IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 WP(C).No. 22955 of 2009(O) -------------------------- OS.107/2005 of SUB COURT,KATTAPPANA .................... PETITIONER(S): ------------------------- ANTONY, AGED 50 YEARS, S/O. ITTIAVIRAH, VAZHAPPALLIYIL HOUSE, NORTH PARAVUR KARA, ERNAKULAM DISTRICT – 683 513. BY ADV. MR.A.C.DEVASIA RESPONDENT(S): --------------------------- 1. M/S THARA VINES, KATTAPPANA REPRESENTED BY GEORGE JOSEPH, S/O. JOSEPH, CHOORAKKAT HOUSE, KANCHIYAR KARA-AYYAPPANKOIL VILLAGE, UDUMBANCHOLA TALUK-IDUKKI DISTRICT – 685 508. 2. ANNY, W/O. LATE THOMAS, VALIYAPURAKKAL HOUSE, CHOORAKKAT HOUSE, KANCHIYAR KARA-AYYAPPANKOIL VILLAGE, UDUMBANCHOLA TALUK-IDUKKI DISTRICT – 685 508. 3. ZEON, S/O. LATE THOMAS, VALIYAPURAKKAL HOUSE, AYYAPPANKOIL VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT – 685 508. 4. ZIBIN,S/O. LATE THOMAS, VALIYAPURAKKAL HOUSE, CHOORAKKAT HOUSE, KANCHIYAR KARA-AYYAPPANKOIL VILLAGE, UCUMBANCHOLA TALUK, IDUKKI DISTRICT – 685 508. 5. ZABATHY, S/O. LATE THOMAS, VALIYAPURAKKAL HOUSE, CHOORAKKAT HOUSE, KANCHIYAR KARA-AYYAPPANKOIL VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT – 685 508. 6. COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE,THIRUVANANTHAPURAM – 1. 7. ASSISTANT EXCISE COMMISSIONER, IDUKKI THODUPUZHA – 685 584. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.22955 of 2009 - O --------------------------------- Dated this the 12th day of August, 2009 J U D G M E N T The writ petition has been filed seeking the following reliefs: “i) To issue a writ of certiorari or any other appropriate writ, order of direction quashing Exhibit P8 order dated 4.7.2009 I.a.No.751/2008 in O.S.No.107/2005 of the Sub Court, Kattappana. ii) To issue a writ of mandamus or any other appropriate writ, order or directions directing the court below to accept the written statement with counter claim filed by the petitioner as per Ext.P2.” 2. Petitioner is the additional seventh respondent in O.S.No.107 of 2005 on the file of the Sub Court, Kattappana. He filed his written statement belatedly with a petition to condone delay. Learned Sub Judge, not being satisfied with the cause shown for condoning delay, dismissed that petition with the result the written statement also found not acceptable. P8 is the copy of that order. Propriety and correctness of P8 order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. W.P.(C).No.22955 of 2009 - O 2 3. I heard the counsel for the petitioner. 4. On a previous occasion, petitioner had approached before this Court when the court below refused to accept the written statement filed moved with a petition to condone delay passing an order making some observations about the entertainability raised in the counter claim in the written statement. That writ petition was disposed of by P7 judgment making it clear that while conducting enquiry on the delay petition the court should not embark upon the merit of the counter claim. However, noticing the case canvassed by the defendant, it had been observed that as a partner without seeking dissolution of the firm, he cannot and is, further, barred under law to set up a challenge against the firm. Pursuant to setting aside the previous order of the court below under P7 judgment, the delay petition was enquired into by the learned Sub Judge and finding that the petitioner has not made sufficient cause for condoning the delay, P8 order was passed dismissing the delay petition. Having regard to the totality of the facts and circumstances involved, I find the interests of justice do not call W.P.(C).No.22955 of 2009 - O 3 for entertaining this petition where it is prima facie shown that there is legal bar to the petitioner as a partner of the firm to challenge the relief claimed by the firm in the suit. He has to work out his remedy before the appropriate forum as provided by law. So, I am not going into the merits of P8 order. I find the challenge against P8 by way of writ petition cannot be entertained. The writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-