IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WP(C).No. 21728 of 2010(O) -------------------------- AGAINST THE ORDER DATED 18/02/2010 IN IA 1051/2009 IN OS.138/2007 of MUNSIFF COURT,HARIPAD .................... PETITIONER: --------------- SATHEESH VARGHESE, AGED 55, S/O.MATHEW VARGHESE, C.P.MANDIRAM, PUTHUKUNDAM MURI, KARTHIKAPPALLY VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA, PIN-690 516. BY ADV. SRI.G.BENO RESPONDENTS: --------------- 1. M/S.MATHEW VARGHESE AND CO. AWD IV OF KARTHIKAPPALLY-690 516. 2. SANTHOSH VARGHESE, MANAGING PARTNER, M/S.MATHEW VARGHESE AND CO., AWD 4 F KARTHIKAPPALLY, ALAPPUZHA DISTRICT-690 516 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 21728 of 2010 --------------------------------------- Dated this 13th day of July, 2010 JUDGMENT Petitioner is the defendant in O.S.No.138 of 2007 and petitioner in I.A.No.1051 of 2009 of the court of learned Munsiff, Haripad. That is a suit filed by the respondents - respondent No.1 is a partnership firm and respondent No.2 claimed to be its managing partner - for a declaration that reconstitution of the partnership as per document No.2522 of 2005 is valid, respondent No.2 is managing partner of the partnership firm, petitioner has no right or interest in the said partnership and for consequential injunction to restrain petitioner from interfering with the affairs of respondent No.1 or causing obstruction in the business being carried on by the respondents. According to the respondents, partnership (respondent No.1) was formed as per a deed dated 05-12-1990 with petitioner also as a partner but that partnership was reconstituted as per document No.2522 of 2005 as per which petitioner retired from the partnership on 24-05-2005 receiving all his dues and the wife of respondent No.2 was taken in as a partner. Petitioner has ceased to be a partner since then. It is the contention of respondents that consequent to W.P.C.No.21728 of 2010 : 2 : the said reconstitution, appropriate changes have been brought in the relevant records relating to the business carried on by respondent No.1. Petitioner filed written statement opposing the suit. He filed I.A.No.1051 of 2009 challenging maintainability of the suit relying on the provisions of Kerala Rationing Order and the Essential Commodities Act. He also contended that respondent No.1 was running business of public distribution of ration articles and in connection with that, he had preferred a complaint to the Taluk Supply Officer, Haripad. At that stage petitioner approached this court in W.P.C.No.15605 of 2006. This court directed the Taluk Supply Officer, Haripad to decide the dispute. That authority decided the complaint against petitioner which he challenged before the District Supply Officer, Alappuzha. That appeal was dismissed against which petitioner has approached Commissioner of Civil Supplies. In the court below, it was contended that in view of provisions of the Kerala Rationing Order and the Essential Commodities Act, jurisdiction of the civil court to entertain the suit is ousted. Learned Munsiff has stated that no plea is raised in the written statement regarding maintainability of the suit as urged in I.A.No.1051 of 2009. It is also stated by learned Munsiff that there is no express W.P.C.No.21728 of 2010 : 3 : or implied bar in Kerala Rationing Order or the Essential Commodities Act ousting jurisdiction of the civil court. Learned Munsiff has referred to the relevant decision on the point to hold that jurisdiction of the civil court is not ousted. It is contended by learned counsel for petitioner that in the matter of public distribution system civil court cannot entertain the suit and decide the dispute. 2. The suit is for a declaration regarding validity of reconstitution of the partnership as per document No.2522 of 2005 whereby petitioner is said to have retired from the partnership on 24-05-2005 and wife of respondent No.2 is said to have been taken as a partner. Dispute in the suit is whether there was such a reconstitution, if so, it is valid, whether petitioner has ceased to be a partner and he is entitled to participate in the business of partnership. Exts.P4 and P6, government orders relied on by petitioner do not oust jurisdiction of the civil suit expressly or impliedly. Nor can a government order control or affect Section 9 of the Code of Civil Procedure (for short, “the Code”) and oust the jurisdiction of civil court expressly or impliedly to entertain a suit which is of a civil nature. Clause 51 of the Kerala Rationing Order also does not in W.P.C.No.21728 of 2010 : 4 : any way oust the jurisdiction of civil court to decide the controversy involved in the present case. Section 12B of the Essential Commodities Act relied on by petitioner only ousts jurisdiction of the civil court to grant injunction or make any order for any other relief against the Central or State Governments or any public officer in the circumstances stated therein. That provision has no application to the present suit which is not against the Central or State Governments or any public officer. Learned counsel did not point out any other provision either in the Kerala Rationing Order or the Essential Commodities Act which ousted jurisdiction of the civil court to decide the issue raised in the present suit expressly or impliedly. The question to what extent reliefs prayed for could be granted is a matter to be decided in the suit. That does not in any way affect maintainability of the suit in the way it is framed. Having heard counsel for petitioner and gone through the relevant records and the order under challenge I do not find reason to interfere with the said order. Writ petition is therefore dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-