Kerala High Court · 2009

S.S.SATHEESACHANDRAN, J.-------------------------------W.P.(C).NOS.18587 & 18593 OF 2009 ()-----------------------------------Dated this the 18th day of September, 2009J U D G M E N TBoth these writ petitions are filed by the 2nd defendant inO.S.No.163 of 2007 on the file of the Principal Munsiff Court,Kannur. The 2nd defendant was the erstwhile Secretary of theKannur Branch of the Indian Medical Association. Thecommon respondents 1 to 3 in both the writ petitions aredefendants 3 and 4 and plaintiff respectively. The4th respondent is the parent body of the 1st defendant, who isnot a party to the suit. The 1st and 2nd respondents gotthemselves impleaded in the suit as additional 3rd and4th defendants. For the sake of convenience, the parties arehereinafter referred to as the plaintiff and defendants asranked in the suit except in the case of the 4th respondent, whois not a party to the suit, and, hence, referred hereinafter asthe 4th respondent as such. 2. The above suit O.S.No.163 of 2007 was laid before WPC.NOS.18587 & 18593/092the court below alleging that election to the Kannur Branch ofthe Indian Medical Association, manned by the 2nd defendantas Secretary, was overdue for the last few years, and so muchso, the 2nd defendant should be directed to declare the electionfor the Association in the year 2007-08. With the 1st and2nd defendants in the suit remaining absent, on aninterlocutory application moved by the plaintiff, the courtbelow passed an order directing the 2nd defendant to conductthe election. At that stage, two members of the Associationmoved an application to get themselves impleaded asadditional 3rd and 4th defendants contending that the suit hasbeen filed by the plaintiff in collusion with the 2nd defendant.Their impleadment being allowed, as additional 3rd and4th defendants, they filed a joint written statement in whichthe status of the 2nd defendant as Secretary of the Associationwas impeached contending that an Adhoc Committee formedis manning the affairs of the local branch. Those defendantsalso raised a counter claim to declare all acts done by the2nd defendant as Secretary of the Association after 10.9.2005as void. The election of the office bearers of the Associationordered on the application moved by the plaintiff andconducted by the 2nd defendant was impeached as having been WPC.NOS.18587 & 18593/093conducted without complying with the provisions of thebye-laws of the Association. The 3rd and 4th defendants hadmoved a writ petition as W.P.(C).No.16489 of 2007 before thisCourt impeaching the correctness and propriety of theelection conducted to the Association, and, pursuant thereto,by an interim order in that writ petition, the court belowappointed an Advocate Commissioner as a returning officer toconduct the election, after arriving at a conclusion that theprevious election held was not properly conducted. Duringthe pendency of the above writ petition, before the electioncould be held under the auspices of the AdvocateCommissioner, which in fact still remains to be completed,some events transpired, and that eventually led to passing ofsome orders by the court below in the suit, which are atpresent challenged in these two writ petitions. After anAdvocate Commissioner was appointed as the returning officerto conduct the election, the plaintiff reported that he is noteager to prosecute the case and not pressing the suit.Withdrawal of the suit when the writ petition was pending, asaforesaid, being objected to by the 2nd and 3rd defendants thisCourt disposed of the writ petition issuing some directionsvide Ext.P5 judgment. The court below was directed to WPC.NOS.18587 & 18593/094examine whether the permission to withdraw the suit isallowable especially when a counter claim had been raised bythe additional 3rd and 4th defendants in the suit and also inview of the orders passed by the court appointing an AdvocateCommissioner as returning officer to conduct the election.After disposing of the writ petition as above, additional 4thdefendant moved an application to transpose him as theplaintiff in the suit, who by seeking withdrawal was stated asabandoning the suit. Transposition so sought by theadditional 4th defendant was objected to by the plaintiff andalso by the 1st and 2nd defendants. The learned Munsiff, afterhearing both sides, allowed the application moved by the4th defendant for transposing him as the plaintiff in the suit tocontinue its prosecution vide Ext.P8 order. Propriety andcorrectness of Ext.P8 order is challenged by the 2nd defendantin the writ petition W.P.