Pioneer Co-operative Market Ltd. v. Mustt. Mehrun Nessa
2010-05-11
I.A.ANSARI
body2010
DigiLaw.ai
JUDGMENT I.A. Ansari, J. 1. This is an application, made under Article 227 of the Constitution of India, seeking to get set aside and quashed the order, dated 19.8.2009, passed, in Title Suit No. 831/2006, whereby the learned Munsiff No. 2, Kamrup, has rejected the application of the present Petitioner, who is Defendant No. 1 in Title Suit No. 831/2006 aforementioned, seeking to file written statement. 2. Before coming to the merit of the present application, certain material facts, which are relevant for the purpose of disposal of this revision, need to be pointed out. 3. The suit aforementioned was filed by the Respondents herein seeking declaration of their rights, title and interest over the suit land and recovery of possession thereof. The Defendant No. 1 stood impleaded, in the suit, as 'Pioneer Co-operative Market Ltd. (Regd. No. G54/65/66, Athgaon, Guwahati-8, Assam, represented by its President/Secretary'. 4. There is no dispute that the Defendant No. 1 is a co-operative society registered under the Assam Co-operative Societies Act, 1949, and it can, ordinarily, be represented by its President or Secretary. Alleging that the affairs of the said Society were not being carried out properly and in accordance with law, a writ petition, under Article 226 of the Constitution of India, was filed, which gave rise to WP(C) No. 3835/2000, wherein an order was passed, on 1.8.2000, directing the Deputy Commissioner, Kamrup, to manage the affairs of the said society either by. himself or by an officer to be appointed by him. On the order, so passed, on 1.8.2000, the learned trial court, on a petition filed by the Plaintiffs, allowed, on 2.3.2002, to correct the address of the Defendant No. 1. The new address of the Defendant No. 1 accordingly came to be recorded as "Pioneer Co-operative Market Ltd., (Regd No. 54/65/66), Athgaon, Guwahati, Assam, represented by its President/Secretary, C/o. Deputy Commissioner, Kamrup, Guwahati." 5. There is nothing, in the records, to show that on correction of the address of the Defendant No. 1 as indicated hereinbefore, any notice was served anew on the Deputy Commissioner, Kamrup, Guwahati. 6. As none appeared on behalf of the Defendants, an order was passed, in the suit, on 19.4.2002, directing that hearing of the suit would proceed ex parte against all the Defendants.
6. As none appeared on behalf of the Defendants, an order was passed, in the suit, on 19.4.2002, directing that hearing of the suit would proceed ex parte against all the Defendants. Subsequent thereto, and to be precise, on 4.10.2002, the said writ petition was finally disposed of with certain directions and till the directions, so given, were to be carried out, the court directed the Deputy Commissioner, Kamrup, to manage the affairs of the said society in the same manner as had been directed earlier. 7. Upon disposal of the writ petition as aforesaid, a petition was filed, on 21.8.2003, in the suit, by Defendant Nos. 2, 4, 5, 6, 18, 19, 20 and 23, under order 1, Rule 10(2) read with Section 151 of the Code of Civil Procedure, praying for impleading the Deputy Commissioner, Kamrup, as Defendant No. 1 in view of the directions given by the High Court in its order, dated 4.10.2002, aforementioned in WP(C) No. 3835/2000. The petition, so filed, on 21.8.2003, came to be rejected by the learned trial court on 1.10.2003. The reason assigned, in this regard, by the learned trial court reads, "In my considered opinion the society has been made party to the suit which is functioning under the DC, the DC, Kamrup, need not be made a party to represent the society." 8. Thereafter, Dipak Choudhury, who was the officer, appointed by the Deputy Commissioner, Kamrup, to look after the affairs of the said Society, too, filed a petition, on 12.8.2004, in the said suit, seeking to get impleaded, in the suit, pursuant to the orders of the High Court passed in WP(C) No. 3835/2000. No effective order was, however, ever passed on the said petition. 9. In course of time, the suit was dismissed for default on 11.10.2004 and it came to be restored only on 15.11.2007 by an order, passed, in this regard, in the suit, whereupon another petition was filed by the officer, appointed by the Deputy Commissioner, Kamrup, to look after the affairs of the said Society, praying for vacating the order, whereby it had been directed that the hearing of the suit would proceed ex parte as against the Defendant No. 1, and allowing the Defendant No. 1 to file the written statement. By order, dated 19.8.2009, this petition has been rejected.
