IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WP(C).No. 2921 of 2009(W) ------------------------------------------- OS.20/2008 of MUNSIFF COURT, ALATHUR .................... PETITIONERS: HAJI.A.ABOOBACKER, S/O.AHAMMED RAWTHER, AGRICULTURIST, CHITHALIYIL, KUZHALMANNAM AMSOM, ALATHUR TALUK. BY ADV. SRI.P.R.VENKETESH RESPONDENT: K.M.SULAIMAN, S/O.MUHAMMED MOLLA HAJIYAR, BUSINESS, CHANTHAPURAYIL, KUZHALMANNAM AMSOM DESOM, ALATHUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.2921 of 2009 W -------------------------- JUDGMENT Heard counsel for the petitioner. 2. Petitioner is the plaintiff in O.S.No.20/08 on the file of the Munsiff's Court, Alathur. Respondent is the defendant in the said suit. It is submitted that the suit is one for recovery of money from the respondent and that the respondent filed a written statement in the court below denying his liability and contending further that the suit agreement is one executed between the respondent and himself, but, he was executing the agreement in his capacity as a Managing Partner of a firm and that therefore, the partnership firm should be a necessary party. 3. The grievance of the counsel for the petitioner is that the question as to whether the suit is bad for non joinder of necessary parties was raised as an issue in the suit and was heard as a preliminary issue and the court below, vide WPC 2921/09 2 Exhibit P5 order, held that the firm is a necessary party and directed the petitioner/plaintiff to implead the partnership firm, in which the defendant is the Managing Partner, within fifteen days therefrom, namely, from 14.11.2008. 4. The contention that is advanced before me by the counsel for the petitioner is that according to the petitioner/plaintiff, the suit is not bad for non joinder of necessary parties; that the court below was only to give him an opportunity to cure the defect of non joinder of necessary parties, if any, instead of deciding the issue as a preliminary issue; that the petitioner/plaintiff, however, does not want to implead the firm, as according to the petitioner/plaintiff, the firm is not a necessary party; that the petitioner/ plaintiff is prepared to take the risk, if any and that the freedom not to implead a party should be given to the petitioner/plaintiff, who is prepared to face the consequences, if any, that is to WPC 2921/09 3 follow. The submissions made by counsel for the petitioners are legally correct and have to be upheld. 5. In the result, I set aside Exhibit P5 order and direct the court below to proceed with trial of the suit O.S.No.335/08. Counsel for the petitioner/ plaintiff having asserted that the petitioner/ plaintiff does not want to implead the firm to cure the alleged defect of non joinder of necessary parties, no further opportunity also need be given to the petitioner/plaintiff to cure the alleged defect of non joinder. The question as to whether the suit is bad for non joinder of necessary parties shall be decided by the trial court on the evidence that may be adduced in the case while disposing of the suit and if the answer is to the effect that the suit is bad for non joinder, the court below shall be at liberty to dismiss the suit. Petitioner is directed to produce a copy of this judgment before the court below forthwith. WPC 2921/09 4 The writ petition is allowed and is disposed of with the above directions. Issue copy of this judgment to the counsel for the petitioner urgently. 29th January, 2009 (K.P.Balachandran, Judge) tkv