JUDGMENT Amitava Lala, J.
1. This appeal has been preferred from the order dated 10th January, 2008 passed by concerned Civil Judge, which is the 'Court' as per The Employees' State Insurance Act, 1948. There is a provision of appeal under Section 82 of the said Act which is as follows:
82. Appeal- (1) Save as expressly provided in this section, no appeal shall lie from an order of an Employees' Insurance Court, (2) An appeal shall lie to the High Court from an order of an Employees' Insurance Court if it involves a substantial question of law.
(3) The period of limitation for an appeal under this section shall be sixty days.
(4) The provisions of Sections 5 and 12 of the (Limitation Act, 1963 (36 of 1963)), shall apply to appeals under this section.
2. From the plain reading of the provision it appears to us that the appeal shall lie to the High Court if it involves any substantial question of law. According to the appellant, the substantial question of law is that the cooperative society is not liable to pay the amount as per the Act, hence, the proceeding is not maintainable. Admittedly, an appeal is pending before this High Court on the self - same question.
3. The learned Counsel appearing for the appellant contended before this Court that subsequent to preferring earlier appeal when a garnishee proceeding was initiated, it had initiated a writ petition before the High Court when it was directed the authority to consider the question of pre-deposit for preferring an appeal. According to us pre-deposit is essential part of revenue law which cannot be avoided as a matter of course.
4. Learned Counsel further contended that as per Section 75(2-B) Court may for the reasons to be recorded in writing, waive or reduce the amount to be deposited under such sub section as a condition of hearing of the proceeding. Therefore, dispensation is discretion in the hands of the Courts under the Act which should not be interfered with as a matter of course. The Court of competent jurisdiction by the order impugned held that since the appeal is pending before the High Court from an earlier order dated 4th March, 2004, it cannot waive the deposit. However, according to the learned Counsel, although the appeal is pending but the rejection of such prayer consequently the appeal on such ground is giving fresh cause of action to prefer the appeal.
5. According to us, the cause of action is not an independent cause of action but incidental to earlier cause of action, therefore, no substantial question of law for preferring an appeal is independently available to us. Multiplicity of proceedings should be avoided. Moreover, it is true to say that unless the question of maintainability finally resolved, the question of waiver cannot be assailed. The appellant cannot blow hot and cold at the same time. The question of survival as raised by the learned Counsel cannot be considered now only out of sympathy when the scope of appeal is limited only on the substantial question of law.
6. In such a situation, we cannot admit the appeal and accordingly the same is dismissed, however, without imposing any cost. But passing of this order will no way affect the right of the appellant to make any application for amendment of the pending appeal or make any interlocutory application in the pending appeal from the order impugned.