IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 SA.No. 139 of 2000(G) -------------------------------- AS.357/1996 of DISTRICT COURT, THRISSUR OS.719/1989 of PRL.MUNSIFF COURT,THRISSUR .................... APPELLANT(S): 7TH DEFENDANT IN OS.719/1989/APPELLANT IN AS. 357/1996. ---------------------------------------------------------------------------------------------------------------- P.T.SANKARANARAYANAN, S/O. POTTEKKATTU THAMI, P.O. KIZHUPPILLIKKARA, PERINGOTTUKARA, TRISSUR. BY ADVS. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN IST RESPONDENT(S): PLAINTIFF IN OS. 719/1989/IST RESPONDENT IN AS. 357/1996 ----------------------------------------------------------------------------------------------------------------------- 1. R.SUNITHA, W/O.LOKHANATHA BANERJI, ''VIJAYAN & LOKHANATHAN'', KOZHIPARAMBIL HOUSE, PARTNER, ARCHANA ELECTRONICS, HOUSE NO.99, CHELOOR MANA QUARTERS, POOTHOLE, THRISSUR 680 004. 2ND RESPONDENT /2ND RESPONDENT IN AS. 357/1996/IST DEFENDANT 2. P.P.DINESAN, S/O.PRABHAKARAN, PALLIYIL HOUSE, P.O. ANTHIKKAD, THRISSUR 680 641. RESPONDENTS 3 TO 11/ RESPONDENTS 4 TO 12 IN AS.357.1996/DEFENDANTS 3. SAROJA KRISHNAN, W/O.T.K.KRISHNAN, THAZHATHUVEETTIL HOUSE, P.O.KATTOOR, THRISSUR 680 702. 4. P.K.SUNIL, S/O. POVVARA KUNAMAMAN, P.O.KATTOOR, THRISSUR 680 702. tss S.A. NO.139/2000 5. P.KUMARN, S/O.PARAKKOTTIL KRISHNAN, P.O.KRISHNAPURAM, MANNARGHAT, PALGHAT 690 533. 6. T.A.PREMANATHAN, S/O. THANAPARAMBIL APPUNNI P.O. THAMARAYOOR, KOTTAPADI, CHAVAKKAD THRISSUR 680 505. 7. BHANUMATHY, W/O. KODAPPILLY BHASKARAN, P.O. ALAPPAD, THRISSUR 680 641. 8. V.K.VELAYUDHAN, S/O.KUTTAN, VELEKKAT HOUSE, PERINGOTTUKARA P.O., VADAKKUMMURI, THRISSUR 680 565. 9. C.K.VALSAN, S/O.CHEMBIPARAMBIL KRISHNANKUTTY, P.O. NATTIKA, THRISSUR 680 566. 10. A.K.RAJITHA, W/O.K.P.SURENDRANATHAN, KODAPPULLY HOUSE, NOW RESIDING AT C/O.K.P.SURENDRANATHAN, ENGINEER, ARABIAN CONSTRUCTIONS P[.B. NO.609, SHARJAH, U.A.E. 11. M.A.SATHIAN, MELADATH HOUSE, P.O./ PERINGOTTUKAR, VADAKKUMURI, THRISSUR 680 565. RESPONDENTS 12 TO 15/ ADDL.RESPONDENTS 13 TO 16 IN AS. 357/96/LEGAL REPRESENTATIVES OF 3RD RESPONDENT K.A.KRISHNAN IN AS. 357/1996. 12. JANAKI, W/O.KRISHNAKUMAR, KARUVATHIL HOUSE, PERINJANAM, CHAKARAPADAM P.O., THRISSUR 680 686. 13. PREMKUMAR, S/O.KRISHNAKUMAR, DO. DO. 14. MADHUKUMAR, S/O.KRISHNAKUMAR, DO. DO. 15. RAJAKUMAR, S/O.KRISHNAKUMAR, DO. DO. R1 BY ADV. SRI.N.P.SAMUEL R 10 ,11 & 13 BY ADVS.SRI.N.SUBRAMANIAM, SRI.M.S.NARAYANAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- SA No.139 of 2000 ------------------------------------- Dated this the 6th day of April 2011 Judgment Aggrieved by the judgment and decree in OS No.719/89 as confirmed in AS No.357/96, the seventh defendant in the suit has come up in appeal before this court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. As per the plaint averments, the partnership was constituted as per a deed dated 18.3.1978. The plaint narrates the purpose for which the partnership was constituted and the business which it is to carry on. It is stated that initially, there were 17 partners in the firm i.e., the plaintiff, the second defendant, defendants 4 to 11 and others. On 09.04.1979, one of the partners retired and there was a reconstitution in the firm. Thereafter, several other partners also retired and ultimately, the total number of partners was reduced to 13 and a fresh deed was SA 139/2000 2 executed. In the year 1985, one partner passed away and in his place, the plaintiff was admitted as a partner. Suffice is to say that the suit was laid for dissolution of the partnership firm and for other reliefs. 3. Defendants 1 to 4 and 6 to 12 contested the suit. According to them, the suit is not maintainable. The firm was constituted on 18.3.1973. They denied the plaint allegations and prayed for dismissal of the suit. 4. On the basis of the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and no other evidence was adduced. On the basis of the available evidence, a preliminary decree was passed by the trial court. The aggrieved first defendant carried the matter in appeal as AS No.357/96 before the District Court, Thrissur. Before the lower appellate court, the sole contention taken was that the suit was not properly framed as the partnership firm was not arrayed as a defendant. No other point was urged before the lower appellate court. The lower SA 139/2000 3 appellate court found it to be an untenable ground and dismissed the appeal after modifying the preliminary decree passed by the trial court. 5. In this second appeal, notice is seen issued on the following questions of law : 1.Whether the courts below are correct in finding that the premises/room taken on by a licensee from a Municipality and used for the conduct of the business of the firm is to be returned back to the licensee after the dissolution of the firm. 2.Whether the premises/room taken on licence from a Municipality by a licensee and leased out to a firm for the conduct of its business will form or become an asset of the firm and is not the lease hold right of the firm from the licensee (without there being any privity of contract between the firm and the licensor municipality) that alone form the asset of the firm. 3.Are the courts below correct in not ordering restoration of the premises used by the firm to the licensee on SA 139/2000 4 dissolution of the firm valuing, if at all, only the tenancy right from the licensee as an asset of the firm for accounting purposes after dissolution. 4.In the facts and circumstances of the case, are the judgments and decrees of the court below are correct and sustainable in so far as it has failed to order restoration of the premises to the licensee. 6. True several grounds are raised in the second appeal and questions of law have been formulated. But, it appears, one of these grounds was raised before the lower appellate court. There, only one contention was taken and that was found against. There is nothing to show that the view taken by the lower appellate court regarding that issue is erroneous either on facts or in law. The second appeal is without any merits and it is accordingly dismissed. There will be no order as to costs. P.Bhavadasan, Judge sta SA 139/2000 5 SA 139/2000 6