IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 WP(C).No. 18587 of 2009(O) -------------------------- AGAINST THE ORDER DATED 10/06/2009 IN IA 1005/2009 IN OS.163/2007 of PRL.M.C.,KANNUR .................... PETITIONER(S)/4TH RESPONDENT: ----------------------------- DR. SURESH BABU, S/O. LATE NANU, BODY SCAN, OPP. A.K.G.HOSPITAL, TALAP, KANNUR. BY ADV. SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA SRI.ANEESH JOSEPH RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 TO 3: ------------------------------------------------ 1. DR. T.K.CHANDRASEKHARAN, S/O. MADHAVAN, CHIRAKKAL AMSOM AND DESOM, KANNUR. 2. DR. A.N.THOMAS, S/O. NINAN, KRIPALAYAM, JOHN MILL ROAD, KANNUR-2. 3. DR. M.AHAMED, S/O. M.MUHAMMED KUNHI, RAIHAN HOUSE, MOOPPANPARA, MANNA P.O., VALAPATTANAM, KANNUR DISTRICT. 4. THE INDIAN MEDICAL ASSOCIATION, KANNUR BRANCH, NEAR CHINMAYA BALABHAVAN, KANNUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY. ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE FOR R4 SRI.V.RAJENDRAN (PERUMBAVOOR) FOR R1 & 2 SRI.P.U.SHAILAJAN FOR R4 SRI.R.BINDU (SASTHAMANGALAM) FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2009 ALONGWITH WPC NO.18593 OF 2009, THE COURT ON 18/09/2009 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.163 OF 2007 OF THE MUNSIFF COURT, KANNUR DATED APRIL, 2007. EXT.P2: COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM IN O.S.NO.163 OF 2007 OF THE MUNSIFF COURT, KANNUR DATED 8.6.2007. EXT.P3: COPY OF THE ORDER IN I.A.NO.1358 OF 2007 IN O.S.NO.163 OF 2007 OF THE MUNSIFF COURT, KANNUR DATED 13.4.2007. EXT.P4: COPY OF THE ORDER IN I.A.NO.3052 OF 2008 IN WPC.NO.16488 OF 2007 DATED 26.3.2008. EXT.P5: COPY OF THE JUDGMENT IN WPC.16489 OF 2007 DATED 25.2.2009. EXT.P6: COPY OF THE AFFIDAVIT FILED IN O.S.NO.163 OF 2007 OF THE MUNSIFF COURT, KANNUR DATED NIL. EXT.P7: COPY OF THE OBJECTION FILED IN I.A.NO.1005 OF 2009 IN O.S.NO.163 OF 2007 OF THE MUNSIFF COURT, KANNUR DATED MARCH, 2009. EXT.P8: COPY OF THE ORDER IN I.A.NO.1005 OF 2009 IN O.S.NO.163 OF 2007 OF THE MUNSIFF COURT, KANNUR DATED 10.6.2009. EXT.P9: COPY OF THE AWARD IN ARBITRATION NO.1 OF 2005 DATED 15.9.2007. EXT.P10: COPY OF THE ELECTION NOTIFICATION DATED 25.6.2009. /TRUE COPY/ P.A TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NOS.18587 & 18593 OF 2009 () ----------------------------------- Dated this the 18th day of September, 2009 J U D G M E N T Both these writ petitions are filed by the 2nd defendant in O.S.No.163 of 2007 on the file of the Principal Munsiff Court, Kannur. The 2nd defendant was the erstwhile Secretary of the Kannur Branch of the Indian Medical Association. The common respondents 1 to 3 in both the writ petitions are defendants 3 and 4 and plaintiff respectively. The 4th respondent is the parent body of the 1st defendant, who is not a party to the suit. The 1st and 2nd respondents got themselves impleaded in the suit as additional 3rd and 4th defendants. For the sake of convenience, the parties are hereinafter referred to as the plaintiff and defendants as ranked in the suit except in the case of the 4th respondent, who is not a party to the suit, and, hence, referred hereinafter as the 4th respondent as such. 2. The above suit O.S.No.163 of 2007 was laid before WPC.NOS.18587 & 18593/09 2 the court below alleging that election to the Kannur Branch of the Indian Medical Association, manned by the 2nd defendant as Secretary, was overdue for the last few years, and so much so, the 2nd defendant should be directed to declare the election for the Association in the year 2007-08. With the 1st and 2nd defendants in the suit remaining absent, on an interlocutory application moved by the plaintiff, the court below passed an order directing the 2nd defendant to conduct the election. At that stage, two members of the Association moved an application to get themselves impleaded as additional 3rd and 4th defendants contending that the suit has been filed by the plaintiff in collusion with the 2nd defendant. Their impleadment being allowed, as additional 3rd and 4th defendants, they filed a joint written statement in which the status of the 2nd defendant as Secretary of the Association was impeached contending that an Adhoc Committee formed is manning the affairs of the local branch. Those defendants also raised a counter claim to declare all acts done by the 2nd defendant as Secretary of the Association after 10.9.2005 as void. The election of the office bearers of the Association ordered on the application moved by the plaintiff and conducted by the 2nd defendant was impeached as having been WPC.NOS.18587 & 18593/09 3 conducted without complying with the provisions of the bye-laws of the Association. The 3rd and 4th defendants had moved a writ petition as W.P.