Dismissed

Asomiya Club v. Indian National Congress

Gauhati HC21 Nov 2019RSA/51/2006

Case brief

AI extract

What is this about?

In this title appeal concerning ejectment, the Gauhati High Court dismissed the petition. The court held that striking off the defunct Indian National Congress from the respondents list without proof of interest devolution rendered the appeal for ejection unmaintainable, thus dismissing it.

What did the court decide?

null

What the court decided

Asomiya Club Vs Indian National Congress — Property and Title | Gauhati HC (2019)

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Page No.# 1/8

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GAHC010169492006

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : RSA 51/2006

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1:ASOMIYA CLUB

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TEZPUR, A CULTURAL AND SOCIAL ORGANISATION REGISTERED UNDER THE SOCIETIES REGN. ACT, HAVING ITS OFFICE AT TEZPUR P.S. AND P.O. TEZPUR, DIST-SONITPUR, ASSAM.

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VERSUS

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1:INDIAN NATIONAL CONGRESS

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NOW DEFUNCT, HAVING ITS ERSTWHILE OFFICE AT JANTAR MANTAR ROAD, NEW DELHI.

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2:2. INDIAN NATIONAL CONGRESSS

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HEADQUARTER AT NEW DELHI - SINCE DEFUNCT.

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3:3. THE SECRETARY OF TEZPUR UNIT

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OF INDIAN NATIONAL CONGRESSS

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TEZPUR TOWN - SINCE DEFUNCT.

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4:4. THE NATIONALIST CONGRESS PARTY

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LED BY SRI SARAD PAWAR HEADED BY LATE SARAT SINGHA

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STATE PRESIDENT DURING HUIS LIFE TIME NOTICE OF APPEAL TO BE SERVED ON SRI SARAD PAWAR

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PRESIDENT OF THE PARTY AND UNION MINISTER FOR AGRICULTURE NEW DELHI

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Advocate for the Petitioner : MR.P MAHANTA

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Advocate for the Respondent : MR.B ULLAH

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BEFORE

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HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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O R D E R

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21.11.2019

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Heard Mr. P. Mahanta, learned counsel for the appellant. None appears on call for the respondents No.2, 3 and 4.

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This appeal under Section 100 C.P.C. is directed against the first appellate judgment and decree dated 03.06.2005, passed by the learned Civil Judge, (Sr. Divn.), Sonitpur, Tezpur in Title Appeal No.3/1999, thereby dismissing the appeal filed by the appellant- plaintiff and affirming the judgment and decree dated 07.12.1998, passed by the learned Civil Judge (Jr. Divn.) No.1, Dist. Sonitpur in T.S. No.106/1984, thereby dismissing the suit by the appellant- plaintiff. The suit was for ejectment of the parties arrayed as defendants No.1 to 4 from the suit land described in Schedule-B of the plaint.

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The appellant herein is the plaintiff in T.S. No.106/1984. As per the plaint, the parties originally arrayed as defendants were - (1) Indian National Congress, (2) Indian National Congress (I), (3) Sree Rakhal Chandra Ghose, (4) Indian National Congress (S), (5) Sree Bijoy Chandra Sarma (deleted by order dated 13.11.1998), and (6) Sree Mohikanta Das. Although in the suit, it was claimed that the defendant No.1 was defunct, but it is seen that vide petition No.7536 dated 17.12.1986, the defendants No.1, 4, 5 and 6 had filed their joint written statement and that by petition No.7542 dated 17.12.2006, the defendants No.2 and 3 had filed their joint written statement.

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This appeal was admitted by order dated 30.01.2008 on the following substantial question of law:-

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“Whether in view of the plea of tenancy raised by the defendant in the written statement and having failed to prove the tenancy, they are entitle to the benefit of

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protection under Clause (b) of section 60 of Indian Easements Act, 1882?”

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As indicated herein before, Title Suit No. 106/1984 was dismissed by judgment and decree dated 07.12.1998. The aggrieved appellant herein had preferred an appeal, which was registered as Title Appeal No. 3/1999, but the said appeal was dismissed by the learned first appellate Court by its judgment and decree dated 03.06.2005. Accordingly, the present appeal was preferred. However, this appeal was filed 164 days beyond the period of limitation. Hence, this appeal was accompanied by an application under section 5 of the Limitation Act, 1963, which was registered as Misc. Case No. 1419/2006, containing a prayer for condoning the delay of 164 days.

