HIRANYA BORA V. INDIAN NATIONAL TRADE UNION CONGRESS AND 11 ORS.

CRP/27/2018

AI Insights

The case revolves around a dispute within the Indian National Trade Union Congress (INTUC), Assam Branch, concerning the scheduling and authority to convene a triennial session. Hiranya Bora, the petitioner and General Secretary (Administration) of INTUC-Assam, challenged the authority of the then President and others to reschedule the session. The trial court's dismissal of the suit due to abatement following the death of the defendant No. 2 and rejection of compromise and striking out petitions led to this revision. The High Court examined the procedural and substantive aspects of the case, including the authority to compromise and the impact of abatement on the continuation of the suit.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 731901 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 13-06-2018
• Assessment Year: misc
• Other Referred Cases: Banwari Lal (Dead) by LRs and Anr. Vs. Balbir Singh, Shri Rikhu Dev, etc. Vs. Som Dass (Deceased) through his chela Shiam Dass, Dhurandhar Prasad Singh Vs. Jai Prakash University and Ors, B. Rajeevi R. Hegde Vs. Addl. Agricultural Income Tax Officer (1st Circle), Managing Director (MIG) Hindustan Aeronautics Ltd. Vs. Ajit Prasad Tarway, Satyanarayan Laxminarayan Hegde Vs. Mallikarjun Bhavanappa Tirumale, West Bengal Housing Board Vs. Pramila Sanfui and Ors., Union of India Vs. Ram Charan, Delhi Cloth and General Mills Co. Ltd. and Anr. Vs. Dharam Singh, Shipping Corporation of India Ltd. Vs. Machado Brothers and Ors., Union of India and Ors. Vs. Jai Prakash Singh and Anr., B.D. Tripathi and Ors. Vs. Vijai Shanker Dwivedi and Ors., Ram Sarup Vs. Munshi, Chandra Bai (Dead) through LRs. Vs. Khandalwal Vipra Vidyalaya Samiti and Ors.
• Laws Referred To: CPC, Constitution of India
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: N DHAR; K K GOSWAMI; T U LASKAR; G CHOUDHURY; A REHMAN; S KAUSHIK
• Assessee Lawyers: D BARUAH; N UPADHYAY; B BARMAN
• Keywords: Abatement; Compromise Decree; Jurisdictional Error; Substitution; Extraordinary superintending jurisdiction
• Section: 22; 10; 3; 115; 4; 1; 227