By order, dated 19.8.2009, this petition has been rejected. It is the order, dated 19.8.2009, aforementioned, which stands impugned in the present revision made under Article 227. 10.I have heard Mr. P.S. Deka, learned Government counsel, for the Defendant-Petitioner, and Mr. S.M. Ali, learned Counsel, for the Plaintiff-Respondents. 11. While considering the present revision, it needs to be noted that it is order 1 of the Code of Civil Procedure, which deals with parties, in general, as well as necessary parties. In a civil suit or proceeding, the court considers the question of necessary party keeping in view me litigation before it and the litigants appearing before it or available on the record. 12. In Deputy Commissioner, Hardoi, In-charge, Court of Wards, Bhavawan Estate v. Rama Krishna Narain, AIR 1953 SC 521 , two tests have been laid down for determining the question as to who can be regarded as necessary party in a civil suit, the tests being (i) that there must be a right to some relief against such a party in respect of the matter involved in the suit and (ii) that it should not be possible to pass an effective decree in the absence of such a party. Thus, a necessary party is one against whom a right to relief, in respect of the subject-matter involved in the suit, exists and in whose absence, no effective decree can be passed. 13. Though, primarily, it is for the Plaintiff to decide as to who shall be impleaded as a party in his suit, the fact remains that Sub-rule (2) of Rule 10 of order 1 clearly empowers the court to either strike out or add parties. When a court finds that a person has been improperly impleaded, whether as a Plaintiff or Defendant, the court can direct the name of such a party to be struck out. At the same time, Sub-rule (2) of Rule 10 of order 1 empowers the court to add a person if it finds that the person is one, who ought to have been joined, whether as a Plaintiff or as a Defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of empowering the court to add parties.
Avoidance of multiplicity of proceedings is also one of the objects of empowering the court to add parties. Thus, a proper party is one, whose presence is necessary for the purpose of effectively and completely adjudicating upon and settling all the questions involved in the suit. 14. In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors, (1992) 2 SCC 524 , the Supreme Court has made it clear that though the Plaintiff is a 'dominus litis', he is not bound to sue every possible adverse claimant in the suit and he may choose to implead those persons, as Defendants, against whom he wishes to proceed; but the court may, at any stage of the suit, direct addition of a party. The Supreme Court has clarified, in Ramesh Hirachand Kundanmal (supra), that the court may, at any stage of the suit, direct addition of parties and that a party can be shown as Defendant even though the Plaintiff does not think that he has any cause of action against him inasmuch as Rule 10 specifically provides that it is open to the court to add, in the suit, a necessary party or a person, whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. 15. Reiterating that a necessary party is one without whose presence no relief can be granted and a proper party is one, whose presence is necessary for completely and effectually adjudicate upon the dispute, the Supreme Court, in Aliji Momonji and Co v. Lalji Mavji, AIR 1997 SC 64 , observed and held as under: 5. The controversy is no longer res integra. It is settled law by catena of decisions of this Court that where the presence of the Respondent is necessary for complete and effectual adjudication of the dispute, though no relief is sought he is a proper party. Necessary party is one without whose presence no effective and complete adjudication of the dispute could be made and no relief granted. The question is whether the landlord is a necessary or proper party to the suit for perpetual injunction against the Municipal Corporation for demolition of demised building? The landlord has a direct and substantial interest in the demised building before the demolition of which notice under Section 351 was issued.
The question is whether the landlord is a necessary or proper party to the suit for perpetual injunction against the Municipal Corporation for demolition of demised building? The landlord has a direct and substantial interest in the demised building before the demolition of which notice under Section 351 was issued. In the event of its demolition, his rights would materially be affected. His right, title and interest in the property demised to the tenant or licensee would be in jeopardy. It may be that the construction which is sought to be demolished by the Municipal Corporation was made with or without the consent of the landlord or the lessor. But the demolition would undoubtedly materially affect the right, title and interest in the property of the landlord. Under those circumstances, the landlord necessarily is a proper party, though the relief is sought for against the Municipal Corporation for perpetual injunction restraining the Municipal Corporation from demolition of the building. Under those circumstances, the question of the commercial interest would not arise. In Ramesh Hirachand Kundanmal case this Court had pointed out in para 18 of the judgment that the notice did not relate to the structure but to two chattels. Original lessee from the landlord had no direct interest in that property. Under these circumstances, it was held that the second Respondent has no direct interest in the subject-matter of the litigation and the addition thereof would result in causing serious prejudice to the Appellant and the substitution or the addition of a new cause of action would only widen the issue which was required to be adjudicated and settled. It is true, as pointed out by Shri Nariman that in para 14, this Court in that case had pointed out that what makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance.