(C).No.18587 of 2009. 3. Though election to the Kannur branch of the1st defendant Indian Medical Association was directed to beconducted by appointing an Advocate Commissioner as thereturning officer, it is stated, in view of the noncooperation ofthe 4th respondent and nonsupply of the voters list, the WPC.NOS.18587 & 18593/095election could not be conducted. The 4th respondent had alsochallenged the order of the court below to conduct theelection to the local branch by filing a writ petition before thisCourt. That writ petition was, however, not pressed as theplaintiff had expressed his desire not to press the suit on thefile of the court below. In the writ petition, the 4th respondentis stated to have produced a copy of the voters list showingthe members of the local branch eligible to exercise franchisein the election. Producing a copy of that voters list, the 3rd and4th defendants applied for issuing of directions/orders to theAdvocate Commissioner to conduct the election of the localbranch. The court below allowed that application directingthe Advocate Commissioner to publish the said list, fixing atime limit for filing objections, if any, and, then, consider suchobjections, finalise the list and proceed with the conduct ofthe election. Ext.P11 is the copy of the order so passed by thecourt. Challenge in the writ petition W.P.(C).No.18593 of2009 is against Ext.P11 order.4. The orders impeached in the writ petitions, thoughdifferent and distinct, the challenges raised to assail them arein common. Such challenges are mainly based on the WPC.NOS.18587 & 18593/096abandonment/ withdrawal of the suit by the plaintiff. Orderpassed by the court below for transposition of the 4thdefendant as plaintiff, permitting him to prosecute the suit isalso based on the withdrawal of the suit by the originalplaintiff. The learned counsel appearing for the 2nd defendantassailed the orders of the court below as patently erroneousand unsustainable under law and facts. Inviting my attentionto Ext.P1 copy of the plaint and the reliefs claimedthereunder, the learned counsel submitted that the suit hasbecome infructuous as a decree was sought only against the2nd defendant, directing him to conduct the election for theyear 2007-08, which now has become impracticable as theperiod is over and also since the 2nd defendant has long sinceceased to be a Secretary of the local branch. No relief asclaimed in the suit as against him is permissible under law, isthe further submission of the counsel. Suit has becomeinfructuous is the main thrust of attack canvassed by thelearned counsel to contend that the orders passed by the courtbelow allowing transposition of the 4th defendant as plaintiff,permitting him to prosecute the suit, is unsustainable underlaw. Another line of attack canvassed by the learned counselis that there is no identity of interest as between the original WPC.NOS.18587 & 18593/097plaintiff and the additional 4th defendant, who was permittedto be transposed as the plaintiff in the suit. The 4th defendanthad filed a written statement jointly with the 3rd defendantraising a counter claim as against the 2nd defendant in the suit,but, not against the plaintiff. Contentions raised in the writtenstatement are quite in conflict with the allegations set out inthe plaint and he had no identity of interest with the plaintiffin the suit, and that being so, his transposition as plaintiff forthe reason the original plaintiff has abandoned his suit,according to the counsel, is impermissible. Reliance is placedon Nagoor Gani alias Rajamani and others v. GandhiMeenal and others (1988 (2) MLJ 171) to contend thatthere must be identity of interest between the plaintiff and thedefendant, who wants to be transposed as a plaintiff in thesuit. Another ground raised by the counsel to impeach theorders of the court below is based on the subsequent eventsthat transpired after the institution of the suit. The parentbody, 4th respondent, pursuant to the institution of the suit,had referred the disputes relating to the election of theKannur branch of the Indian Medical Association, and anaward had already been passed by the Arbitrator appointed,by which, a new branch had been constituted, and the 3rd and WPC.NOS.18587 & 18593/0984th defendants no longer continue as members of the Kannurbranch, in respect of which, the election to the office bearersis sought for, is the case of the learned counsel for the2nd defendant. In view of that subsequent event, which issupported by Ext.P9 award (copy of which is produced inW.P.