Hiranya Bora vs Indian National Trade Union Congress And Ors.

Heard Mr. Devashis Baruah, the learned counsel for the petitioner. Also heard Mr. Nishitendu Dhar, the learned counsel for the respondents No. 1

and 2 as well as Mr. Gautam Choudhury, the learned counsel for the respondents No. 3 to 13.

2. By this revision under section 115 CPC, the petitioner has challenged the order dated 26.02.2018, passed by the learned Civil Judge, No. 3,

Kamrup (Metropolitan), Guwahati, in T.S. No. 77/2014, whereby the said suit was dismissed on being abated on the death of deceased defendant

No. 2. By the same order, the learned trial Court had also rejected two other petitions, viz., (i) petition No. 4934/2017 filed by the petitioner for striking

out the respondents No. 3 to 13, and (ii) petition No. 4935/17 filed by the petitioner for recording compromise of the suit.

At the outset, the learned counsel for the petitioner had submitted that if the learned trialCourt had allowed petition No. 4935/2017, the suit would

have been disposed-off on a compromise decree, as such, if the said petition is interfered with in this revision, it would have the effect of disposing of

the suit on compromise. Hence, this revision was filed under section 115 CPC. However, if on facts, this Court is not inclined to exercise jurisdiction

under section 115 CPC, then this Court may invoke its extraordinary superintending jurisdiction under Article 227 of Constitution of India to pass any

such order as it may deem fit and proper.

The petitioner herein is the plaintiff in the said TS No. 77/2014. In the plaint, the caseprojected by the petitioner, in brief, is that he is the General

Secretary (Administration) of Indian National Trade Union Congress, Assam Branch, (hereinafter referred to as “INTUC-Assamâ€​ for short),

which is a registered Trade Union and a body corporate having perpetual seal and can sue or be sued in its name. It was further projected that the

triennial session of INTUC-Assam was scheduled to be held on 25th and 26th February, 2014. The said meeting was cancelled. In his capacity as the

General Secretary (Administration), the petitioner had informed all the affiliated unions that the triennial session would be held on 3rd and 4th March,

2014. However, the then President of INTUC-Assam, i.e. defendant No. 2 in the suit (since deceased), as well as the respondent No. 2 herein, acting

as the President of the Reception Committee, issued a communication dated 26.02.2014, by which the triennial session of INTUC-Assam, scheduled

on 3rd and 4th March, 2014 was postponed to 8th and 9th March, 2014. Being aggrieved by the said communication, the petitioner had instituted the

said suit and had prayed for the following reliefs:-

a. Decree for declaration that the defendants are bound by the Constitution of the defendant No. 1;

b. Decree for declaration that the defendant Nos. 2 and 3 have no authority and/or jurisdiction to call for the Triennial Session on 8th and 9th of

March, 2014 vide the communication dated 26.02.2014;

c. Decree for declaration that the communication bearing No. RMC-8/CRL/2014/1051-1200 dated 26.02.2014 issued by the defendant Nos. 2 and 3 is

null and void, void ab initio and is not operative in law and accordingly is not binding upon the Members of the defendant No.1;

d. For permanent injunction restraining the defendants, each and every one of them, their representatives, accomplices, agents, servants, nominees,

etc. from holding any Triennial Session of the Defendant No. 1 in terms with the communication bearing No. RMC8/CRL/2014/1051-1200 dated

26.02.2014 issued by the defendant Nos. 2 and 3 and/or also from holding any other meeting of the defendant No. 1 without following the provision of

the Constitution of the defendant No. 1;

e. Cost of the suit;

f. For any other relief(s) the Plaintiff is entitled to in law and in equity.

The learned counsel for the petitioner submits that along with the suit, the petitioner hadalso prayed for ad-interim injunction, which was numbered

as Misc.(J) Case No.101/14. The defendant No.1, i.e., INTUC-Assam appeared by filing a caveat.

It is submitted that the learned trial Court in its order dated 06.03.2014, while passingad-interim injunction, had recorded that caveat was filed by

respondent No. 1, i.e., INTUC-Assam, represented by Achyut Kumar Sarmah, by referring him as “the so-called General Secretaryâ€​. Thereafter,

the ad-interim injunction was made absolute by order dated 12.06.2017, inter alia, by holding that the President of the respondent No. 1 or the

President of the Reception Committee of respondent No. 1 had not been assigned the said task of convening such session.