It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is not necessary for the purpose of this case to go into the wider question whether witness can be a proper and necessary party when the witness has a commercial interest. This Court in New Redbank Tea Co. (P.) Ltd. v. Kumkum Mittal has pointed out that Respondent 11 who filed a suit for specific performance in the High Court was sought to come on record in the suit in which he had no direct interest in the pending matter. Under those circumstances, this Court had held that Respondent 11 was neither necessary nor proper party in the leasehold interest involved in the suit. In Union of India v. Distt. Judge the Union of India who ultimately had to bear the burden of payment of the compensation was held to be a necessary party under order 1 Rule 10, Code of Civil Procedure for determination of the compensation in respect of the acquired land. In Bihar SEB v. State of Bihar4 the same question was also reiterated and it was held that the Electricity Board was a person interested and also a necessary party. In Anil Kumar Singh v. Shivnath Mishra similar question was answered holding that the Respondent was a necessary party. 16. In the case of Savita Devi v. District Judge, Gorakhpur and Ors, AIR 1999 SC 976 , the Supreme Court has observed, while referring to its previous decisions, that order 1, Rule 10 Code of Civil Procedure enables the court to add any person as a party at any stage of the proceedings, if the person whose presence before the court is necessary in order to enable the court to effectively and completely adjudicate upon and settle all question involved in the suit.
Avoidance of multiplicity of proceedings is also one of the objects of the said provisions in the Code. 17.I may pause here to mention that in Razia Begum v. Anwar Begum, AIR 1958 SC 886 , the Supreme Court had pointed out that a person may be added as a party to a suit provided that he has a direct interest in the subject-matter of litigation irrespective of the fact as to whether the litigation relates to movable or immovable property. What needs to be, now, noted is that in Razia Begum (supra), the suit was instituted by the Appellant, Razia Begum, against the Respondent No. 3, for a declaration that she was his lawfully married wife. By filing his written statement, the Respondent No. 3 admitted, in Razia Begum (supra), the claim of the Plaintiff-Appellant to be true. On the date, the written statement was so filed by the Respondent No. 3 admitting that he was husband of the Appellant, an application was made, under order 1, Rule10(2), by Respondent Nos. 1 and 2, seeking to be impleaded, in the suit, as Defendants on the grounds that they were respectively the wife and son of Respondent 3 and they were, therefore, interested in denying the Appellant's status as wife and the status of her children as the legitimate children of Respondent 3, that the suit was the result of a collusion between the Appellant and Respondent 3 and that the rights and interests of Respondents 1 and 2, in the estate of Respondent 3, would be adversely affected if the Appellant was declared to have been lawfully wedded to Respondent 3. The application was contested by both the Appellant and Respondent 3. The trial court allowed the application and the order was confirmed by the High Court in its revisional jurisdiction. The question, in the appeal, before the Supreme Court, was whether the courts below had exceeded their powers in directing the addition of Respondents 1 and 2 as party Defendants in the suit. 18. Sinha, J., speaking for the majority, observed, in Razia Begum (supra), that a declaratory judgment, in respect of a disputed status, would be binding not only upon parties actually before the court, but also upon persons claiming through them.
