IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 AS.No. 33 of 1998(C) ------------------------------ OS.480/1990 OF II ADDITIONAL SUB COURT, KOZHIKODE .................... APPELLANT/8TH DEFENDANT: --------------------------------------------- ALIKOYA, S/O.HYDROOSE HAJI, 23/1002, COTTON MILL ROAD, THIRUVANNUR P.O., KOZHIKODE-29. BY ADV. SRI.P.R.VENKETESH, SRI.P.R.RAJA. RESPONDENTS/PLAINTIFF & I DEFENDANT AND DEFENDANTS 3 TO 7 AND 9 AND 10: ----------------------------------------------------------------------- 1. M/S.UNITED TIMBER TRADERS, KOZHIKODE, REPRESENTED BY PARTNER SHRI M.K. RAVINDRAN. 2. M/S.KOTTUMMAL TIMBER MART, PANNIYANKARA, CALICUT-3. 3. THE BHAVANI TEA AND PRODUCE COMPANY LIMITED, PUNALUR. 4. MUDOLI AYISHABI, W/O.MUNDOLI HYDROSE HAJI, PANIYANKARA, KOZHIKODE. 5. KOYATTI, S/O.DO. DO. DO. 6. BICHIBI @ IMBICHI BEEVI, D/O. DO. DO. DO. 7. FATHIMA, D/O. DO. DO. DO. 8. RUKIYA, D/O. DO. DO. DO. 9. HAFEES, S/O. DO. DO. DO. R4 TO R6 BY ADV. SRI.P.K.MUSA, SRI.V.I.ABDUL KAREEM, SRI.N.SUKUMARAN, SRI.N.K.KARNIS. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = A.S.No.33 of 1998-C = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 24th day of May, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.This appeal is by the 8th defendant. He is the son of the 2nd defendant. 2.The plaintiff sued the 1st defendant, a firm represented by the 2nd defendant and also the 3rd defendant, another private limited company. The transaction between the parties, which was the foundation for the suit, related to felling of trees from Sirivani Group of Estates. 3.The court below found that it is the 1st defendant which is liable to satisfy the decree. It further found that the 2nd defendant who, during trial, died, was not liable to satisfy the decree as he AS33/98 -: 2 :- was not a partner of the 1st defendant firm. It also found that the appellant-8th defendant was the person liable to pay on behalf of the 1st defendant. 4.In this appeal by the 8th defendant, he contends that supplementary defendants 4 to 10 were impleaded only as legal representatives of the deceased 2nd defendant. They were sought to be recorded as partners only on the date or the penultimate day of disposal of the suit by the court below and therefore, they did not have the opportunity to meet any case against them as if they were partners. The next contention is that there is no material to show that the 8th defendant was a partner of the 1st defendant firm. 5.Having looked into the evidence on record, we are of the view that the aforesaid contentions do not lie for the 8th defendant to urge in this appeal. The reasons are two fold. AS33/98 -: 3 :- 6.Firstly, if Ext.A10 certificate of registration of 1st defendant firm is considered, it would show that the 8th defendant was one among those who were admitted to the benefits of that firm. It is true that he was then a minor. At the same time, he has not shown any material as to how the said firm, which is a partnership at will, had ultimately been closed down, if at all. We say this because, Ext.A10 was applied for and obtained during the pendency of the suit, i.e., during course of trial, in 1996 and it was obtained by the 1st defendant firm, though marked on the side of the plaintiff. The legitimate conclusion, therefore, is that the 8th defendant continues to be a partner of the 1st defendant firm. The 1st defendant is a registered firm. Therefore, going by the provisions of the Code of Civil Procedure, even if the person representing the registered firm in the suit had died pending suit, the non-impleadment of any other person does not affect the continued sustenance of the suit. AS33/98 -: 4 :- 7.Secondly, if we were to treat that the 1st defendant firm was not in existence on the date of the contract in question and the suit, the 2nd defendant is essentially shown to have been the person who meddled with the subject matter in as much as he was the person who acted in entering into the contract. Obviously, therefore, if we were to take it that the 1st defendant's name was merely taken as lent for the purpose of a trade by the 2nd defendant, the fundamental sufferance of such transaction would necessarily have to be with the 2nd defendant. If that were so, the 8th defendant is none other than one of the sons of the 2nd defendant and therefore, a legal representative. In this view of the matter also, decree stands. 8.Before parting with this appeal, we may note the submission of the learned counsel for the appellant that Ext.A8 judgment rendered in a different case and referred to by the court below AS33/98 -: 5 :- has since been set aside in appeal by this Court. We find from the discussions in the impugned judgment that the court below had noted certain aspects regarding the contents of the appeal against Ext.A8. However, having regard to the conclusions arrived at in the preceding paragraphs, we do not find it necessary to rest the conclusion on Ext.A8. Therefore, even if we were to ignore the findings of the court below based on Ext.A8, the impugned decree and judgment would stand. In the result, this appeal is dismissed, however without any order as to costs. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/3005 AS33/98 -: 6 :- Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = A.S.No.33 of 1998-C = = = = = = = = = = = = = = = = = Judgment 24th May, 2011.