It is submitted that in course of the suit, the President of INTUC, National Headquarters,New Delhi, had passed an Office order dated 27.09.2017,

for conduct of elections in INTUC, which was sub-judice before court. In the meantime, the defendant No.2 in the suit, namely, Mrs. Renuka Devi

Borkataki, President of INTUC- Assam had expired and the INTUC, Central Committee had desired that an early election of INTUC- Assam be

held to avoid the vacuum in the absence of President. Hence, the petitioner as well as the Working Committee as on 08.03.2014, were requested to

ensure that no cases are pending in any court and that the elections be conducted within January, 2018. It was further provided that till such election is

completed, the Vice President of the Working Committee will be the Acting President of INTUC- Assam and that the petitioner will continue as

General Secretary (Administration). It was mentioned that the said order was to come into force only after disposal of the court cases.

Thereafter, the Working Committee of INTUC- Assam had held its meeting on16.11.2017, inter alia, authorizing Shri Md. Harisuz Zamal and Shri

Achyut Kumar Sarmah, Secretary to sign all papers related to court cases on behalf of the respondent No. 1, i.e., INTUC- Assam. Accordingly, by

filing petition No. 4935/17 dated 17.11.2017, under Order XXIII Rule 3 read with section 151 CPC, the petitioner as well as the herein before named

Md. Harisuz Zamal and Achyut Kumar Sarmah, both representing the respondent No.1 had signed a joint compromise petition, containing a prayer for

passing a decree in terms of office order dated 27.09.2017.

By filing petition No. 4934/17 under Order I Rule 10(2) CPC, the petitioner had prayedfor striking out the names of defendants No. 4 to 14, (i.e.

respondents No. 3 to 13) because the dispute between the parties had been resolved and there was no dispute between the petitioner and the

respondents No. 3 to 13. However, on 17.11.2017, the learned counsel for the respondents No.1 and 3 (defendants No. 1, 2 and 3) had appeared

before the learned trial court and had submitted that he had no knowledge of said petition, which was being filed behind his back and that the

defendants No.1 and 3 would file an objection against the said petitions. On the basis of submissions made by the learned counsel for the respondents

No. 1 and 3 to the effect that the two signatories on behalf of the respondent No.1 were not the parties to this suit, the learned trial Court had directed

the said two signatories to be present on the next date.

The learned counsel for the petitioner has submitted that on 14.08.2017, the defendantNo. 2, i.e. the then President, INTUC- Assam had died. It is

submitted that the post of President, INTUC is not a personal or inheritable property, as such, there is no way that a legal representative could have

inherited the office of President, INTUC- Assam. Thus, as no one was appointed as the President, INTUC- Assam, there was no question of

abatement of the suit. It is submitted that there was no requirement of carrying out of any substitution within the meaning of Order XXII Rule 4 CPC.

It is also submitted that as nobody can be said to be a legal representative for the office of the President of INTUC- Assam, it was the duty of the

learned trial Court to appoint someone for the purpose of proceeding with the suit as envisaged under the provisions of Order XXII Rule 4-A CPC. It

is submitted that the suit was not filed against the defendant No. 2 in her personnel capacity, but she was sued in her capacity as President, INTUC-

Assam. Moreover, the learned trial Court by order dated 12.06.2017, had held that President had no role to play as no duty was entrusted upon her for

convening biennial or triennial meeting.

The learned counsel for the petitioner has further submitted that as on date, no one hadchallenged the decision taken in the meeting of the Working

Committee held on 16.11.2017, appointing the said Shri Harisuz Zamal and Shri Achyut Kr. Sarmah to sign all court papers on behalf of the

respondent No.1 and, as such, the rejection of compromise was not sustainable. It is also submitted that before dismissing the suit on the ground of

abatement, the learned trial Court did not make any endeavour to ascertain whether the right sue had survived or not, which, according to him, is a

condition precedent for passing orders under the provisions of Order XXII Rule 2 CPC.

In support of his submissions, the learned for petitioner has relied on the followingcases:-

a. Banwari Lal (Dead) by LRs and Anr. Vs. Balbir Singh, (2016) 1 SCC 607.

b. Shri Rikhu Dev, etc. Vs. Som Dass (Deceased) through his chela Shiam Dass, (1976) 1 SCC 103;

c. Dhurandhar Prasad Singh Vs. Jai Prakash University and Ors, (2001), 6 SCC 534;

d. B. Rajeevi R. Hegde Vs. Addl. Agricultural Income Tax Officer (1st Circle); MANU/KE/0104/1980.