18. Sinha, J., speaking for the majority, observed, in Razia Begum (supra), that a declaratory judgment, in respect of a disputed status, would be binding not only upon parties actually before the court, but also upon persons claiming through them. The court laid down the law that, in a suit relating to property, in order that a person may be added as a party, he shall have a direct interest as distinguished from a commercial interest in the subject-matter of the litigation. However, in a suitable case, observed Sinha, J., in Razia Begum (supra), where the subject-matter of litigation is a declaration as regards status or legal character, the rule of present or direct interest may be relaxed if the court is of the opinion that by adding a particular party, it would be in a better position to effectually and completely adjudicate upon the controversy. In the cases covered by the statutory provisions of Sections 42 and 43 of the Specific Relief Act, the court, according to the decision, in Razia Begum (supra), is not bound to grant declaration prayed for on a mere admission of the claim by the Defendant if the court, apart from the admission, has reasons to insist upon a clear proof. The result of a declaratory decree, on the question of status, such as, the controversy in Razia Begum (supra), affects not only the parties actually before the court, but generations to come and in view of parties actually before the court, but generations to come and in view of that consideration, the rule of present interest, as evolved by case law relating to disputes about property, does not, laid down the Supreme Court, in Razia Begum (supra), apply with full force. Applying the propositions enunciated to the facts of the case, the court, in Razia Begum (supra), came to the conclusion that the courts below did not exceed their powers in directing the addition of Respondents 1 and 2 as parties Defendants in the suit nor could it be said that the exercise of the discretion was not sound. 19. Thus, in Razia Begum (supra), a distinction has been drawn between suits, relating to property, and those, wherein the subject-matter of litigation is a declaration as regards status or legal character.
19. Thus, in Razia Begum (supra), a distinction has been drawn between suits, relating to property, and those, wherein the subject-matter of litigation is a declaration as regards status or legal character. In the former category, the rule of present interest, as distinguished from the commercial interest, is required to be shown before a person may be added as a party. However, when a declaration, as regards status or legal character, may have a bearing on the status or legal character of another person, then, such a person, who may be so affected, would become a necessary party. It is, at this stage, necessary to bear in mind that though, by adding parties, necessary and proper, the court prevents multiplicity of actions, the fact remains that merely with the object of preventing multiplicity of actions, parties cannot be added. Referring, in this regard, to the case of Razia Begum (supra), the court, in Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors, (1992) 2 SCC 524 , has observed at para 13 and 14, as follows: 13. A clear distinction has been drawn between suits relating to property and those in which the subject-matter of litigation is a declaration as regards status or legal character. In the former category, the rule of present interest as distinguished from the commercial interest is required to be shown before a person may be added as a party. 14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance.
What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates joining as a Defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck and Sons Ltd. 2, wherein after quoting the observations of Wynn-Parry, J in Dollfus Mieget Compagnie S.A. v. Bank of England-3., that their true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject-matter of the action if those rights could be established, Devlin, J has stated: The test is 'May the order for which the Plaintiff is asking directly affect the intervener in the enjoyment of his legal rights'. 20. From the above observations, made in Ramesh Hirachand Kundanmal (supra), what becomes clear is that the main object of the rule, as regards addition of parties, is not to prevent multiplicity of actions, though it may, incidentally, have that effect. Thus, though addition of parties, necessary or proper, may have the desirable effect of preventing multiplicity of proceeding and this may be the desirable consequence, it cannot be regarded as the main objective of addition of parties. The person to be joined must be one, whose presence is necessary as a party.
Thus, though addition of parties, necessary or proper, may have the desirable effect of preventing multiplicity of proceeding and this may be the desirable consequence, it cannot be regarded as the main objective of addition of parties. The person to be joined must be one, whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason, which makes it necessary to make a person a party to an action is that he be bound by the result of the action and the question to be settled, therefore, must be a question, which cannot be effectually and completely settled unless he is a party. 21. I may point out that in Kasturi v. Iyyamperumal, (2005) 6 SCC 733 , the Supreme Court had the occasion to answer the question as to whether, in a suit for specific performance of contract for sale of a property, instituted by a purchaser against the vendor, a stranger or a third party to the contract, claiming to have an independent title and possession over the contracted property, is entitled to be added as a party-Defendant in the said suit. Holding in the negative, the Supreme Court, in Kasturi (supra), held that a stranger or a third party to the contract, in the action, are not entitled to be added as party-Defendants in the pending suit for specific performance of the contract for sale. 22. Thus, where the suit relates to property, the party, who seeks to be added as party, must have direct interest in the property. As against the suit relating to property, when the suit is as regards declaration of status or legal character, the persons, who would be bound by the outcome of the suit, are necessary to be added as parties inasmuch as the court would be in a better position to effectively and completely adjudicate upon the controversy in the presence of those persons, who would be bound by the out-come of the suit. Such a person would, if not necessary, be a proper party.
