the parties for submitting further and better statement, or particulars, had been omitted w.e.f. 1.7.2002. So, since then, the opportunity to the plaintiffs had been closed even to make further and better statement, or particular of the nature of the claim. 8. Order VIII Rule 6(3) and Order VIII Rule 6-A(3), which are analogous in nature though with a little difference that Order VIII Rule 6(3) makes the provision for the plaintiff to answer to a claim of set-off by filing the written statement in reply, while Order VIII Rule 6-A(3) makes the provision for the plaintiff, providing an opportunity to the plaintiff to file his written statement in answer to the counter-claim of the defendant. 9. No subsequent pleading, other than the written statement to answer the set-off and counter-claim, can be filed by the plaintiff, as has been adumbrated in Order VIII Rule 9 of the Code, except by the leave of the Court and upon such terms as the Court thinks fit. 10. Although the applicants/plaintiffs did not consider it proper to file any subsequent pleading in response to the several averments made by the defendants/opposite parties in their written statement, however, I think that there was no need for them to seek such leave because primarily the burden of proof to prove all the statements/averments, as raised by the opposite parties in their written statement, was on them and the plaintiffs were not supposed to file the additional written statement/replication denying such averments of the respondents/opposite parties. 11. On perusal of the impugned judgment, I think that the whole case is based upon the so-called inspection report of Inspector Baldev Raj made on 6.8.1993, which has been claimed by the plaintiffs/applicants to be ex parte in nature, as it neither bears the signature of any employer nor any of the employees, who, on the basis of cashbook, have been stated to be found paid their wages. 12. 12. Learned Counsel of the appellants herein has argued that although there are less than ten workers in the industrial unit of the plaintiffs, however even if it is found for a moment that the payment has been made to more than ten workers, then out of those ten workers, many might be purely casual workers, who worked for a day or two and the firm was honest enough to make the entry of all the payments, made to such workers, in its cashbook. The attendance register of the firm nowhere adverts the employment of ten or more than ten workers at a time. 13. As regards the withdrawal of the Original Suit No. 35/1997, filed in the Court of Civil Judge (Sr. Div.) concerned, it was for the reason that such suit was filed in a Court showing its wrong title because Section 75(3) of the Act bars the jurisdiction of Civil Court to decide or deal with any question or dispute pertaining to the Act. So, the proceedings should have been initiated in the Employees’ Insurance Court, showing its right title/name. 14. It has not been disputed that by some notification issued by the U.P. Government way back in the year 1952, the Court of Civil Judge was conferred with the powers of Employees’ Insurance Court and any proceeding initiated in such Court would have been registered as a miscellaneous case, rather than the original suit, as is contemplated under Section 77(1) of the Act. The opening words of such provision read that “The proceedings before an Employees’ Insurance Court shall be commenced by application.” 15. Therefore, as indicated above, firstly the proceedings should not have been instituted in the Court of Civil Judge and, secondly, it should not have been registered as an Original Suit. For these reasons, in order to rectify the said errors, the plaintiffs withdrew the Original Suit No. 35/1997 and moved this application on 7.1.1998, i.e. soon after the withdrawal of such suit. 16. The above discussion also entails the answer that since it was not a suit, hence issuance of the notice, as contemplated under Section 80 of the Code, was not warranted or required. 17. 16. The above discussion also entails the answer that since it was not a suit, hence issuance of the notice, as contemplated under Section 80 of the Code, was not warranted or required. 17. In view of what have been stated hereinabove, I find that the learned Court below was not justified in dismissing the case of the applicants/appellants and was also not right in holding that the case of the plaintiffs/appellants was barred by Rule 1(4) of the Order XXIII of the Code. Accordingly, I answer the substantial questions of law in favour of the appellants and against the respondents. 18. Consequently, the impugned judgment and order dated 22.10.2011 is set aside. Let the lower court record be sent back. 19. This Court, vide order dated 24.2.2012, had stayed the recovery subjected to deposit of rupees fifty thousand by the appellants before the Court concerned and had also ordered that the said amount shall be kept in interest earning fixed deposit. 20. It is directed that the Court concerned shall release the aforesaid amount, along with the interest which it did earn, to the appellants without asking for any surety/security from them.