The learned counsel for the respondents No.1 and 2 has submitted that in this case,petition No. 4935/17, filed under Order XXIII Rule 3 CPC was

signed by Shri Harisuz Zamal and Shri Achyut Kumar Sarmah as well as by the petitioner. It is submitted that in the affidavit appended to the said

petition, it was represented that Harisuz Zamal was the Acting President, INTUC- Assam and that Achyut Kumar Sarmah was the Secretary

(Administration and Office) of INTUC- Assam. However, those two persons were not the parties to this suit and that they had neither submitted their

credentials, nor any rubber stamp was affixed on the said petition. Therefore, they were outsiders in the suit and therefore, the petition filed by those

two persons for compromise of the suit was rightly rejected by the learned trial Court in the absence of the respondent No. 2 joining the compromise.

It is submitted that the subject matter of the suit, inter alia, was the challenge to the letterdated 26.02.2014, which was signed by two persons, out

of which one of the signatories, i.e. the then President, INTUC- Assam had died. The other signatory to the said letter was the respondent No. 2.

Hence, owing to the nature of the challenge, the said petition for compromise was not maintainable in the absence of the respondent No. 2. Moreover,

it is submitted that as the letter in question was jointly signed by the deceased defendant No.2, the right to sue did not survive.

By referring to the various clauses of the Constitution of the INTUC- Assam, it issubmitted that the Working Committee is elected from amongst

the Members of the General Council as provided under clause 15(b). Therefore, as these two Harisuz Zamal and Achyut Kumar Sarmah were not

elected as Members of the General Council, as provided under clause 14 (c) and 14(d), the National Headquarters of INTUC had no power or

authority to validly nominated said the said Harisuz Zamal as the Acting President of INTUC- Assam by their office order dated 27.09.2017 as the

Constitution of INTUC- Assam was a self contained Constitution and there was no provision in the said Constitution to provide for appointment of

anyone as the “Acting Presidentâ€​ by the INTUC- National Headquarter and it is also submitted that there existed no provision in the Constitution

of INTUC- Assam for appointment of an “Acting Presidentâ€​.

It is further submitted that if the petitioner had knowledge that there was an ActingPresident, then there was no impediment for the petitioner to

follow the procedure prescribed under Order XXII rule 4 CPC so as to substitute the said “Acting Presidentâ€​ in the place of the deceased

defendant No.2, who prior to her death was the President of INTUC- Assam.

It is submitted as there was no prohibitory order in force, the triennial meeting of INTUCwas held on 8th and 9th March, 2014 as scheduled,

wherein new office bearers were elected. It is submitted that TS No. 77/2014 was dismissed on 26.02.2018 and thereafter, the newly elected office

bearers had assumed office on 28.02.2018. According to the learned counsel for the petitioner, in view of the said subsequent development, the suit as

well the present revision filed by the petitioner had become infructuous because on the basis of the reliefs claimed, the petitioners would not be entitled

to any relief.

It is further submitted that under the provisions of Order XXII Rule 4 CPC, the effect ofabatement is automatic. Thus, if an application for setting

aside abatement, as envisaged under Order XXII Rule 9 CPC was not filed, the effect of abatement would be the inviting of dismissal of suit as right

to sue did not survive, as the impugned letter dated 26.02.2014 was signed by two persons, including the deceased defendant No.2. It is also submitted

that at every stage of Order XXII Rule 3, Order XXII Rule 4, Order XXII Rule 5, and Order XXII Rule 9 CPC, one had to apply for substitution or

for setting aside abatement, as such, the Court had no power to pass any suo motu orders for proceeding with the suit on failure of the petitioner to set

aside the effect of abatement. It is further submitted that even if recourse to the provisions of Order XXII Rule 4A CPC is taken, the leave of the

Court is required to be applied for and obtained for allowing substitution by applying the provisions of Order XXII Rule 10 CPC. In the said context,

the learned counsel for the respondents No.1 and 2 had relied on the case of Dhurandhar Prasad Singh (supra); West Bengal Housing Board Vs.

Pramila Sanfui and Ors., (2016) 1 SCC 743; Union of India Vs. Ram Charan, AIR 1964 SC 215, and Rikhu Dev (supra) to bring home the point that

to give an effect to substitution, the plaintiff is required to file a petition.

It is submitted that as the suit had abated and was dismissed, this revision under section115 CPC would not be maintainable as any order that may

be passed herein would not dispose of the suit, rather, the effect would be to revive the suit. It is further submitted that while exercising power either

under Section 115 CPC or under Article 227 of the Constitution of India, this Court cannot sit as a Court of appeal and to correct all orders, even

assuming that the order impugned herein was erroneous. It is submitted that unless the order by the learned trial court is found to be vitiated by

jurisdictional error, the order under challenge cannot be revised either under Section 115 CPC or under Article 227 of the Constitution of India. In this

regard, the learned counsel for the respondents No. 1 and 2 has relied on the case of (i) Managing Director (MIG) Hindustan Aeronautics Ltd. Vs.