Such a person would, if not necessary, be a proper party. A declaratory judgment, in respect of a disputed status, will be binding not only upon the parties, who are actually before the court, but also upon persons claiming through them. 23. In the present case, the affairs of the Co-operative Society concerned were entrusted to the Deputy Commissioner, Kamrup, by the order of the High Court. The Deputy Commissioner, Kamrup, thus, became accountable and answerable for the affairs of the Society subsequent to the filing of the suit. Since an interest has been created in favour of the Deputy Commissioner, Kamrup, he has a right to have his say, when the management of the Society is the subject-matter of the present suit. 24. It has been contended, on behalf of the Plaintiff-Respondents, that the Petitioner No. 1, being a Society, was made a party to the suit in the form of Defendant No. 1 and it was not obligatory, on the part of the Plaintiff-Respondents, to add as party, in the suit, the Deputy Commissioner, Kamrup, or the officer, who may be appointed by the Deputy Commissioner, Kamrup, pursuant to the directions, passed in WP(C) No. 3835/2000, to look after the affairs of the said Society inasmuch as no relief has been claimed against the Deputy Commissioner, Kamrup, or the officer aforementioned. 25. The question is not as to whether the Deputy Commissioner or his appointed officer is or is not a necessary party to the suit. The question is as to whether the Deputy Commissioner or his appointed officer is a proper party. In this regard, it is extremely important to note that, ordinarily, it is the President or the Secretary of a Co-operative Society, who is entitled to institute a suit on behalf of his Society or defend a suit instituted against his Society. By order of the High Court, passed in WP(C) No. 3835/2000, the President and the Secretary of the said Society, who were, otherwise, competent to defend the Society, namely, Defendant No. 1, were disabled from defending the suit and they could not have, therefore, defended the Society. The only person, who can effectively represent and defend the suit, on behalf of the Society, is the Deputy Commissioner, Kamrup, or his appointed officer.
The only person, who can effectively represent and defend the suit, on behalf of the Society, is the Deputy Commissioner, Kamrup, or his appointed officer. When the Plaintiff came to know about the fact that the Deputy Commissioner, Kamrup, had been directed by the High Court, in WHO No. 3835/2000, to look after the affairs of the said society either himself or to appoint an officer to look after the affairs of the said Society, they, (i.e., the Plaintiffs) amended the description of the Defendant No. 1, in the suit, as pointed out above, but did not serve any notice on the Deputy Commissioner, Kamrup. 26. However, when it had been brought to the notice of the learned trial court that the persons, namely, President as well as Secretary, who were, otherwise, competent to defend the suit, had been disabled from representing the Society in the suit and the only person, who could have effectively represented the Society in the suit and defend the Society, was the Deputy Commissioner, Kamrup, or his appointed officer, it had become obligatory, on the part of the learned trial court, to bring, on record, the Deputy Commissioner, Kamrup, or his appointed officer so that the interest of the Defendant No. 1, which is a juristic person, could have been properly and effectively protected and the lis could have been effectually and completely decided. The learned trial court, however, failed to do so. Even when the officer, appointed in this regard, by the Deputy Commissioner, Kamrup, made an application seeking to get impleaded, no order was passed on the said petition and, subsequently, when a new officer, appointed by the Deputy Commissioner, Kamrup, in this regard, applied for being impleaded, the learned court below rejected his prayer to be impleaded in the suit. When the appointed officer himself had applied for being impleaded, there was no reason why he was denied to be brought on record. Undoubtedly, the Deputy Commissioner, Kamrup, or his appointed officer, is, at least, a proper party inasmuch as all the issues, raised in the suit, cannot be effectively and completely adjudicated upon and settled without the presence of the Deputy Commissioner, Kamrup, or his appointed officer, as the case may be, yet the learned trial court by the impugned order, dated 19.10.2002, declined to implead the appointed officer as a party to the suit. 27.
