IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 7485 of 2009(O) ------------------------- OS.107/2005 of SUB COURT,KATTAPPANA .................... PETITIONER(S): --------------- ANTONY AGED 58 YEARS, S/O.ITTIAVIRAH, VAZHAPPALLIYIL HOUSE, NORTH PARAVUR KARA, ERNAKULAM DISTRICT. BY ADV. SRI.A.C.DEVASIA RESPONDENT(S): --------------- 1. M/S.THARA VINES, KATTAPPANA REPRESENTED BY GEORGE JOSEPH, S/O.JOSEPH, CHOORAKKAT HOUSE, KACHIYAR KARA-AYYAPPANKOIL VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 2. ANNY, W/O.LATE THOMAS, VALIYAPURAKKAL HOUSE, CHOORAKKAT HOUSE, KANCHIYAR KARA-AYYAPPANKOIL VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 3. ZENON, S/O.LATE THOMAS, VALIYAPURAKKAL HOUSE, CHOORAKKAT HOUSE, KANCHIYAR KARA-AYYAPPANKOIL VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 4. ZIBIN, S/O.LATE THOMAS, VALIYAPURAKKAL HOUSE, CHOORAKKAT HOUSE, KANCHIYAR KARA-AYYAPPANKOIL VILLAGE, UDUMBANCHOLA TALUK-IDUKKI DISTRICT. 5. ZABATHY, S/O.LATE THOMAS, VALIYAPURAKKAL HOUSE, CHOORAKKAT HOUSE, KANCHIYAR KARA-AYYAPPANKOIL VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 6. COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM. WPC.7485/09 7. ASSISTANT EXCISE COMMISSIONER, IDUKKI, THODUPUZHA. ADV. SRI.M.G.KARTHIKEYAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON 16/06/2009 DELIVERED THE FOLLOWING: WPC.7485/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE MEDICAL CERTIFICATE ISSUED FROM MEDICARE HOSPITAL DATED 16.3.2007. EXT.P1(a): COPY OF THE CERTIFICATE FROM PNVM HOSPITAL DATED 20.12.2007. EXT.P2: COPY OF THE WRITTEN STATEMENT WITH COUNTER CLAIM DATED 21.5.2008. EXT.P3: COPY OF THE I.A.NO.751/2008 IN O.S.NO.107/05 BEFORE SUB COURT, KATTAPPANA. EXT.P4: COPY OF THE COUNTER FILED BY THE 1ST RESPONDENT DATED 20.6.2008 IN O.S.NO.107/2005. EXT.P5: COPY OF THE ORDER DATED 6.2.2009 IN I.A.NO.751/2008. EXT.P6: COPY OF THE PLAINT IN O.S.NO.107/2005. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.7485 OF 2009 () ----------------------------------- Dated this the 16th day of June, 2009 J U D G M E N T O.S.No.107/205 on the file of the Sub Court, Kattappana has been filed by the 1st respondent, a registered firm constituted under the Indian Partnership Act, 1932 for a declaration that a licence issued by the Excise department is the property of the firm and for consequential reliefs. The 7th defendant in the suit, the petitioner herein, a partner of the firm did not file the written statement in time. Later, he moved an application for receiving his written statement, in which, a counter claim was also raised with a petition for condoning delay. In the enquiry on the delay petition, petitioner (7th defendant) was examined and two medical certificates produced by him to prove his illness, which was shown as the cause for delay in filing the written statement, were exhibited in evidence as Exts.P1 and P1 (a). The learned Munsiff, after appreciating the materials, dismissed that application vide Ext.P5 order. The correctness and legality of that order is impeached in this petition by the 7th defendant WPC.7485/09 2 invoking the supervisory jurisdiction of this Court vested under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. Perusing Ext.P5 order, it is seen, the learned Munsiff dismissed the application moved by the petitioner (7th defendant) for condoning delay in accepting the written statement for the reason that the counter claim raised by him in his written statement for rendition of accounts of the firm is not legally acceptable. Though I am inclined to hold that the view expressed by the learned Munsiff that the counter claim raised in the written statement of the petitioner (7th defendant) for rendition of accounts of the firm in the present suit where the firm had filed a declaration of its right to a licence issued by the Excise department is proper, the larger question remains for consideration whether the learned Munsiff was justified in expressing such view on the merit of the counter claim raised in the written statement in an application for condoning the delay in receiving the written statement. The learned Munsiff, in the impugned order has not adverted to the merit of the cause shown for condonation of delay by the petitioner (7th defendant) for accepting his written statement. A definite WPC.7485/09 3 finding thereof has to be entered into, and then, if the cause shown for delay is satisfactorily explained, the question will emerge whether the written statement has to be received after eschewing the counter claim raised. If the learned Munsiff comes to the conclusion that no satisfactory cause for condonation of delay is made out, then, there ends the matter; but, if the cause shown is found acceptable, the question emerges for consideration whether the written statement is to be accepted after eschewing the counter claim in view of the settled position that no suit will lie as a general rule by one partner for accounts without praying for dissolution of the partnership. The relief claimed in the suit by the plaintiff is also to be taken into account in that context to examine whether the counter claim is entertainable even if a prayer for dissolution of the firm is also made. 3. Ext.P5 order is set aside directing the learned Munsiff to examine whether satisfactory cause has been shown by the petitioner (7th defendant) for condoning the delay in accepting that statement and on the finding to be entered therein to pass appropriate orders taking note of the observations made above. WPC.7485/09 4 4. Parties are directed to appear before the court below on 29.6.2009 and the learned Munsiff shall dispose of I.A.No.751/2008 as expeditiously as possible, at any rate, within a period of 15 days from the above date fixed for appearance of the parties. The learned Munsiff is also directed to give the suit top priority in hearing having regard to the fact that it was instituted as early as in 2005 and dispose it of as expeditiously as possible after affording reasonable opportunity to both sides to establish their case, at any rate before the closing of the court for Christmas holidays. Communicate a copy of the order forthwith to the court below and hand over copy to both sides on usual terms. Writ petition is disposed with the above observations. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009