(C).18953 of 2009) passed by the arbitrator appointed bythe 1st defendant Association, it is contended that the4th defendant has no locus standi to prosecute the suit even ifhis transposition as plaintiff is found sustainable for onereason or another. The reliefs claimed in the suit havingbecome infructuous and the 4th defendant on transposition asplaintiff is incompetent to prosecute the suit, according to thelearned counsel, the orders impugned in the writ petitions areliable to be set aside. 5. The learned counsel for the plaintiff and4th respondent supported the arguments canvassed by thelearned counsel for the 2nd respondent that the orderschallenged in the writ petitions warrant interference andsetting aside exercising the visitorial jurisdiction vested withthis Court. The learned counsel for the 4th respondentinviting my attention to the exhibit produced as Ext.R4 (a) WPC.NOS.18587 & 18593/099along with its counter affidavit in W.P.(C).No.18593 of 2009contended that since the 4th defendant is no longer a memberof the Kannur branch, he is incompetent to prosecute the suitfor having an election to that branch getting himselftransposed as a plaintiff in the suit. 6. The learned counsel appearing for the 1st and2nd respondents strenuously contended that the challengeraised that the suit has become infructuous cannot beaccepted in view of the orders passed by the court appointingan Advocate Commissioner to conduct the election to the1st defendant Association. Such orders had been passedpursuant to directions given by this Court in an earlier writpetition, is also canvassed by the learned counsel to contendthat it is only proper, correct and necessary in the interest ofjustice that the said orders be implemented so as to reach itslogical conclusion. Challenge raised that the 4th defendant hasno identity of interest with the plaintiff to get himselftransposed as the plaintiff for prosecution of the suit, once itwas abandoned by the original plaintiff, is also refuted by thelearned counsel contending that the identity of interest for theconduct of the election to the 1st defendant Association need WPC.NOS.18587 & 18593/0910be only as members of the Association and nothing more. Ason the date of the suit, the 3rd ad 4th defendants were membersof the Association were not in dispute, submits the learnedcounsel. So far as the subsequent event canvassed that anaward had been passed by the Arbitrator appointed by the4th respondent, by which the 3rd and 4th defendants are statedto have ceased to be the members of the 1st defendantAssociation, it is submitted by the counsel, the award ischallenged in appropriate proceedings as envisaged by law,and since the award has not become final and enforceable asunder Section 36 of the Arbitration and Conciliation Act, novalue can be given to the award passed during the pendencyof the suit in respect of a matter subject to the adjudication ofthe court in the suit. Award passed by the 4th respondent, it issubmitted, cannot oust the jurisdiction of the court or nullifythe orders passed by the court to conduct the electionappointing 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 thecounsel. WPC.NOS.18587 & 18593/09117. Since the facts are not in dispute, the primaryquestion that emerges for consideration in examining thecorrectness of the orders impeached in both these writpetitions, needless to point out, rests on the permissionaccorded to the 4th defendant by the court below to transposehim as the plaintiff to prosecute the suit when the originalplaintiff abandoned or withdrew the suit seeking its dismissalas not pressed. Order XXIII Rule 1 of the Code of CivilProcedure permits the court to deal with the withdrawal ofsuit or abandonment of part of a claim. So far as thewithdrawal of the suit is concerned, no permission as suchfrom the court may be necessary, but to institute a fresh suiton the same cause of auction after withdrawing the previoussuit, such permission is a must from the court trying theearlier suit. Even where permission is not sought for toinstitute a fresh suit, but, only withdrawal and abandonmentof the suit by the plaintiff, it is open to the court to permit anyof the defendants who applies to be transposed as plaintiff tocontinue the