Judgement Text

"Page No.# 1/20 GAHC010052372018 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP 27/2018 1:HIRANYA BORA S/O. LT. K.P. BORA, R/O. TARUN NAGAR, GUWAHATI, DIST. KAMRUP (M), ASSAM VERSUS 1:INDIAN NATIONAL TRADE UNION CONGRESS AND 11 ORS. HAVING ITS CENTRAL OFFICE SITUATED AT K.C. SEN ROAD, PALTANBAZAR, GHY., DIST. KAMRUP (M), ASSAM 2:SARAT BARKATAKEY PRESIDENT RECEPTION COMMITTEE INDIAN NATIONAL TRADE UNION CONGRESS ASSAM BRANCH K.C. SEN ROAD PALTANBAZAR GUWAHATI DIST. KAMRUP (M) ASSAM 3:AOC LABOUR UNION A REGD. TRADE UNION AFFILIATED BY INTUC HAVING ITS REGD. OFFICE AT DIGBOI P.O. AND P.S. DIGBOI DIST. TINSUKIA ASSAM REP. BY ITS PRESIDENT NAMELY TARUN HAZARIKA. 4:ASSAM CHAH KARMACHARI SANGHA (CENTRAL) A REGD. TRADE UNION RECOGNIZED BY INTUC HAVING ITS REGD. OFFICE AT P.O. AND P.S. DIBRUGARH Page No.# 2/20 DIST. DIBRUGARH ASSAM REP. BY ITS GENERAL SECRETARY NAMELY SRI GIRISH BORPATRA GOHAIN. 5:BCPL NIRMAN SHRAMIK UNION A REGD. TRADE UNION AFFILIATED BY INTUC HAVING ITS REGD. OFFICE AT LAPETKATA GHUROONIA P.O. LAPETKATA P.S. BORBORUA DIST.. DIBRUGARH ASSAM REP. BY ITS GENERAL SECRETARY NAMELY SRI NITUL BARUA. 6:ONGC PURBANCHAL EMPLOYEES ASSOCIATION A REGD. TRADE UNION AFFILIATED BY INTUC HAVING ITS REGD. OFFICE AT ONGC COLONY SIVASAGAR P.O. AND P.S. SIVASAGAR DIST. SIVASAGAR ASSAM REP. BY ITS GENERAL SECRETARY NAMELY SRI SANJIB BARUA 7:UNITED CONSTRUCTION WORKERS UNIONS OF ASSAM A REGD. TRADE UNION AFFILIATED BY INTUC HAVING ITS REGD. OFFICE AT SIVASAGAR TOWN P.O. AND P.S. SIVASAGAR DIST. SIVASAGAR ASSAM. 8:ACCORD REFINERY WORKERS UNION (CONTRACT WORKERS UNION NRL) A REGD. TRADE UNION AFFILIATED BY INTUC HAVING ITS REGD. OFFICE AT TELGARAM KANAIGHAT P.O. KANAIGHAT P.S. GOLAGHAT DIST. GOLAGHAT ASSAM REP. BY ITS GENERAL SECRETARY NEMELY SRI PRANAB CHETIA. Page No.# 3/20 9:OIL INDIA EMPLOYEES UNION A REGD. TRADE UNION AFFILIATED BY INTUC HAVING ITS REGD. OFFICE AT DULIAJAN P.O. AND P.S. DULIAJAN DIST. DIBRUGARH ASSAM REP. BY ITS GENERAL SECRETARY NAMELY TIRTHA NATH SARMAH. 10:AOC CONTRACTUAL LABOUR UNION (INTUC) DIGBOI A REGD. TRADE UNION AFFILIATED BY INTUC HAVING ITS REGD. OFFICE AT DIGBOI P.O. AND P.S. DIGBOI DIST. TINSUKIA ASSAM REP. BY ITS GENERAL SECRETARY NAMELY PURNA KANTA PHUKAN. 11:INDUSTRIAL WORKERS UNION TINSUKIA A REGD. TRADE UNION AFFILIATED BY INTUC HAVING ITS REGD. OFFICE AT MAJUM ROAD P.O. AND P.S. TINSUKIA DIST. TINSUKIA ASSAM REP. BY ITS GENERAL SECRETARY NAMELY SRI BATCHA BABU SINGH. 12:STEELSWORTH WORKERS UNION TINSUKIA A REGD. TRADE UNION AFFILIATED BY INTUC HAVING ITS REGD. OFFICE AT MAKUM ROAD P.O. AND P.S. TINSUKIA DIST. TINSUKIA ASSAM REP. BY ITS GENERAL SECRETARY NAMELY SRI BATCHA BABU SING Page No.# 4/20 BEFORE HON’BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioner : Mr. D. Baruah, Ms. N. Upadhyay, Mr. B.Barman Advocates for Respondents No.1 & 2 : Mr. N. Dhar, Mr. K.K. Goswami, Mr. T. U. Laskar. Advocates for Respondents No.3 to 13 : Mr. G. Choudhury, Ms. A. Rehman, Ms. S. Kaushik Date of hearing : 23.05.2018, 31.05.2018. Date of order : 13.06.2018. JUDGMENT AND ORDER (CAV) 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. 3. At the outset, the learned counsel for the petitioner had submitted that if the learned trial Court 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. Page No.# 5/20 4. The petitioner herein is the plaintiff in the said TS No. 77/2014. In the plaint, the case projected 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-Assam” 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. RMC- 8/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. 5. The learned counsel for the petitioner submits that along with the suit, the petitioner had also prayed for ad-interim injunction, which was numbered as Misc.(J) Case No.101/14. The defendant Page No.# 6/20 No.1, i.e., INTUC-Assam appeared by filing a caveat. 6. It is submitted that the learned trial Court in its order dated 06.03.2014, while passing ad-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 Secretary”. 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. 7. 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. 8. Thereafter, the Working Committee of INTUC- Assam had held its meeting on 16.11.2017, 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. 9. By filing petition No. 4934/17 under Order I Rule 10(2) CPC, the petitioner had prayed for striking out the names of defendants No. 4 to 14, (i.e. respondents No. 3 to 13) because the dispute Page No.# 7/20 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. 10. The learned counsel for the petitioner has submitted that on 14.08.2017, the defendant No. 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. 11. The learned counsel for the petitioner has further submitted that as on date, no one had challenged 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. Page No.# 8/20 12. In support of his submissions, the learned for petitioner has relied on the following cases:- 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. 13. 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. 14. It is submitted that the subject matter of the suit, inter alia, was the challenge to the letter dated 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. 15. By referring to the various clauses of the Constitution of the INTUC- Assam, it is submitted 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 Page No.