IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WP(C).No. 21757 of 2010(O) -------------------------- OS.163/2007 of MUNSIFF COURT,KANNUR .................... PETITIONER: --------------- DR.SURESH BABU, SECRETARY, INDIAN MEDICAL ASSOCIATION, KANNUR BRANCH, OPP.AKG HOSPITAL, TALAP, KANNUR. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENTS: --------------- 1. T.K.CHANDRASEKHARAN, S/O.MADHAVAN, AGED 56 YEARS, NEAR MANDAPAM, PUTHIYATHERU, KANNUR. 2. A.N.THOMAS, AGED 50 YEARS, S/O.T.NAINAN, JOHN MILL ROAD, KANNUR - 2. 3. THE INDIAN MEDICAL ASSOCIATION, KANNUR BRANCH, OFFICE NEAR CHINMAYA BALABHAVAN, KANNUR MUNICIPALITY, KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.21757 of 2010 --------------------------------------- Dated this 13th day of July, 2010 JUDGMENT Defendant No.2 in O.S.No.163 of 2002 of the court of learned Munsiff, Kannur challenges Ext.P7, order allowing amendment of plaint (Ext.P1 is the copy of plaint). That suit was originally filed by one Dr. M Ahamed for a declaration that action of petitioner/defendant No.2 who was Secretary of Kannur Branch of Indian Medical Association (for short, “the IMA”) in declaring election of that branch is ultra vires its bye law and for a direction to the petitioner to declare and conduct election for 2007-08. Defendants in the suit remained ex parte and thereon learned Munsiff directed petitioner to conduct election as prayed for. While so, respondent Nos.1 and 2 got impleaded in the plaint as additional defendantsNos.3 and 4. Respondent Nos.1 and 2 challenged the election conducted by petitioner in W.P.C.No.16489 of 2007. By an interim order an Advocate Commissioner was appointed as the returning officer to conduct the election. While so, respondent Nos.1 and 2 sought for and obtained their transposition as plaintiffs claiming that original plaintiff has abandoned the suit. Petitioner challenged that order in W.P.C.No.18587 of 2009. He also filed W.P.C.No.18593 of W.P.C.No.21757 of 2010 : 2 : 2009 challenging the order of learned Munsiff directing the Advocate Commissioner to publish voters list. This court disposed of the said writ petitions. That order was challenged by petitioner before the apex court in Special Leave petition No.28665 and 28666 of 2009. It was urged before the Supreme Court that since prayer in the suit was for direction to conduct election for 2007- 08, that period is already over and the relief prayed for became redundant. The Supreme Court while refusing to interfere with the order of this court above stated, allowed petitioner to raise redundancy of the suit in the trial court so that trial court could pass appropriate orders. It is while so that respondent Nos.1 and 2 filed Ext.P5, application – I.A.No. 1008 of 2010 for amendment of plaint. Amendment was intended at deleting relief (b) which was for a direction to the petitioner/defendant No.2 to declare and conduct election for 2007-08 as per the bye law and to incorporate the relief of direction to defendant No.1/IMA to conduct election of IMA, kannur branch hereafter as per the bye law of defendant No.1 without fail. That application notwithstanding objection raised by petitioner was allowed by the leanred Munsiff vide Ext.P7, order which is under challenge in this writ petition. Learned counsel for petitioner contends that by allowing amendment vide Ext.P7, order petitioner is deprived W.P.C.No.21757 of 2010 : 3 : of the opportunity to challenge redundancy of the suit which the Supreme court had permitted him to urge in the trial court. According to the learned counsel nature and character of the suit is also changed by the proposed amendment. 2. It is true that the Supreme Court while disposing of the special leave petition allowed plea of redundancy of the suit to be raised in the trial court. But, that did not mean that the Supreme Court had found the suit to be redundant or foreclosed any other action in the suit at the instance of respondent Nos.1 and 2. It is only that the petitioner was given an opportunity to raise that plea in the trial court. That did not prevent the court below from allowing amendment of plaint if it is otherwise found necessary. I must also bear in mind that in the plaint, relief sought for was a direction to the petitioner/defendant No.2 to declare and conduct fresh election for the year, 2007-08. That prayer has become redundant. But, that did not mean that respondent Nos.1 and 2 who are transposed as plaintiffs could not pursue the suit seeking other appropriate reliefs by way of amendment. So far as it did not change the character and nature of the suit and so far as petitioner or defendant No.1 are not prejudiced. Requesting to delete a redundant relief respondent Nos.1 and 2 requested for incorporating a relief that defendant W.P.C.No.21757 of 2010 : 4 : No.1 shall conduct the election in future in accordance with its bye law. The Supreme Court has referred to amendment of plaint to incorporate pre and post suit causes of action in Alkapuri Coop. Housing Society Ltd Vs. Jayantibhai Naginbhai (2009(3) SCC 467) and held in paragraph 18 that an application for amendment of plaint seeking to introduce a cause of action which has arisen during the pendancy of the suit has to be seen differently from a cause of action which had arisen prior to the date of suit. In the present case relief sought to eb included by amendment is for a direction to conduct the election in future as per the byelaw. I am not persuaded to think that by incorporation of the said relief nature and character of the suit is changed. I am also not persuaded to think that the relief sought for by amendment in any way prejudiced petitioner or defendant No.1. Learned Munsiff has exercised the discretion in favour of allowing amendment so that, the parties are not driven a separate suit. I find no reason to interfere with the order under challenge. Writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-