(C).No.16489 of 2007 before this Court impeaching the correctness and propriety of the election conducted to the Association, and, pursuant thereto, by an interim order in that writ petition, the court below appointed an Advocate Commissioner as a returning officer to conduct the election, after arriving at a conclusion that the previous election held was not properly conducted. During the pendency of the above writ petition, before the election could be held under the auspices of the Advocate Commissioner, which in fact still remains to be completed, some events transpired, and that eventually led to passing of some orders by the court below in the suit, which are at present challenged in these two writ petitions. After an Advocate Commissioner was appointed as the returning officer to conduct the election, the plaintiff reported that he is not eager to prosecute the case and not pressing the suit. Withdrawal of the suit when the writ petition was pending, as aforesaid, being objected to by the 2nd and 3rd defendants this Court disposed of the writ petition issuing some directions vide Ext.P5 judgment. The court below was directed to WPC.NOS.18587 & 18593/09 4 examine whether the permission to withdraw the suit is allowable especially when a counter claim had been raised by the additional 3rd and 4th defendants in the suit and also in view of the orders passed by the court appointing an Advocate Commissioner as returning officer to conduct the election. After disposing of the writ petition as above, additional 4th defendant moved an application to transpose him as the plaintiff in the suit, who by seeking withdrawal was stated as abandoning the suit. Transposition so sought by the additional 4th defendant was objected to by the plaintiff and also by the 1st and 2nd defendants. The learned Munsiff, after hearing both sides, allowed the application moved by the 4th defendant for transposing him as the plaintiff in the suit to continue its prosecution vide Ext.P8 order. Propriety and correctness of Ext.P8 order is challenged by the 2nd defendant in the writ petition W.P.(C).No.18587 of 2009. 3. Though election to the Kannur branch of the 1st defendant Indian Medical Association was directed to be conducted by appointing an Advocate Commissioner as the returning officer, it is stated, in view of the noncooperation of the 4th respondent and nonsupply of the voters list, the WPC.NOS.18587 & 18593/09 5 election could not be conducted. The 4th respondent had also challenged the order of the court below to conduct the election to the local branch by filing a writ petition before this Court. That writ petition was, however, not pressed as the plaintiff had expressed his desire not to press the suit on the file of the court below. In the writ petition, the 4th respondent is stated to have produced a copy of the voters list showing the members of the local branch eligible to exercise franchise in the election. Producing a copy of that voters list, the 3rd and 4th defendants applied for issuing of directions/orders to the Advocate Commissioner to conduct the election of the local branch. The court below allowed that application directing the Advocate Commissioner to publish the said list, fixing a time limit for filing objections, if any, and, then, consider such objections, finalise the list and proceed with the conduct of the election. Ext.P11 is the copy of the order so passed by the court. Challenge in the writ petition W.P.(C).No.18593 of 2009 is against Ext.P11 order. 4. The orders impeached in the writ petitions, though different and distinct, the challenges raised to assail them are in common. Such challenges are mainly based on the WPC.NOS.18587 & 18593/09 6 abandonment/ withdrawal of the suit by the plaintiff. Order passed by the court below for transposition of the 4th defendant as plaintiff, permitting him to prosecute the suit is also based on the withdrawal of the suit by the original plaintiff. The learned counsel appearing for the 2nd defendant assailed the orders of the court below as patently erroneous and unsustainable under law and facts. Inviting my attention to Ext.P1 copy of the plaint and the reliefs claimed thereunder, the learned counsel submitted that the suit has become infructuous as a decree was sought only against the 2nd defendant, directing him to conduct the election for the year 2007-08, which now has become impracticable as the period is over and also since the 2nd defendant has long since ceased to be a Secretary of the local branch. No relief as claimed in the suit as against him is permissible under law, is the further submission of the counsel. Suit has become infructuous is the main thrust of attack canvassed by the learned counsel to contend