Ajit Prasad Tarway, AIR 1973 SC 76; (ii) Satyanarayan Laxminarayan Hegde Vs. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137.

It is submitted that the petitioner himself had no right to sue because he was suspendedon 05.03.2014, still the petitioner had filed the suit in a

representative capacity by projecting himself to be the Secretary of INTUC. In this connection, it is submitted that the Constitution of INTUC- Assam

provided for the remedy of appeal under clause 17-F. By relying on the case of Punjab State Electricity Board and Anr., (1997) 5 SCC 120, it is

submitted that without exhausting the domestic remedy of appeal, it was not open to the petitioner to approach the civil court and therefore, there was

no right to sue and moreover, on death of the defendant No. 2, as there was no substitution there was no continuance of the right to sue and therefore,

the suit was correctly dismissed.

It is submitted that the learned trial court by going beyond the terms and the prayer madein the injunction petition, had allowed the meeting

convened on 8th and 9th March, 2014 to proceed, however, by imposing a rider that the resolutions taken therein would not be given effect to. It is

submitted that as the election of the General Council had taken place in the said meeting, the suit had become infructuous because now no Court can

pass a decree for restraining the respondent No. 1 to hold the meeting. It is, thus, submitted that as the decree of permanent injunction cannot be

granted in the suit in view of the changed circumstances, not only the suit had become infructuous but even the right to suit did not survive. It is further

submitted that the right to sue as mentioned in Order XXII CPC is also relatable to the “cause of actionâ€​ for the suit and therefore, as the cause

of action for the suit did not survive, the right to sue also did not survive. In this connection, reliance is placed on the case of (i) Shipping Corporation

of India Ltd. Vs. Machado Brothers and Ors., (2014) 11 SCC 168, (ii) Union of India and Ors. Vs. Jai Prakash Singh and Anr., (2007) 10 SCC 712;

(iii) B.D. Tripathi and Ors. Vs. Vijai Shanker Dwivedi and Ors., AIR 1976 All 97.

Thus, it is submitted that as the respondents No.1 and 2 as well as the respondents No. 3to 13 had not signed the compromise, the suit could not

have been validly and lawfully compromised in the absence of necessary parties. It is submitted that as the present General Council has taken over

w.e.f. 28.08.2018, after the suit was dismissed, the present General Council as well as the present Working Committee does not recognize the

authority of Shri Harisuz Zamal and Shri Achyut Kumar Sarmah to compromise the suit on behalf of the INTUC- Assam. Moreover, a compromise

behind the back of the respondent No. 2 could not be binding on the respondent No.2, as such, the suit cannot be disposed off on compromise. It is

further submitted that the alleged compromise was contrary to the directions given by the INTUC (National Headquarters) as well as against the

minutes of the meeting of the Working Committee held on 16.11.2017, because by the National Headquarters’ letter dated 27.09.2017 and the

minutes dated 16.11.2017 of INTUC- Assam, the petitioner was to unconditionally withdraw the suit, as such, there was no authorization to the said

Harisuz Zamal and Achyut Kumar Sarmah to have the suit decreed on compromise. Hence, it is submitted that the learned trial court had committed

no illegality or jurisdictional error by rejecting the said compromise petition, bearing petition No. 4935/17 dated 17.11.2017.

By relying on the case of Delhi Cloth and General Mills Co. Ltd. and Anr. Vs. Dharam Singh, AIR 1981 Delhi 157, it is submitted that the Courts

must show awareness of importance of democratic process of election and therefore, in the said case, by setting aside the order of injunction, the

elected workers were held to be entitled to take over and act as provided. Hence, the learned counsel for the petitioner submits that the dismissal of

the suit ought not to be interfered with.

In connection with petition for striking out the names of defendants No.4 to 14 in thesuit, it is submitted by the learned counsel for the respondents

No.1 and 2 that the respondents No.3 to 13 were not originally arrayed as the defendants in the suit. The said parties, viz., respondents No.3 to 13 got

themselves impleaded in the suit as defendants No. 4 to 14 at a later stage. Thus, the learned trial court could not have struck-of the names of the

respondents No. 3 to 13 on the petition filed by the petitioner alone.