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It is seen that notice was issued upon the parties arrayed as respondents in the said M.C. 1419/06 and accordingly, steps was taken by the appellant herein for service of notice on the respondents. After taking steps, the appellant herein had filed a Misc. Case, registered as Misc. Case No. 3365/2007, containing a prayer for accepting the service of notice on the respondents and take up the application for condonation of delay in preferring the appeal.

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On the said applications, this Court passed two separate orders dated 10.09.2007 in Misc. Case No.1419/06 and Misc. Case No.3365/07 to the following effect:-

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“Mr. T.C. Khetri, learned counsel for the applicant-appellant prays for striking out the name of the respondent No.1, Indian National Congress from the list of respondents. The prayer is allowed. The name of respondent No.1, the Indian National Congress is struck off from the list of respondents.

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The prayer made in this application will be considered along with the Misc. Case No. 1419/06 after service of notice on respondent No.4 is complete.”

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By giving effect the above hereinbefore quoted order, the name of respondent No.1 was struck off by the Office of the Registry of this Court. In the aforesaid circumstances, upon hearing the learned counsel for the appellant, the Court is inclined to

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frame an additional substantial question of law on which this appeal is proposed to be heard, which is formulated as under:-

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Whether upon striking out the name of respondent No.1 (i.e. defendant No.1 in the suit), the concurrent finding of both the learned Courts below by their respective judgment and decree can be interfered with in this appeal?

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The learned counsel for the appellant has made his elaborate submissions on the legality and sustainability of the judgment and decree passed by the learned trial Court as well as by the learned first appellate Court by referring to the pleadings, evidence and documentary exhibits on record. Apart from his submissions on the first substantial question of law as formulated by order dated 30.01.2008, the learned counsel for the appellant has submitted that the case projected in the plaint is that the Indian National Congress is a defunct party and, as such, in terms of the statement made in the plaint, a public notice was issued in the local newspaper, inviting anyone concerned with the suit property on behalf of the respondent/defendant No.1. It is submitted that the Indian National Congress does not have any subsisting interest in any portion of the suit property. The learned counsel for the appellant has also made his submissions regarding the past background of the splitting up of the erstwhile Congress Party into various warring factions. Accordingly, it is submitted that the Indian National Congress, previously known as Congress (I) could not retain possession over the suit property and the suit property was in possession of the remaining respondents No.2, 3 and 4 in this appeal. The learned counsel for the appellant has also submitted about the historical importance of the suit property and about the political and social stalwarts of the pre-independence period who were closely associated with the suit property. Accordingly, the learned counsel for the appellant has submitted that this appeal cannot be said to be not maintainable merely because the name of respondent No.1 herein (i.e. defendant No.1 in the suit) was struck off.

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The additional substantial question of law as formulated herein is taken up first.

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The Court is confronted with a situation where the suit by the appellant

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containing prayer for eviction of the Indian National Congress (defendant No.1) and other defendants has been dismissed. Therefore, any semblance of right that the said defendant No.1 had in respect of the suit property, had crystallized in their favour. The judgment and decree in T.S. 106/1984 was challenged by filing T.A. No. 3/1999, which was also dismissed by judgment and decree dated 03.06.2005. As a result, the status of defendant No.1 in respect of the suit property got further affirmed in appeal.

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As already mentioned herein before, notice of M.C. 1419/06 was issued on the respondents in this appeal and after issuance of notice, by filing M.C. 3365/2007, the appellant made a prayer for accepting the service of notice on the respondents and take up the application for condonation of delay in preferring the appeal. However, this Court by orders dated 10.09.2007 passed separately in M.C. 1419/06 and M.C. 3365/07, by referring to the prayer made by the learned counsel for the appellant, allowed the prayer and resultantly, the name of respondent No.1, i.e. the Indian National Congress was struck off from the list of respondents.

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Thus, by order dated 10.09.2007, the name of respondent No.1 was deleted and the appeal was thereafter admitted for hearing by order dated 30.01.2008 by formulating one substantial question of law.

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Thus, on the face of record, the name of respondent No.1 was struck off on the prayer made by the learned counsel for the appellant and with it, the decree of dismissal of suit in favour of the respondent No.1 had attained finality.

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In course of hearing, the learned counsel for the appellant has not been able to show that there is any finding on any of the issues framed by the learned Trial Court or in connection with the points of determination formulated by the first appellate Court that the rights and liabilities of the allegedly defunct Indian National Congress was devolved on the respondents No.2, 3 and 4. In the present case in hand, the appellant did not make any prayer for an order to strike out the name of respondent No.1 as envisaged under the provisions of Order XXII Rule 10 CPC for proceeding only against such of the remaining

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respondents on whom there has been any assignment, creation or devolution of any interest during the pendency of this appeal.