27. It is, now, the stage to note that Section 35 of the Assam Cooperative Societies Act, 1949, empowers the State Government to depute a Government servant to manage the affairs of a society. In the case at hand, the writ proceedings were instituted on the ground that the affairs of the said Society were not being carried out in accordance with law. It was in such circumstances that the court had directed the Deputy Commissioner, Kamrup, to manage the affairs of the said Society either by himself or by an officer to be appointed by him. The affairs of a cooperative society are not like management of partnership firm consisting of some partners. The co-operative societies are to be managed keeping in view the wider public interest. No wonder, therefore, that Section 35 empowers the State Government to depute a Government servant to manage the affairs of a society. Thus, there is an element of public interest involved in the affairs of every registered society. Article 226 provides public law remedy and it is pursuant to, and in public interest, that the High Court had invoked the public law remedy, as provided under Article 226, and appointed the Deputy Commissioner and his representative as indicated hereinbefore. In other words, the State had interest in the affairs of the said Society and it is this interest, which has been protected by the orders of the High Court. In such circumstances, the Deputy Commissioner was not entirely a stranger to the suit. This apart, under the orders of the High Court, as discussed above, the public interest was sought to be protected by the High Court by appointing the Deputy Commissioner or his representative as mentioned above. In such circumstances, the Deputy Commissioner was, if not necessary, at least, a proper party inasmuch as his presence would have had helped the court in effectively and completely deciding the lis. 28. At any rate, what is clear from the above discussion is that the Deputy Commissioner, Kamrup, was directed by the High Court to manage the affairs of the said Society either by himself or through his appointed officer. Though the learned trial court had corrected, as already pointed above, the description of Defendant No. 1, as person, who could have represented the said Society, no notice was ever issued to, or served upon, the Deputy Commissioner, Kamrup, or his appointed officer.
Though the learned trial court had corrected, as already pointed above, the description of Defendant No. 1, as person, who could have represented the said Society, no notice was ever issued to, or served upon, the Deputy Commissioner, Kamrup, or his appointed officer. In such circumstances, it was clear that the learned trial court had been proceeding with the suit without bringing on record a person, who could have properly, effectively and completely protected the interest of the society, in whose affairs an element of public interest was involved. This aspect of the matter has been lost sight of by the learned trial court. 29. In the face of the fact that it was the duty of the learned trial court to ensure that a juristic person, such as the Defendant No. 1, be effectively represented in the suit and when the learned trial court did not either implead the appointed officer as a party to the suit or did not make it clear to the said officer that he can, without being formally made a party in the suit, defend the society in the suit, there is, undoubtedly, refusal by the learned trial court to exercise the jurisdiction, which stands vested in it. Viewed from this angle, it becomes crystal clear that the impugned order cannot be sustained and must, therefore, be interfered with. 30. I may pause here to point out that the learned trial court has observed, in the impugned order, that the Defendant No. 1 has not filed written statement since its inception and cannot, therefore, be allowed to file any written statement. In this regard, it should be carefully noted that the suit was instituted on 23.3.2000, but the Plaintiffs changed the address of the Defendant No. 1 on 2.3.2002. Upon change of address, no notice, as already mentioned above, is shown to have been served on the Deputy Commissioner, Kamrup. This apart, the suit came to be dismissed for default on 11.10.2004 and it was restored on 15.11.2007. Thus, for three years, the suit remained lying dismissed due to default on the part of the Plaintiffs. In such circumstances, the Defendant cannot be solely blamed for delay in disposal of the suit.
This apart, the suit came to be dismissed for default on 11.10.2004 and it was restored on 15.11.2007. Thus, for three years, the suit remained lying dismissed due to default on the part of the Plaintiffs. In such circumstances, the Defendant cannot be solely blamed for delay in disposal of the suit. On the ground of delay, therefore, the Defendant No. 1 could not have been non-suited, when the person, who could have effectively protected the interest of the Defendant No. 1, was not available before the court. It needs to be, at the same time, borne in mind that the Deputy Commissioner, Kamrup, was not a party to the suit and, he could not have defended Defendant No. 1. The Deputy Commissioner, Kamrup, or his appointed officer came into picture in consequence of the directions issued in the said writ petition. It would not have, therefore, been an irregular exercise of jurisdiction if the learned trial court had, on its own, impleaded the Deputy Commissioner, Kamrup, or his appointed officer as one of the Defendants in the suit so that the interest of the Defendant No. 1, which is a juristic person or a public body, could have been taken care of. 31. In the result and for the reasons discussed above, the impugned order is hereby set aside. The learned trial court is hereby directed to add the officer, who may have been appointed by the Deputy Commissioner, Kamrup, to look after the affairs of the said Society, as a Defendant, in the suit, so as to enable him to represent the interest of the Defendant Society in the suit, by filing an appropriate written statement. 32. With the above observations and directions, this revision shall stand disposed of. 33. Send back the LCR.