The learned counsel for the respondents No. 3 to 13, has made his submissions in supportof the stand taken by the learned counsel for the

petitioner. It is submitted that when the President had exercised his power to appoint the petitioner herein as the General Secretary (Administration),

such power cannot be taken away by the President and therefore, once power was exercised, it was only the petitioner as the General Secretary, who

could have taken administrative steps to call the triennial session meeting. It is further submitted that the appointment of Harisuz Zamal as the Acting

President, was ratified by the INTUC in the Working Committee meeting held on 16.11.2017 and, as such, it was not open to respondents No. 1 and 2

to question such appointment and that the learned trial court had committed grave error by misconstruing and misunderstanding the fact that the

compromise petition was validly signed and presented by Mr. Harisuz Zamal and Shri Achyut Kumar Sarmah and therefore, the said order impugned

herein was liable to be set aside.

In reply, the learned counsel for the petitioner has submitted that the High Court had aninherent power to convert a revision from Section 115 CPC

to one under Article 227 of the Constitution of India. In this regard, he has placed the case of Col. Anil Kak (Retd.) Vs. Municipal Corporation, Indore

and Ors., AIR 2007 SC 1130. It is further submitted that as no one was appointed as President, either the Court was required to proceed under Order

XXII Rule 4-A CPC. The other alternative would have been to proceed under the provisions of Order XXII Rule 10 CPC and that the substitution by

way of devolution of the office of ‘President’ on the new incumbent could be done at any stage of the suit and the principles of abatement

would not apply. In this regard, the learned counsel for the petitioners placed reliance on the case of Chandra Bai (Dead) through LRs. Vs.

Khandalwal Vipra Vidyalaya Samiti and Ors., (2016) 12 SCC 534.

Considered the submissions advanced by the learned counsels for the parties. It appearsthat four points of determination arise for consideration of

this Court in this case, viz.,

a. Whether the impugned order in so far as it relates to abatement of the suit is sustainable on facts and in law?

b. Whether the learned trial court could have recognized the above named Mr. Harisuz Zamal and Shri Achyut Kumar Sarmah to compromise the

suit? And if yes, they could have compromised the suit on whose behalf?

c. Whether the compromise petition bearing petition No. 4935/17 would have resulted in the suit being decreed?

d. Whether the learned trial court was right in rejecting 4934/17 for striking out the names of respondents No.3 to 13 (defendants No.4 to 14) from the

plaint?

e. Whether this revision was maintainable on facts and in law?

Before touching the points of determination, it is deemed appropriate to address a few ofthe submissions made by the learned counsel for the

respondents No.1 and 2.

a. It was submitted that right to sue as mentioned in Order XXII CPC was relatable to the“cause of actionâ€​ for the suit and therefore, as the

cause of action for the suit did not survive, the right to sue also did not survive. In this connection, he had referred to the case of (i) Shipping

Corporation of India Ltd. (supra), (ii) Jai Prakash Singh (supra); (iii) V.D. Tripathi (supra). The said submission appears to be too far-fetched, and the

said submission appears to have no connection with the right to sue as envisaged under Order XXII CPC. None of the above cited cases are

propounding the said proposition. In context of substitution, the said submission on right to sue by the petitioner- plaintiff appears to be totally

misconceived and out of context.

b. Similarly, the point of suit having been filed without exhausting the domestic remedy ofappeal is also a totally misconceived submission at this

revisional stage, when this court is not in sesin of the issue whether the suit was maintainable or not.

c. It was also submitted that the Courts must show awareness of importance of democraticprocess of election and therefore, in the said case, by

setting aside the order of injunction, the elected workers were held to be entitled to take over and act as provided. Hence, the learned counsel for the

petitioner submits that the dismissal of the suit ought not to be interfered with. In this connection, this Court is of the considered opinion that in an

application filed by the petitioners, it is not open to this Court to take a holistic view of the matter and justify the dismissal of the suit on issues which

were neither raised in trial nor adjudicated upon by the learned trial court. Â

d. This Court was not hearing the case of rejection of plaint of the petitioner in its originaljurisdiction. Moreover, the suit had not become infructuous.

As such, neither the ratio of the cited cases of West Bengal Housing Board (supra), Shipping Corporation of India Ltd. (supra), Jai Prakash Singh

(supra), V.D. Tripathi (supra), Delhi Cloth & General Mills Co. Ltd. (supra), Mahadeo Savlaram Shelke & Ors. Vs. Pune Municipal Corporation &

Anr, (1995) 3 SCC 33, are not found to be applicable, nor these issues ought not to have been raised in this revision filed by the petitioner. Thus, in this

regard, this Court, with extreme self-restraint, is constrained to observe that the learned counsel for the respondent No.1 and 2 ought to be well

advised that unnecessary submissions, beyond the point involved in the revision eats up the precious judicial time of the Court.

