IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21757 of 2010(O)
1. DR.SURESH BABU, SECRETARY,
... Petitioner
Vs
1. T.K.CHANDRASEKHARAN, S/O.MADHAVAN,
... Respondent
2. A.N.THOMAS, AGED 50 YEARS,
3. THE INDIAN MEDICAL ASSOCIATION,
For Petitioner :SRI.P.S.SREEDHARAN PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/07/2010
O R D E R
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.
3. 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/-