that the orders passed by the court below allowing transposition of the 4th defendant as plaintiff, permitting him to prosecute the suit, is unsustainable under law. Another line of attack canvassed by the learned counsel is that there is no identity of interest as between the original WPC.NOS.18587 & 18593/09 7 plaintiff and the additional 4th defendant, who was permitted to be transposed as the plaintiff in the suit. The 4th defendant had filed a written statement jointly with the 3rd defendant raising a counter claim as against the 2nd defendant in the suit, but, not against the plaintiff. Contentions raised in the written statement are quite in conflict with the allegations set out in the plaint and he had no identity of interest with the plaintiff in the suit, and that being so, his transposition as plaintiff for the reason the original plaintiff has abandoned his suit, according to the counsel, is impermissible. Reliance is placed on Nagoor Gani alias Rajamani and others v. Gandhi Meenal and others (1988 (2) MLJ 171) to contend that there must be identity of interest between the plaintiff and the defendant, who wants to be transposed as a plaintiff in the suit. Another ground raised by the counsel to impeach the orders of the court below is based on the subsequent events that transpired after the institution of the suit. The parent body, 4th respondent, pursuant to the institution of the suit, had referred the disputes relating to the election of the Kannur branch of the Indian Medical Association, and an award had already been passed by the Arbitrator appointed, by which, a new branch had been constituted, and the 3rd and WPC.NOS.18587 & 18593/09 8 4th defendants no longer continue as members of the Kannur branch, in respect of which, the election to the office bearers is sought for, is the case of the learned counsel for the 2nd defendant. In view of that subsequent event, which is supported by Ext.P9 award (copy of which is produced in W.P.(C).18953 of 2009) passed by the arbitrator appointed by the 1st defendant Association, it is contended that the 4th defendant has no locus standi to prosecute the suit even if his transposition as plaintiff is found sustainable for one reason or another. The reliefs claimed in the suit having become infructuous and the 4th defendant on transposition as plaintiff is incompetent to prosecute the suit, according to the learned counsel, the orders impugned in the writ petitions are liable to be set aside. 5. The learned counsel for the plaintiff and 4th respondent supported the arguments canvassed by the learned counsel for the 2nd respondent that the orders challenged in the writ petitions warrant interference and setting aside exercising the visitorial jurisdiction vested with this Court. The learned counsel for the 4th respondent inviting my attention to the exhibit produced as Ext.R4 (a) WPC.NOS.18587 & 18593/09 9 along with its counter affidavit in W.P.(C).No.18593 of 2009 contended that since the 4th defendant is no longer a member of the Kannur branch, he is incompetent to prosecute the suit for having an election to that branch getting himself transposed as a plaintiff in the suit. 6. The learned counsel appearing for the 1st and 2nd respondents strenuously contended that the challenge raised that the suit has become infructuous cannot be accepted in view of the orders passed by the court appointing an Advocate Commissioner to conduct the election to the 1st defendant Association. Such orders had been passed pursuant to directions given by this Court in an earlier writ petition, is also canvassed by the learned counsel to contend that it is only proper, correct and necessary in the interest of justice that the said orders be implemented so as to reach its logical conclusion. Challenge raised that the 4th defendant has no identity of interest with the plaintiff to get himself transposed as the plaintiff for prosecution of the suit, once it was abandoned by the original plaintiff, is also refuted by the learned counsel contending that the identity of interest for the conduct of the election to the 1st defendant Association need WPC.NOS.18587 & 18593/09 10 be only as members of the Association and nothing more. As on the date of the suit, the 3rd ad 4th defendants were members of the Association were not in dispute, submits the learned counsel. So far as the subsequent event canvassed that an award had been passed by the Arbitrator appointed by the 4th respondent, by which the 3rd and 4th defendants are stated to have ceased to be the members of the 1st defendant Association, it is submitted by the counsel, the award is challenged in appropriate proceedings as envisaged by law, and since the award has not become final and enforceable as under Section 36 of the Arbitration and Conciliation Act, no value can be given to the award passed during the pendency of the suit in respect of a matter subject to the adjudication of the court in the suit. Award passed by the 4th respondent, it is submitted, cannot oust the jurisdiction of the court or nullify the orders passed by the court to conduct the election appointing an Advocate Commissioner as the returning officer, submits the counsel. Ext.P8 order challenged in W.P.