The point of determination No.(b) and (c) above are co-related, as such, both the pointsof determination are taken up together. As per the

sequence of events narrated by the petitioner, Mr. Harisuz Zamal had been nominated as the Acting President of INTUC by letter dated 27.09.2017

issued by the INTUC, National Headquarters. The respondent No. 2 herein, by filing petition No. 4807/17 dated 10.11.2017, had informed the learned

trial court that the defendant No.2 had died on 05.08.2017. As per the Minutes of the Working Committee meeting of INTUC held on 16.11.2017

shows that Mr. Harisuz Zamal is mentioned as ‘President’ in resolution No.1. Therefore, by 16.11.2017, the petitioner was having knowledge

about appointment of Mr. Harisuz Zamal as “Acting Presidentâ€​ and/or “Presidentâ€​, but the petitioner did not make any prayer for substitution

of deceased defendant No.2 with Mr. Harisuz Zamal. Thus, till 17.11.2017, when the petitioner, Mr. Harisuz Zamal and Mr. Achyut Kr. Sarmah had

filed petition No. 4935/17 dated 17.11.2017 for compromise of the suit, the learned trial court, having not recognized the status of either Mr. Harisuz

Zamal as “Acting Presidentâ€​/ “Presidentâ€​ of INTUC, or of Mr. Achyut Kr. Sarmah has Secretary of INTUC, prima facie, committed no

error in not allowing compromise of the suit in view of the objection made by the learned counsel appearing for defendants No.1 and 3, i.e.

respondents No.1 and 2 herein. Thus, this Court finds no infirmity in the reasoning by the learned trial court that two complete strangers had appeared

before the court and had filed petition No. 4935/17 dated 17.11.2017.

Moreover, it is seen that in the letter dated 27.09.2017 issued by the President of INTUC,National Headquarters, it is mentioned therein that the

effect of the said letter dated 27.09.2017 will come into force only after disposal of the case. The said letter further envisaged that the petitioner would

withdraw the suit. Hence, this Court has to agree with the submissions made by the learned counsel for the respondents No.1 and 2 that there was no

scope of a compromise decree based on the said letter dated 27.09.2017. Similarly, as per the Minutes of the Working Committee Meeting held on

16.11.2017, it was recorded therein that the petitioner had expressed his view that he would not mind to withdraw the case for greater interest of the

organization. Thus, the submissions made by the learned counsel for the respondent is found acceptable that the said letter dated 27.09.2017 and

Minutes of 16.11.2017 did not envisage a compromise decree. Accordingly, on merit, the learned trial court had rightly refused compromise decree.

Interestingly, the petitioner has not disputed the appearance of respondent- defendantNo.1 before the learned trial court through the previous set of

counsel appearing for defendant No.1, 2 and 3 in the suit, or appearance of respondent No.1 in this revision through a learned counsel, who is also

appearing for respondent No.2 (i.e. defendant No.3 in the suit) as such, when one set of counsel is appearing for the defendant No.1 in the suit, till the

vakalatnama of such counsel has not been duly discharged, the trial court does not appear to have committed any error in not recognizing the

appearance of a stranger to the suit appearing through a new set of counsel. In this regard, it must be remembered that the submissions of the learned

counsel for the respondents No.1 and 2 was that there was no provision in the Constitution of INTUC- Assam that INTUC, National Headquarters

could appoint someone as “Acting President. Thus, when the respondent- defendant No.1 was appearing through another set of counsels, the

learned trial court had committed no error in not accepting compromise of the suit vide petition No.4935/17 dated 17.11.2017.

As the respondent- defendant No.1 continued to appear through its previous counsel, thelearned trial court could not have recognized the above

named Mr. Harisuz Zamal and Shri Achyut Kumar Sarmah to compromise the suit for and on behalf of the respondent No.1. However, assuming that

the said two persons were bona fide appearing for respondent No.1, yet, they could not have compromised the suit for the respondent No.2 (defendant

No.3), as such, there is no way that the suit could have been disposed of on compromise without the respondent No.2 joining such compromise.

Hence, this court is of the opinion that while there is no infirmity by the learned trial court in treating Mr. Harisuz Zamal and Shri Achyut Kumar

Sarmah as strangers. The said two persons were not impleaded as defendants. Moreover, as the respondent No.2 had not joined in the compromise,

the petition No. 4935/17 would not have resulted in the suit being decreed. The point of determination No. (b) and (c) are answered accordingly.