prosecution of the suit, subject to its satisfactionthat, such applicant/defendant has a substantial question to bedecided as against any of the other defendants in the suit. WPC.NOS.18587 & 18593/0912Order XXIII Rule 1 of the Code of Civil Procedure deals withthe power or authority of the court to permit a defendant, whoapplies to be transposed as a plaintiff on abandonment orwithdrawal of the suit by the original plaintiff. Order 23 Rule1-A of the Code of Civil Procedure reads thus:“[1-A. When transposition ofdefendants as plaintiffs may bepermitted:- Where a suit is withdrawn orabandoned by a plaintiff under Rule 10 ofOrder I, the Court shall, in consideringsuch application, have due regard to thequestion whether the applicant has asubstantial question to be decided asagainst any of the other defendants.]8. The conditions to be satisfied for such transposition iswithdrawal or abandonment of the suit by the plaintiff andapplication by the defendant to be transposed as plaintiffunder Order 1 Rule 10 of CPC, and satisfaction of the courtthat the applicant/defendant has a substantial question to bedecided as against any of the other defendants in the suit.Though it has been contended that the nonpressing of the suitby the plaintiff would not constitute withdrawal orabandonment as covered by Order XXIII Rule 1 of the Code ofCivil Procedure, I do not find any merit in the contention WPC.NOS.18587 & 18593/0913since nonpressing, in effect, is an abandonment of the suitclaim. The first two ingredients under the rule being satisfied,that is, abandonment of the suit claim by the plaintiff andapplication by the 4th defendant to transpose himself as theplaintiff, the larger question to be considered is whether the4th defendant has a substantial question to be decided asagainst the other defendants in the suit. In that context,whether he has any identity of interest with the originalplaintiff in respect of the suit claim raised also assumes muchsignificance. Ext.P2 in W.P.(C).No.18587 of 2009 is the jointwritten statement filed by the 3rd and 4th defendants in thesuit. In their joint written statement, these defendants haveraised a counter claim, which is seen directed against the2nd defendant. A counter claim cannot be raised against thedefendant in the suit alone had been advanced before me tochallenge the merit of that claim and also that thosedefendants have no identity of interest with the originalplaintiff in the suit. A counter claim had been raised againstthe 2nd defendant has to be examined in the backdrop that the3rd and 4th defendants have advanced a specific case that it is acollusive suit as between the plaintiff and also the2nd defendant to subvert the due election process to the office WPC.NOS.18587 & 18593/0914bearers of the 1st defendant Association. With the 1st and2nd defendants remaining absent, the plaintiff had obtained anorder for conducting of election by the 2nd defendant, and thatelection process was later found to be improper by the courtbelow, and, subsequently, an Advocate Commissioner hadbeen appointed as returning officer to conduct the electionalso cannot be lost sight of. The decision relied by thelearned counsel deals with a case where the plaintiffcontinued very much in the suit after seeking for acompromise decree being passed in recognition of theirrights; but, in the present case, the plaintiff wanted toabandon his suit after orders had been passed by the court forconduct of the election to the 1st defendant Association at theinstance of the 3rd and 4th defendants. Suit has been filed as acollusive affair with the 2nd defendant and by abandonment ofthe suit the plaintiff wants to nullify the order of the court toconduct the election through an Advocate Commissioner, isthe 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 fortransposition as the plaintiff when the original plaintiffabandoned or withdrew the suit has to be determined with WPC.NOS.18587 & 18593/0915reference to the pleadings and also the facts andcircumstances, and subsequent events involved in the suit andnot solely depend upon the case advanced by the plaintiff inthe plaint alone. More than the identity of interest, what is tobe looked into under Order XXIII Rule 1-A of CPC is thequestion whether the defendant who seek the transpositionhas a substantial question to be determined as against theremaining defendants in the suit. Where that is shown to beestablished, the transposition of a defendant as