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In a hypothetical situation, say where there are two defendants in the suit, and one has died, it is open for the plaintiff to satisfy the Court that the surviving defendant is the legal representative of the deceased defendant who would represent the estate of the deceased and seek striking out the name of the deceased defendant by getting such a ground/ reason recorded in the order. However, in the present case in hand, the name of respondent No.1 was struck off on the prayer made by learned counsel for the appellant without any prayer for proceeding against any particular respondent on record upon whom there has been any assignment, creation or devolution of any interest of the Indian National Congress. Moreover, this is also not a case where any petition has been filed by the appellant to the effect that the appellant is abandoning their claim against Indian National Congress and thereby getting their name struck off.

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The submissions made by the learned counsel for the appellant to the effect that defendant No.1 had no interest in the suit property, appears to be highly attractive, but then the question is that why in the first place the appellant- plaintiff deem it fit to implead the respondent No.1 in the suit, notwithstanding the claim that respondent No.1 was defunct? There appears no answer to the said question. But, in the plaint, reference is made to handing over the entire Schedule-A property to the defendant No.1. Therefore, the only possible preponderance of probability is that the defendant No.1 had some interest and/or claim in respect of the suit property, for which it was required that a decree for eviction of decree is also passed against the defendant No.1, so that the interest of the appellant in respect of the suit property is protected.

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In order to test the submissions made by the learned counsel for the appellant, the Court has visited the website of the Election Commission of India. In the said website, it is seen that as per notification bearing No.56/2013/PPS-II dated 18^th January, 2013, the name of Indian National Congress appears at Table-1 thereof, which is for national parties, reflecting that the election symbol reserved for the said party is “hand” and the postal

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address of the headquarter of the said political party is shown as 24, Akbar Road, New Delhi110011. Under the provision of clause (4) of section 57 read with section 74 of the Evidence Act, 1982, judicial notice of the course of proceeding of Parliament is permissible to be taken. Hence, the Court can take judicial notice of the fact that the 17^th Lok Sabha was elected in May, 2019 and the Indian National Congress is the single largest opposition party in the 17^th Lok Sabha with 52 seats. Confronted with the said facts, the Court is unable to accept the submissions made by the learned counsel for the appellant that Indian National Congress, the respondent No.1 (now deleted) is defunct. Therefore, the only conclusion which can be drawn is that the appellant has got the name of respondent No.1 i.e. Indian National Congress struck off at its own risk and peril.

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It would relevant to mention herein that the appellant- plaintiff had filed the suit for decree of khas possession by evicting the defendants No.1 to 6. Out of the six original defendants, now only defendants No.4 and 5 remain as parties in this appeal as respondents No.2 and 3. The respondent No.4 herein was not the original defendant but, they were impleaded by order dated 11.06.2004 passed by the learned first appellate Court in T.A. 3/1999.

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Thus, there is no material available on record to show that respondentdefendant No.1 would not suffer any prejudice that the suit is decreed without them on record, as such, this Court is inclined to decide the additional substantial question of law by holding that upon striking out the name of respondent No.1 (i.e. defendant No.1 in the suit), the concurrent finding of both the learned Courts below by their respective judgment and decree has attained finality in so far as the defendant No.1 is concerned, as such, both the judgment and decree cannot be interfered with in this appeal. In the absence of Indian National Congress, the prayer as made in the suit cannot be decreed even if the present appeal is allowed. Resultantly, as the name of the defendant No.1 had been struck off in this appeal, the appellant is not found to be entitled to the reliefs as prayed for in the plaint.

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The second substantial question of law is taken up now. In this regard, the

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Court is of the considered opinion that in view of the discussions on the additional substantial question of law as formulated herein, the substantial question of law as formulated by order dated 30.01.2008 has been rendered redundant. In the absence of the respondent-defendant No.1, the said substantial question of law cannot be answered in the absence of proper and necessary party. In view of the discussions above, in the appeal in the present form, this appellate Court would not be able to pass a decree in terms of the prayer made in the plaint.

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Accordingly, the present appeal fails and resultantly, this appeal stands dismissed. However, there shall be no cost of this appeal.

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Let the LCR be returned back.

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JUDGE

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Comparing Assistant

Asomiya Club v. Indian National Congress

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Asomiya Club v. Indian National Congress

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