IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 WP(C).No. 16489 of 2007(K) -------------------------------------- PETITIONER(S): ---------------------- 1. DR.A.N.THOMAS, AGED 50, S/O.T.NAINAN, KRIPALAYAM, JOHN HILL ROAD, KANNUR-2. 2. DR.T.K.CHANDRASEKHARAN, S/O.MADHAVAN, AGED 54, NEAR MANDAPAM, PUTHIYATHERU, KANNUR. BY ADV. MR.V.RAJENDRAN (PERUMBAVOOR) MR.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): ------------------------- 1. DR.M.AHAMMED,AGED 50 YEARS, S/O.M.MUHAMMED KUNHI,OCCUPATION MEDICAL PRACTITIONER,RESIDENT OF RAIHAN HOUSE,MOOPPANAPARA MANNA, P.O.VALAPATTANAM,VALAPATTANAM AMSOM AND DESOM OF KANNUR TALUK & DISTRICT. 2. THE INDIAN MEDICAL ASSOCIATION, KANNUR BRANCH HAVING ITS OFFICE NEAR CHINMAYA BALABHAVAN KANNUR MUNICIPALITY, TALUK AND DISTRICT REP.BY ITS SECRETARY. 3. DR.SURESH BABU, SECRETARY, INDIAN MEDICAL ASSOCIATION, KANNUR BRANCH, BODYSCAN, OPP.A.K.G.HOSPITAL, TALAP KANNUR IN KANNUR MUNICIPALITY TALUK AND DISTRICT. ADV. MR.R.BINDU SASTHAMANGALAM FOR R1 MR.RAJESH NAMBIAR FOR R2 MR.P.U.SHAILAJAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 16489/2007-K APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RELEVANT PORTION OF NEWS PAPER BY NAME SUDHINAM DATED 13/04/2007. EXT.P2: COPY OF THE PLAINT IN O.S.163/07 DATED 09/04/07 OF MUNSIFF'S COURT, KANNUR. EXT.P3: COPY OF THE PETITION IN I.A.1358/07 IN O.S.163/07 OF MUNSIFF'S COURT KANNUR DATED 09/04/07. EXT.P4: COPY OF THE JUDGMENT IN W.P.(C). NO. 14023/07 DATED 08/05/07 OF THIS HONOURABLE COURT. EXT.P5: COPY OF THE ORDER IN I.A.1358/07 IN O.S.163/07 OF MUNSIFF'S COURT, KANNUR DATD 13/04/07. EXT.P6: COPY OF THE APPEAL MEMORANDUM IN CMA 70/07 DATED 19/04/07 FILED BEFORE ADDL. DISRTICT COURT (ADHOC-II) THALASSERY. EXT.P7: COPY OF THE PETITION BEARING NO. I.A.940/07 DATED 19/04/07 FILD IN EXHIBIT P6 APPEAL. EXT.P8: COPY OF THE PETITION BEARING NO.941/07 DATED 19/04/07 FILED IN EXHIBIT P6 APPEAL. EXT.P9: COPY OF THE I.A.1497/07 FILED IN I.A.1358/07 IN O.S. NO.163/07 OF MUNSIFF'S COURT, KANNUR DATED 23/04/07. EXT.P10: COPY OF THE I.A.1499/07 FILED IN I.A.1358/07 IN O.S.163/07 OF MUNSIFF'S COURT, KANNUR DATED 23/04/07. EXT.P11: COPY OF THE I.A.1500/07 IN O.S.163/07 OF MUNSIFF'S COURT KANNUR DATED 23/05/2007. EXT.P12: COPY OF THE I.A.1498/07 IN I.A.1358/07 IN O.S.163/07 OF MUNSIFF'S COURT, KANNUR DATED 23/05/07. EXT.P13: COPY OF THE JUDGMENT IN O.S.439/04 OF MUNSIFF'S COURT KANNUR DATED 25/08/2005. EXT.P14: COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DATED NIL SHOWING THE LIST OF OFFICE BEARERS OF THE 2ND RESPONDENT. EXT.P15: COPY OF THE NOTICE ISSED BY 3RD RESPONDENT DATED 08/06/07. EXT.P16: COPY OF THE COMMISSION REPORT FILED BY THE COMMISSIONER IN I.A.1359/07 IN O.S.163/07 DATED 04/06/07. W.P.(C). NO. 16489/2007-K EXT.P17: COPY OF THE JUDGMENT IN O.S. NOS.272/04, 401/04, 415/04, 498/04 AND 499/04 OF PRINCIPAL MUNSIFF'S COURT, KANNUR. EXT.P18: COPY OF THE PAGE NUMBERS 35, 36, AND 37 ALONG WITH COVER PAGE OF THE SOUVENIR 2003-04 OF IMA KANNUR BRANCH. EXT.P19: COPY OF THE COVER PAGE AND 1ST PAGE OF IMA NEWS LETTER OCTOBER 2006 PART PUBLISHED BY KERALA STAT BRACH OF IMA. EXT.P20: COPY OF THE ORDER DATED 11/04/08 IN I.A.1352/08 IN O.S.163/07 OF THE MUNSIFF'S COURT, KANNUR. EXT.P21: COPY OF THE MEMO FILED BY THE RETURNING OFFICER BEFORE THE MUNSIFF'S COURT, KANNUR ON 17/07/2008. EXT.P22: COPY OF THE PETITION FILED BY PETITIONERS BEFORE THE LOWER COURT AS I.A.2728/08 IN O.S.163/07 ON 27/07/08. