KERALA NADVATHUR MUJAHIDEEN Vs. HUSSAIN MADVOOR

JUDGEMENT

(1.) 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 Mujahidecn 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 directions 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 Chanel Ardawatlya v. Anil Panjwani and it was argued that defendants having failed to raise a counterclaim in the written statement arc 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 as per the counter claim, the cause of action has arisen after filing of the written statement and therefore counter claim should not have been entertained by the learned Munsiff by allowing the application filed under Order VI Rule 17 of the Code.