(C). No.18587 of 2009 and Ext.P11 order impeached in W.P.(C). No.18593 of 2009, both of them deserve only to be upheld, and the writ petitions are only to be dismissed, submits the counsel. WPC.NOS.18587 & 18593/09 11 7. Since the facts are not in dispute, the primary question that emerges for consideration in examining the correctness of the orders impeached in both these writ petitions, needless to point out, rests on the permission accorded to the 4th defendant by the court below to transpose him as the plaintiff to prosecute the suit when the original plaintiff abandoned or withdrew the suit seeking its dismissal as not pressed. Order XXIII Rule 1 of the Code of Civil Procedure permits the court to deal with the withdrawal of suit or abandonment of part of a claim. So far as the withdrawal of the suit is concerned, no permission as such from the court may be necessary, but to institute a fresh suit on the same cause of auction after withdrawing the previous suit, such permission is a must from the court trying the earlier suit. Even where permission is not sought for to institute a fresh suit, but, only withdrawal and abandonment of the suit by the plaintiff, it is open to the court to permit any of the defendants who applies to be transposed as plaintiff to continue the prosecution of the suit, subject to its satisfaction that, such applicant/defendant has a substantial question to be decided as against any of the other defendants in the suit. WPC.NOS.18587 & 18593/09 12 Order XXIII Rule 1 of the Code of Civil Procedure deals with the power or authority of the court to permit a defendant, who applies to be transposed as a plaintiff on abandonment or withdrawal of the suit by the original plaintiff. Order 23 Rule 1-A of the Code of Civil Procedure reads thus: “[1-A. When transposition of defendants as plaintiffs may be permitted:- Where a suit is withdrawn or abandoned by a plaintiff under Rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.] 8. The conditions to be satisfied for such transposition is withdrawal or abandonment of the suit by the plaintiff and application by the defendant to be transposed as plaintiff under Order 1 Rule 10 of CPC, and satisfaction of the court that the applicant/defendant has a substantial question to be decided as against any of the other defendants in the suit. Though it has been contended that the nonpressing of the suit by the plaintiff would not constitute withdrawal or abandonment as covered by Order XXIII Rule 1 of the Code of Civil Procedure, I do not find any merit in the contention WPC.NOS.18587 & 18593/09 13 since nonpressing, in effect, is an abandonment of the suit claim. The first two ingredients under the rule being satisfied, that is, abandonment of the suit claim by the plaintiff and application by the 4th defendant to transpose himself as the plaintiff, the larger question to be considered is whether the 4th defendant has a substantial question to be decided as against the other defendants in the suit. In that context, whether he has any identity of interest with the original plaintiff in respect of the suit claim raised also assumes much significance. Ext.P2 in W.P.(C).No.18587 of 2009 is the joint written statement filed by the 3rd and 4th defendants in the suit. In their joint written statement, these defendants have raised a counter claim, which is seen directed against the 2nd defendant. A counter claim cannot be raised against the defendant in the suit alone had been advanced before me to challenge the merit of that claim and also that those defendants have no identity of interest with the original plaintiff in the suit. A counter claim had been raised against the 2nd defendant has to be examined in the backdrop that the 3rd and 4th defendants have advanced a specific case that it is a collusive suit as between the plaintiff and also the 2nd defendant to subvert the due election process to the office WPC.NOS.18587 & 18593/09 14 bearers of the 1st defendant Association. With the 1st and 2nd defendants remaining absent, the plaintiff had obtained an order for conducting of election by the 2nd defendant, and that election process was later found to be improper by the court below, and, subsequently, an Advocate Commissioner had