Kerala Nadvathur Mujahideen vs Hussain Madvoor

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(Ker) 632

Judges : M.SASIDHARAN NAMBIAR
Kerala Nadvathur Mujahideen - Appellant
Versus
Hussain Madvoor - Respondent
Case No : WP(C). No.14016 of 2006 (R)
Decided On : 10/09/2006
Advocates Appeared :
For the Petitioner : K.V. Sohan, K. Sreeja Sohan, Advocates. For the Respondents: C. Khalid, N. Gopinatha Panicker, R.O. Muhamed Shemeem, T.P. Sajid, B.G. Bhasker, Advocates.

Headnote:
Code of Civil Procedure, 1908 - Order VI Rule 9 - A registered Society registered under Societies Registration Act - First respondent was its Secretary - The society represented by the then Secretary filed O.S. before Munsiff Court, seeking a decree for declaration that the resolution taken at the meeting convened by first respondent/second defendant is invalid and is not binding on the petitioner society - A decree for permanent prohibitory injunction was also sought - First respondent filed a written statement disputing the claim and denying the plaint allegations - Petitioner filed I.As seeking order of temporary injunction restraining the defendants from using the seal and letter pad and name of the petitioner society from operating the bank account - Learned Munsiff granted an order of temporary injunction and It was challenged before District Court - Held, If the result of exercising the discretion in favour of the defendant would result in reopening of the trial or repetition of the steps already taken by recalling the witnesses, the discretion cannot be exercised in favour of the defendant - As provided under sub r.(3) of R.6A a plaintiff is entitled to file a written statement in answer to the counter claim - Writ Petition fails and is dismissed.

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

The case involves a registered society, Kerala Nadvathul Mujahideen, and the dispute centers around the validity of a resolution taken at a meeting and the conduct of elections within the society (!) (!) .
The defendant filed an application under Order VI Rule 17 of the Civil Procedure Code to amend the written statement to include a counter claim for conducting elections, which was allowed by the trial court (!) .
The petitioner argued that the delay in filing the amendment (over two years) rendered it barred by time, and that the court should have dismissed the application based on procedural rules and the delay involved (!) (!) .
The respondent’s position was that a counter claim can be raised either as part of the original written statement, through amendment, or via a subsequent pleading, provided the cause of action arose before or at the time of filing the written statement (!) (!) .
It was emphasized that the purpose of allowing counter claims is to avoid multiple proceedings and to resolve all disputes between the same parties in a single trial, but such claims should not cause undue delay or re-opening of the trial (!) .
The court noted that a defendant has the right to raise a counter claim as of right in the original written statement if the cause of action accrued before or at the time of filing, but subsequent claims require leave of court and should not be used to prolong proceedings unnecessarily (!) (!) .
The legal principles affirm that amendments to pleadings, including the introduction of counter claims, are to be permitted liberally, especially when they serve the purpose of justice and judicial economy, but courts have discretion to refuse if such amendments cause delay or prejudice (!) (!) .
The court found that the delay in filing the amendment was justified given the circumstances, the purpose of the amendment was to clarify the cause of action for conducting elections, and the trial had not yet commenced (!) .
The court exercised its discretion in favor of allowing the amendment and the counter claim, emphasizing that procedural rules should not be used to unjustly bar legitimate claims, especially when the delay was explained and the interests of justice favored allowing the amendment (!) (!) .
Ultimately, the court dismissed the writ petition, upholding the order allowing the amendment and the counter claim, and reinforced that procedural flexibility is essential to serve the ends of justice (!) .

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Judgment :-

Can a counterclaim be allowed to be raised subsequent to the filing of the written statement? Can it be permitted to be raised by way of amendment of the written statement and if so under what circumstances? These are the questions to be decided in this petition.

2. The brief facts of the case necessary for decision in the case are as follows:- Kerala Nadvathul Mujahideen is a registered Society registered under Societies Registration Act. First respondent was its Secretary. The society represented by the then Secretary filed O.S.568/02 before Munsiff’ Court, Kozhikode seeking a decree for declaration that the resolution taken at the meeting convened on 17.8.02 by first respondent/second defendant is invalid and is not binding on the petitioner society. A decree for permanent prohibitory injunction was also sought. First respondent filed a written statement on 19.2.03 disputing the claim and denying the plaint allegations. Petitioner filed I.A.2858/02 and I.A.2982/02 seeking order of temporary injunction restraining the defendants from using the seal and letter pad and name of the petitioner society from operating the bank account. Learned Munsiff granted an order of temporary injunction. It was challenged before District Court in CMA No.241/02, 242/02 and 243/02. On 6.1.03 the appeals were disposed holding that the period of the term of office of the General Secretary who represented the Petitioner society expired and therefore fresh election has to be conducted. An Advocate Commissioner was appointed for conducting the election. Petitioner challenged that order before this court in W.P.(C)32676/03. As per Ext.P3, order of the District Judge was set aside holding that election ordered by the District Court is not proper. It was found that as the suit was filed for a declaration that the resolution taken in the meeting is invalid, the relief granted in the CMA was beyond the prayers. This court restored the order of Munsiff and also directed the trial court to dispose of the suit expeditiously. Defendants thereafter filed Ext.P4 application under Order VI Rule 17 of Code of Civil procedure (hereinafter called as the Code) for permission to amend the written statement raising a counter claim to appoint a Commissioner to conduct the elections to the Executive Committee of the Society from among the members of the Sakhas as on 18.8.02. It was opposed by the plaintiff by filing Ext.P5 counter statement. As per Ext.P6 order, learned Munsiff allowed the application making it clear that the counter claim will be deemed to have been instituted only on 12-4-06 date of the said order. It is challenged in this petition filed under Article 227 of the Constitution of India by the plaintiff.

3. The argument of Advocate Sri. K.V. Sohan, learned counsel appearing for petitioner was that as the defendants had filed written statement on 19.2.03 and Ext.P4 application for amendment of the written statement incorporating a counter claim was filed only on 23.11.05 after a delay of two years and nine months, it is hopelessly barred by the provisions of Order VIII Rule 6A of Code. It was also contended that learned Munsiff should have dismissed Ext.P4 application in view of the direction of this court on 18.11.05 to dispose of the suit expeditiously and had set aside the direction of the District Judge to appoint a Commissioner to conduct the elections. It was the argument of the learned counsel that as no leave of the court was sought to raise a counter claim by a separate application, Ext. P4 application should have been dismissed. Reliance was placed on the decision of the Apex Court in Ramesh Chand Ardawathlya V. Anil Panjwani (AIR 2003 SC 2508) and it was argued that defendants having failed to raise a counter claim in the written statement are precluded from introducing a counter claim when trial of the suit is to be commenced and defendants should have been directed to file a separate suit. The learned counsel also argued that even

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