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE MEMO FILED BY THE 1ST RESPONDENT DATED 01/01/2009 IN O.S.163/07 BFORE THE PRINCIPAL MUNSIFF'S CORT, KANNUR. EXT.R1(b): COPY OF THE COUNTER TO I.A.2728/08 IN I.A.2728/08 IN O.S.163/07 BEFORE THE PRINCIPAL MUNSIFF'S COURT, KANNUR. EXT.R2(a): COPY OF THE DECISION IN THE MINUTES BOOK OF THE GENERAL BODY MEETING CONVENED ON 16/04/2008. (I.A.1345 OF 2009) EXT.R2(A): COPY OF THE ORDER NO.IMA/KSB/SS/56/2005-06 DATED 05/09/05. EXT.R2(B): COPY OF THE ORDER NO.IMA/KSB/SS/AO 69/2004-05 DATED 15/11/2004. EXT.R2(C): COPY OF THE EXTRACT OF CLAUSE 17 OF THE BYE LAWS OF THE INDIAN MEDICAL ASSOCIATION, KANNUR. EXT.R2(D): COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT. EXT.R2(E): COPY OF THE POSTAL RECORD EVIDENCING SERVICE OF NOTICE UNDER CERTIFICATE OF POSTING. //TRUE COPY// P.S. TO JUDGE Rs/ M.N. KRISHNAN, J ----------------------- W.P(C)No. 16489 OF 2007 --------------------------------- Dated this the 25th day of February, 2009 JUDGMENT This writ petition is to call for the records leading to Exhibit P5 and quash the same by issuing a writ of certiorari and to declare that all proceedings taken by respondents 2 and 3 on the basis of Exhibit P5 are void and not sustainable etc. By an order dated 23.3.2008, I permitted the writ petitioners to move an application to appoint an Advocate Commissioner making it clear that whether under the facts and circumstances prevailing a Commissioner can be appointed is a matter that has to be considered by the court below. Accordingly an application was filed as I.A. 1352/2008 in O.S. 163/2007. 2. After hearing the contentions of the parties the learned Munsiff passed an order whereby one Sri. Jameel Ahammed, Advocate was appointed as the returning officer to conduct election of the office bearers of IMA Kannur Branch. There were other directions as well. Challenging this order the Indian Medical Association filed a writ petition before this court as W.P.(C) 21360/2008 and that has been dismissed as not pressed. So in effect there is an order passed by the learned Munsiff to conduct W.P(C)No. 16489/2007 -2- election through a Commission. Thereafter it is submitted that the Indian Medical Association did not co-operate properly and they also did not handover the voters list. Therefore the writ petitioners herein moved an application with a prayer to consider Ext. P22 petition within a time limit. That is pending consideration before the learned Munsiff. Meanwhile it is submitted by the learned counsel for the Medical Association that the plaintiff in the case is not eager enough to prosecute the case now as the result is already achieved and therefore he has sought permission of the court to withdraw the suit. Therein a contention is raised by the writ petitioner that a counter claim is pending and therefore withdrawal of the suit may not be possible. It is a matter that has to be considered on merits after hearing all concerned by the court. A party shall not be permitted to withdraw a case unless it comes within the parameters of the Order 23 of the Civil Procedure Code. But these are all matters which require factual consideration by the court below. So in other words now the court below may have to consider the following: 1. Whether there are circumstances which warrant granting W.P(C)No. 16489/2007 -3- of permission to withdraw the suit as contemplated under Order 23 of the Civil Procedure Code? 2. Whether the pendency of a counter claim filed by a co- defendant will prevent the court from refusing permission to withdraw? 3. Whether the court has to implement the order which it has passed as per the directions of this court by which the Commissioner is already appointed and what are steps and directions to be given in case of such an implementation to the parties? 4. It is also submitted that there is a petition to set aside the exparte order pending which also needs consideration, if it is not yet disposed of. So with these directions, this Writ Petition is closed. There shall be an endeavour made by the learned Munsiff to consider all these questions and dispose of it before the court closes for summer holidays. The W.P(C) is closed accordingly. M.N. KRISHNAN,JUDGE vkm