been appointed as returning officer to conduct the election also cannot be lost sight of. The decision relied by the learned counsel deals with a case where the plaintiff continued very much in the suit after seeking for a compromise decree being passed in recognition of their rights; but, in the present case, the plaintiff wanted to abandon his suit after orders had been passed by the court for conduct of the election to the 1st defendant Association at the instance of the 3rd and 4th defendants. Suit has been filed as a collusive affair with the 2nd defendant and by abandonment of the suit the plaintiff wants to nullify the order of the court to conduct the election through an Advocate Commissioner, is the submission of the learned counsel for the 4th defendant. That conclusion is irresistible in the given facts of the case. The identity of interest which the defendant has to show for transposition as the plaintiff when the original plaintiff abandoned or withdrew the suit has to be determined with WPC.NOS.18587 & 18593/09 15 reference to the pleadings and also the facts and circumstances, and subsequent events involved in the suit and not solely depend upon the case advanced by the plaintiff in the plaint alone. More than the identity of interest, what is to be looked into under Order XXIII Rule 1-A of CPC is the question whether the defendant who seek the transposition has a substantial question to be determined as against the remaining defendants in the suit. Where that is shown to be established, the transposition of a defendant as plaintiff in the place of the original plaintiff, who has abandoned or withdrawn the suit, has to be allowed. The identity of interest which a defendant need show is only the identity of interest with the plaintiff for the relief claimed, which in the present case is the conduct of a proper election to the first defendant Association. It cannot be stated that the 4th defendant has no identity of interest with the plaintiff in the conduct of election to the 1st defendant Association, in respect of which, the 2nd defendant was the Secretary and who continued to be as such, despite his term being over, without conducting any fresh election. So, there is no merit in the challenge that the 4th defendant has no identity of interest with the original plaintiff and the relief sought for in the suit, the conduct of the WPC.NOS.18587 & 18593/09 16 election to the 1st defendant Association. 9. The election was sought for the year 2007-08, which was highlighted to contend that the suit has become infructuous deserve to be taken note of only for its rejection. Since the court is seized of the matters, the disputes covered by the lis, and it had passed orders appointing an Advocate Commissioner for conducting an election to the office bearers of the 1st defendant Association the authority or power of the court to conduct the election beyond the period stated in the relief claimed, and, thereby, mould the relief sought for taking note of the facts and circumstances involving the subsequent events cannot be doubted for a moment. I do not find any merit in the submission that the suit has become infructuous especially in the light of the directions given by this Court in the earlier writ petition W.P.(C).No.16489 of 2007 (Ext.P5), directing the court below to issue appropriate orders in the matter of the appointment of an Advocate Commissioner to conduct the election to the 1st defendant Association. 10. An arbitration award has been passed by which the 3rd and 4th defendants have ceased to be members of the WPC.NOS.18587 & 18593/09 17 1st defendant Association, as a separate and distinct unit has been carved out under the award, which has been canvassed as another ground to impeach the orders passed by the court below does not at all impress me. As rightly contended by the learned counsel for the 1st and 2nd defendants, it has not been shown that the award has become final and enforceable. Further more, the orders passed by the court over the controversies arising for adjudication in the suit cannot be nullified or made ineffective for the reason that during the pendency of the suit, arbitration proceedings over the dispute had culminated in passing of an award. In case, the 2nd defendant had any case that the disputes involved in the suit are amenable to arbitration, it should have been brought to the notice of the court to get appropriate orders at the proper time as envisaged under Section 8 of the Arbitration and Conciliation Act, 1996, but that was not done. The 4th respondent even now remains not a party to the suit. Even the plaint shows that the parent body and the branches are governed by separate bye-laws and all local branches of the 4th respondent