As regards the point of determination No.(d), in this regard, the learned counsel for therespondents No.1 and 2 had categorically stated that the

respondents No.3 to 13 (defendants No.4 to 14 in the suit) had got themselves impleaded in the suit and the said point had not been contradicted either

by the learned counsel for the petitioner or by the learned counsel for the said respondents No.3 to 13. If that be so, the learned trial court was right in

rejecting 4934/17 for striking out the names of respondents No.3 to 13 (defendants No.4 to 14) from the plaint, as once a party was added on the

strength of the prayer made by the respondents No.3 to 13, the petition No. 4934/17 dated 17.11.2017 was hit by the principles of “issue

estoppelâ€​, as such, this Court does not find any infirmity with the order passed by the learned trial court, rejecting petition No. 4934/17 for striking out

the respondents No.3 to 13 (defendants No.4 to 14 in suit).

The point of determination No.(a) is taken up now. In this connection, the stand of thelearned counsel for the petitioner is that the office of the

‘President’ is not heritable, but it devolves on individual persons by following the Constitution of the INTUC. It is seen that the petitioner is

found to have recognized and admitted the status of Mr. Harisuz Zamal as “Acting Presidentâ€​/ “Presidentâ€​ of INTUC, when it comes to

compromise of the suit. This fact situation leads to two situations, firstly, whether there was any duty on part of the petitioner to substitute the

deceased defendant No.2 or it was the duty of the learned trial court to appoint an officer of the court to represent the deceased as envisaged under

the provisions of Order XXII Rule 4-A CPC.

In this regard, it is seen that the provisions of Order XXII Rule 10 CPC provides that ifan assignment, creation or devolution of any interest is

created during the pendency of the suit, the suit may, be leave of the court, be continued by or against the persons to or upon whom such interest has

come or devolved. In this regard, the learned counsel for the petitioner had relied on the case of (i) Dhurandhar Prasad Singh (supra), (ii) Chandra Bai

(Dead) (supra), (iii) Ram Charan (supra); and (iv) Rikhu Dev (supra). A perusal of the case of Chandra Bai (supra) shows that the Hon’ble

Supreme Court had observed in paragraph 3 that â€" “We have taken note of these decisions and it appears to us that in Raj Kumar Vs. Sardari

Lal [(2004) 2 SCC 601] this Court had held that in the case of an assignment, creation or devolution of any interest during the pendency of the suit,

Order 22 Rule 10 CPC confers a discretion on the Court hearing the suit to grant leave to the person in or upon whom such interest has come to vest

or devolve to be brought on record. Bringing a lis pendens transferee on record is not as of right but is the discretion of the Court. Similarly, in the case

of Rikhu Dev (supra), Som Dass, the Mahant of a particular Landeke Dera, the defendant in the suit had died and that after the time for substitution

had lapsed, an application was filed for substitution and for setting aside abatement. Under these facts, when the appeal was held by the High Court to

have abated, the Hon’ble Supreme Court had held that the suit could have proceeded against the person on whom the interest had devolved. Thus,

it appears that the settled law on the point is that for the purpose of bringing a lis pendens transferee on record, leave of the court is required. Thus,

one must apply for leave to sue or defend, which may be by any party to the suit or even by such an interested person.

The case of Dhurandhar Prasad Singh (supra) stands in a different footing. In this case, the service of the plaintiff was terminated by defendant

No.2, who was the Secretary of the Governing Body. During the pendency of the suit, the College in question became the constituent of Bihar

University and erstwhile Governing Body ceased to exist. The suit was decreed. In execution proceeding, objection under Section 47 CPC was filed

by claiming that the decree was not executable. Under these facts, it was held by the Hon’ble Supreme Court that in cases covered by Rule 10 of

Order 22, the legislature had not prescribed any procedure that on failure to implead persons on whom interest may devolve would entail dismissal of

the suit and it was further held, that the suit may continue against the original party and the procedure entitles a person who has acquired an interest

on such property may apply to court for leave to continue the suit, which is not obligatory because if such a party does not ask for leave, he takes the

risk of decree that may be passed against the original party, which would bind him. Thus, the case of Dhurandhar Prasad Singh (supra) is not found to

be of any help to the petitioner, as the ratio of the case is that the party on whom interest devolves during the pendency of the suit, to apply for leave

of the court to continue the suit. The case of Ram Sarup Vs. Munshi, AIR 1963 SC 553 cited by the learned Counsel for the respondents No.1 and 2

is distinguishable on facts, as in this case the ratio of the case of Rikhu Dev (supra) is found to be squarely applicable.