# 9/20 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 President” 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 President”. 16. It is further submitted that if the petitioner had knowledge that there was an Acting President, 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 President” in the place of the deceased defendant No.2, who prior to her death was the President of INTUC- Assam. 17. It is submitted as there was no prohibitory order in force, the triennial meeting of INTUC was 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. 18. It is further submitted that under the provisions of Order XXII Rule 4 CPC, the effect of abatement 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 Page No.# 10/20 (supra) to bring home the point that to give an effect to substitution, the plaintiff is required to file a petition. 19. It is submitted that as the suit had abated and was dismissed, this revision under section 115 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. 20. It is submitted that the petitioner himself had no right to sue because he was suspended on 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. 21. It is submitted that the learned trial court by going beyond the terms and the prayer made in 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 Page No.# 11/20 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 action” 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. 22. Thus, it is submitted that as the respondents No.1 and 2 as well as the respondents No. 3 to 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. 23. 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. 24. In connection with petition for striking out the names of defendants No.4 to 14 in the suit, it is submitted by the learned counsel for the respondents No.1 and 2 that the respondents No.3 to Page No.# 12/20 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. 25. The learned counsel for the respondents No. 3 to 13, has made his submissions in support of 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. 26. In reply, the learned counsel for the petitioner has submitted that the High Court had an inherent 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. 27. Considered the submissions advanced by the learned counsels for the parties. It appears that 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 Page No.# 13/20 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? 28. Before touching the points of determination, it is deemed appropriate to address a few of the 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 action” 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 of appeal 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 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 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. Page No.# 14/20 d. This Court was not hearing the case of rejection of plaint of the petitioner in its original jurisdiction. 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. 29. The point of determination No.(b) and (c) above are co-related, as such, both the points of 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 President” and/or “President”, 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 President”/ “President” 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. 30. 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 Page No.# 15/20 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. 31. Interestingly, the petitioner has not disputed the appearance of respondent- defendant No.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. 32. As the respondent- defendant No.1 continued to appear through its previous counsel, the learned 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. Page No.# 16/20 (b) and (c) are answered accordingly. 33. As regards the point of determination No.(d), in this regard, the learned counsel for the respondents 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 estoppel”, 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). 34. The point of determination No.(a) is taken up now. In this connection, the stand of the learned 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 President”/ “President” 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. 35. In this regard, it is seen that the provisions of Order XXII Rule 10 CPC provides that if an 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 – “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 Page No.# 17/20 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. 36. 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. 37. 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 Page No.# 18/20 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 President”/ “President” 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. 38. Thus, on facts, the suit could not have been disposed off even if the said two petitions No.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. Page No.# 19/20 39. As the order impugned herein, in so far as it concerns with dismissing of the suit, the said part 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. ORDER 40. 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 for recording 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 suit on 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 President”/ “President” 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. Page No.# 20/20 41. The parties are left to bear their own cost. JUDGE Comparing Assistant "