plaintiff in theplace of the original plaintiff, who has abandoned orwithdrawn the suit, has to be allowed. The identity of interestwhich a defendant need show is only the identity of interestwith the plaintiff for the relief claimed, which in the presentcase is the conduct of a proper election to the first defendantAssociation. It cannot be stated that the 4th defendant has noidentity of interest with the plaintiff in the conduct of electionto the 1st defendant Association, in respect of which, the2nd defendant was the Secretary and who continued to be assuch, despite his term being over, without conducting anyfresh election. So, there is no merit in the challenge that the4th defendant has no identity of interest with the originalplaintiff and the relief sought for in the suit, the conduct of the WPC.NOS.18587 & 18593/0916election to the 1st defendant Association. 9. The election was sought for the year 2007-08, whichwas highlighted to contend that the suit has becomeinfructuous deserve to be taken note of only for its rejection.Since the court is seized of the matters, the disputes coveredby the lis, and it had passed orders appointing an AdvocateCommissioner for conducting an election to the office bearersof the 1st defendant Association the authority or power of thecourt to conduct the election beyond the period stated in therelief claimed, and, thereby, mould the relief sought for takingnote of the facts and circumstances involving the subsequentevents cannot be doubted for a moment. I do not find anymerit in the submission that the suit has become infructuousespecially in the light of the directions given by this Court inthe earlier writ petition W.P.(C).No.16489 of 2007 (Ext.P5),directing the court below to issue appropriate orders in thematter of the appointment of an Advocate Commissioner toconduct the election to the 1st defendant Association. 10. An arbitration award has been passed by which the3rd and 4th defendants have ceased to be members of the WPC.NOS.18587 & 18593/09171st defendant Association, as a separate and distinct unit hasbeen carved out under the award, which has been canvassedas another ground to impeach the orders passed by the courtbelow does not at all impress me. As rightly contended by thelearned counsel for the 1st and 2nd defendants, it has not beenshown that the award has become final and enforceable.Further more, the orders passed by the court over thecontroversies arising for adjudication in the suit cannot benullified or made ineffective for the reason that during thependency of the suit, arbitration proceedings over the disputehad culminated in passing of an award. In case, the2nd defendant had any case that the disputes involved in thesuit are amenable to arbitration, it should have been broughtto the notice of the court to get appropriate orders at theproper time as envisaged under Section 8 of the Arbitrationand Conciliation Act, 1996, but that was not done. The4th respondent even now remains not a party to the suit. Eventhe plaint shows that the parent body and the branches aregoverned by separate bye-laws and all local branches of the4th respondent are governed by their own bye-laws. If that beso, solely on the basis of an award passed by the4th respondent Association, which has not become final, it WPC.NOS.18587 & 18593/0918cannot be contended for a moment that the suit has becomeinfructuous. I do not want to express any opinion on themerit of the award which is stated to be under challenge inappropriate proceeding as envisaged under the Arbitrationand Conciliation Act. None of the observations made by mewith respect to the award shall have any reflection in any suchproceedings as the reference to the award has been made onlyfor the purpose of examining the challenges raised against theorders impugned in the writ petitions. I find that the challenges raised against Ext.P8order in W.P.(C).No.18587 of 2009 and Ext.P11 orderin W.P.(C).No.18953 of 2009 are meritless, andboth the writ petitions are dismissed. S.S.SATHEESACHANDRAN JUDGEprpAt page 13 (paragraph No.7) of the judgment dated18/9/2009 in WP(C) Nos.18587/09 & 18593/09, the words“under rule 1, and a defendant applies to be transposed WPC.NOS.18587 & 18593/0919as a plaintiff” are incorporated after the words “abandonedby a plaintiff” and before the words “under Rule 10 ofOrder I” in the quotation of Order 23 Rule1-A CPC:as per order dated 30/1/2009 in WP(C) Nos.18587 &18593/2009.Sd/-Registrar (Judicial)