IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 WP(C).NO. 36169 OF 2007(E) -------------------------- {O.S.NO.9/2004 OF THE SUB COURT, VADAKARA} .................... PETITIONER(S): --------------- C.H.MOOSSA HAJI, S/O.ATHRUMANKUTTY, AGED 62 YEARS, AYISHA MANZIL, KARIMBANAPALAM, VATAKARA. BY ADV. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT(S): --------------- V.P.BASHEER, VALIA PARAMBATH HOUSE, MUTTUNGAL, VATAKARA. ADDITIONAL RESPONDENTS 2 TO 5: 2. ZAREENA, THE WIDOW OF LATE BASHEER, AGED ABOUT 35 YEARS, VALIA PARAMBATH HOUSE, MUTTUNGAL, VATAKARA. 3. SAMEELA, (MINOR) D/O.LATE BASHEER, AGED ABOUT 17 YEARS, VALIAPARAMBATH HOUSE, MUTTUNGAL, VATAKARA, REPRESENTED BY NEXT FRIEND AND MOTHER ZAREENA. 4. NAZEER, (MINOR), S/O.LATE BASHEER, AGED ABOUT 12 YEARS, VALIAPARAMBATH HOUSE, MUTTUNGAL, VATAKARA, REPRESENTED BY NEXT FRIEND AND MOTHER ZAREENA. WP(C).NO. 36169 OF 2007 :: 2 :: 5. SHANOOD, (MINOR), S/O.LATE BASHEER, AGED ABOUT 10 YEARS, VALIAPARAMBATH HOUSE, MUTTUNGAL, VATAKARA, REPRESENTED BY NEXT FRIEND AND MOTHER ZAREENA. ADDITIONAL RESPONDENTS 2 TO 5 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT. R1 ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN & SMT.SATHYA SHREEPRIYA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).NO. 36169 OF 2007 :: :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE REGISTERED KYCHIT NO.1064/1972 DATED 10.08.1972 OF S.R.O. VATAKARA, EXECUTED BY THE PETITIONER RELATING TO THE BUILDING. EXT.P2: TRUE COPY OF THE PARTNERSHIP DEED DATED 01.02.1982. EXT.P3: TRUE COPY OF THE STATEMENT FILED BY THE PETITIONER IN C.S.29/2003 BEFORE THE SUB COURT, VATAKARA, DATED 25.02.2004. EXT.P4: TRUE COPY OF THE REPORT OF THE COMMISSIONER IN O.S.6/2004 AND O.S.9/2004 ON THE FILES OF THE SUB COURT, VATAKARA DATED 31.10.2007. EXT.P5: TRUE COPY OF THE STATEMENT OF ACCOUNT OF THE COMMISSIONER IN O.S.9/2004 OF THE SUB COURT, VATAKARA. EXT.P6: TRUE COPY OF THE ORDER DATED 17.07.2007 IN O.S.NO.6/2004 ON THE FILES OF SUB COURT, VADAKARA. EXT.P7: TRUE COPY OF THE ORDER DATED 03.11.2007 IN I.A.1014/2007 IN O.S.NO.9/2004 ON THE FILES OF SUB COURT, VADAKARA. RESPONDENTS' EXHIBITS: NIL EXT.R1(A): TRUE COPY OF THE ORDER DATED 20.08.04 IN W.P.(C) 19627/04 ON THE FILE OF THIS HONOURABLE COURT. EXT.R1(B): TRUE COPY OF THE RECEIVER'S REPORT DATED 03.11.2007. //true copy// P.S. To Judge SK/- S.S.SATHEESACHANDRAN, J. --------------------------------------------------- W.P.(C) No.36169 of 2007 --------------------------------------------------- Dated this the 2nd March, 2010. JUDGMENT The writ petition is filed by one of the partners of a firm, which had been ordered to be dissolved by the preliminary decree passed in O.S.No.9/04 by the learned Sub Judge, Vadakara directing settlement of accounts by appointing a receiver. Petitioner claimed for return of a key of a shop room which was earlier used by the firm for carrying its business activities contending that he alone had an exclusive tenancy right over that building. Even when the firm was constituted there was a specific provision that in the event of dissolution of the firm, according to the petitioner, it will revert back to him. After passing of the preliminary decree he applied for returning of the key of the shop room which had been earlier collected by the receiver on such appointment and taking over the assets of the firm. The application was opposed to by the contesting W.P.(C) No.36169 of 2007 :: 2 :: respondent, another partner who claimed that a previous application moved by the petitioner for the very same purpose, which was allowed by the trial court had been set aside by this court holding that petitioner is not entitled to have the return of the key at that stage. It is further contended that various directions issued in the preliminary decree directing the petitioner to produce the account books of the firm remained to be complied with and so much so, the receiver appointed by the court is prevented from completing the task entrusted to him. The order of the court below declining the request of the petitioner to return the key, in the given circumstances of the case, does not warrant interference is the case of the respondent. 2. I heard the counsel on both sides. 3. inviting my attention to the copy of the partnership deed produced as Ext.P2 in the writ petition and more particularly Clause 4-A in the deed, learned counsel for the petitioner submitted W.P.(C) No.36169 of 2007 :: 3 :: that as the partnership firm had been ordered to be dissolved under the preliminary decree in terms of the partnership deed, he is entitled to have the key of the room which was provided to the firm for carrying out its business. Even after dissolution of the firm, as there was delay in completion of the final decree proceedings, he is prevented from making use of the tenanted premises, but mulcted with the liability to pay rent thereof, it is submitted by the counsel. Since the building is kept unoccupied it is sustaining damage as well. 4. On the other hand, learned counsel for the respondent resisted the challenges against the impugned order passed by the court below submitting that this court has considered the merit of the claim canvassed by the petitioner for return of the key in an earlier writ petition. Copy of the judgment rendered in that writ petition is produced as Ext.R1(a), in the facts and circumstances present in the case, according to the counsel this court had already held that at this stage of the W.P.(C) No.36169 of 2007 :: 4 :: proceedings, petitioner is not entitled to get the key of the shop room. 5. I have considered the rival submissions of the counsel with reference to the materials produced. Perusing Ext.R1(a), the judgment rendered by this court on a previous occasion in W.P.9C)No.9627/04 over the very lame issue, it is noticed that pursuant to Ext.P2 partnership deed, there was an agreement between the petitioner and the respondent by which the petitioner had agreed to provide one half of the tenancy right over the building in favour of the respondent. This court had taken note of that circumstance with respect to other circumstances involved, to conclude that the petitioner is not entitled to get the key as stated in Clause 4-A of Ext.P2 partnership deed. When that be the case, I find, the writ jurisdiction of this court cannot be invoked again to unsettle the finding arrived in Ext.R1(a) canvassing a case again on the basis of Ext.P2 partnership deed. The trial court shall consider the request of the W.P.(C) No.36169 of 2007 :: 5 :: petitioner for return of the key along with other issues at the time of passing the final decree. The court below shall complete the proceedings as expeditiously as possible. Writ petition is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//