The Hon’ble Supreme Court has observed in the case of Banwari Lal (supra) that the provisions of Order XXII are not penal in nature. It is a

rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects

of law. Therefore, following the said ratio, while this Court finds no infirmity in the decision of the learned trial court that as the deceased defendant

No.2 was not substituted, the suit had abated, this Court is inclined to provide that the suit was dismissed on strict adherence to procedural law, as

such, it would be open for the petitioner herein to make a composite application before the learned trial court for setting aside abatement and for

substitution of the deceased defendant No.2 with the person, who they consider to be the “Acting Presidentâ€​/ “Presidentâ€​ of INTUC- Assam

under the provisions of Order XXII Rule 10 CPC without requiring any application for condoning the delay, as the Hon’ble Supreme Court in the

case of Rikhu Dev (supra) has held in paragraph 10 thereof that where some of the trustees die or retire during the pendency of the suit and new

persons are elected in their place, it is a case of devolution of interest during the pendency of the suit and elected persons can be added as parties

under Order XXII Rule 10 notwithstanding that the period of limitation for impleading them had expired. Therefore, on such application being made,

the learned trial court shall consider the same and pass appropriate orders in accordance with law.

Thus, on facts, the suit could not have been disposed off even if the said two petitionsNo.4944/17 and 4934/17 was decided in favour of the

petitioner because the respondents No.1 and 2 had not consented to a compromise, moreso, because that the two signatories to petition No. 4935/17,

namely, Mr. Harisuz Zamal and Shri Achyut Kumar Sarmah were strangers in the suit. Thus, the present revision under Section 115 CPC is not

maintainable. However, it is seen that the learned trial court had committed a jurisdictional error by dismissing the suit on abatement. The office of the

President of INTUC- Assam is not heritable or transferable, as such, if any other person comes to occupy the said office, the said office shall devolve

upon the said person. Thus, by operation of the provisions of Order XXII Rule 10 CPC, such person can be added as a defendant in place of the

deceased President of INTUC. As indicated above, the Hon’ble Supreme Court had held that the office, where persons get elected or appointed,

are cases where devolution of interest takes place. Therefore, in the considered opinion of this Court, the learned trial court has committed

jurisdictional error in dismissing the suit on abatement and it ought to have granted an opportunity to the petitioner herein to apply for leave to implead

the person whom they admit to be the Acting President/ President of INTUC- Assam. Thus, this Court is inclined to invoke inherent extraordinary

superintending jurisdiction under Article 227 of the Constitution of India to set at right such jurisdictional error by passing appropriate directions as

procedural law of substitution cannot be allowed to be used as to penalize the petitioner by dismissing the suit.

As the order impugned herein, in so far as it concerns with dismissing of the suit, the saidpart of the order is found to be vitiated by jurisdictional

error on part of the learned trial court. Hence, on facts, the case of Managing Director (MIG) Hindustan Aeronautics Ltd. (supra), and Satyanarayan

Laxminarayan (supra) are distinguishable.

Resultantly, this revision stands partly allowed to the following effect:-

a. The impugned order dated 26.02.2018, passed by the learned Civil Judge, No. 3, Kamrup(Metropolitan), Guwahati, in T.S. No. 77/2014, by which

petition No. 4934/2017 filed by the petitioner for striking out the respondents No. 3 to 13 was dismissed is not interfered with and the same is upheld;

and

b. The said impugned order by which petition No. 4935/17 filed by the petitioner forrecording compromise of the suit was dismissed is not interfered

with and the same is upheld; and

c. In respect of that part of the said impugned order, in so far it relates to dismissal of the suiton being abated upon the death of the deceased

defendant No.2, is hereby interfered with by this Court by invoking the inherent and extraordinary superintending jurisdiction under Article 227 of the

Constitution of India, by providing that it would be open for the petitioner herein to make a composite application before the learned trial court for

setting aside abatement and for substitution of the deceased defendant No.2 with the person, who they consider to be the “Acting Presidentâ€​/

“Presidentâ€​ of INTUC- Assam under the provisions of Order XXII Rule 10 CPC without requiring any application for condoning the delay, and

on such application being made, the learned trial court shall consider the same and pass appropriate orders in accordance with law. In order to

facilitate the adjudication of such petition, if any, filed by the petitioners, the impugned order of dismissal of the suit on abatement be deemed to have

been set aside by this Court.

The parties are left to bear their own cost.