IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 FAO.No. 78 of 2010() -------------------- AGAINST THE ORDER DATED 17/02/2010 IN IA 8348/09 IN OS.1370/2009 of PRL.SUB COURT,THRISSUR .................... APPELLANTS/PETITIONERS/DEFENDANTS ----------------------------------------------------- 1. HASSANKUTTY P.K., AGED 43, KUNJAHAKKEDKUTTY, PUVALLOOR HOUSE, JAYA NAGAR, KRISHNAPURAM, OLLUKARA VILLAGE, THRISSUR TALUK. 2. RAMACHANDRAN P.S., S/O.SANKARANKUTTY, PULICKAL HOUSE, THOLUR, THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): PLAINTIFF ------------------------ VELAPPAN K.K., S/O.KOCHUKUTTAN, KULANGARAPARAMBIL HOUSE, PUZHAKAL, THRISSUR DISTRICT. ADV. SRI.M.K.DILEEP KUMAR FOR R THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 09/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ. ------------------------------------------ FAO. No. 78 of 2010 ------------------------------------------- Dated this the 9th day of April, 2010 J U D G M E N T Pius C. Kuriakose, J. Under challenge in this appeal filed by the defendants in a suit for dissolution of partnership and rendition of accounts is an interlocutory order of mandatory injunction passed by the learned Subordinate Judge commanding the appellants defendants to deliver the plaint schedule premises as well as all the articles found therein by the Advocate Commissioner subject to the final disposal of the case. As already indicated the suit is one for dissolution of a partnership in which the parties to the suit are partners. The suit is also for rendition of accounts by the defendants appellants who are the working partners of the firm. The premises where the partnership is carrying on business has been taken on lease in the name of the respondent plaintiff. The learned Subordinate Judge under the impugned order has found that the plaintiff respondent is the only investing partner who has invested money into the firm. The learned Sub Judge also found that the FAO.78/10 -2- leasehold rights over the premises is with the plaintiff respondent and it is his liability to pay rent to the owner of the building. The learned Sub Judge also noticed that on the terms of the partnership deed, the partnership was one at Will and has been duly dissolved. But what we notice is that Ext.A1 relied on by the learned Sub Judge for concluding that the plaintiff respondent is the only investing partner is only a photostat copy, regarding the genuineness of which serious dispute has been raised by the appellants defendants. The appellants defendants actually filed an application for calling upon the plaintiff respondent to produce the original of Ext.A1. Despite such application, the original of Ext.A1 is not forthcoming. So also, the claim of the plaintiff respondent that he alone has invested money in the partnership business is also disputed. In other words, even if the view of the learned Sub Judge that Ext.A1 is the partnership deed governing the partnership between the FAO.78/10 -3- parties is correct, then also before a decree formally declaring the partnership as dissolved and directing rendition of accounts is passed the issue as to what are the amounts invested into the firm and as to which is the document which governing the mutual relations between the partners will all have to be enquired into. According to us, on the pleadings raised by the parties, issues have arisen for trial. That being the position we do not think that it was proper on the part of the learned Sub Judge to have passed an order of temporary mandatory injunction even before the suit was tried. Sri.M.K.Dileepkumar, learned counsel for the respondent plaintiff submitted that on the terms of Ext.A3 lease deed it is the obligation of the respondent to pay monthly rent at the rate of Rs.20,000/- for the premises in question. Mr.Sreekumar, learned counsel for the appellant would quickly retort that it is the firm's obligation to pay rent. Responding to our query as to whether the appellant FAO.78/10 -4- who seems to be in physical control of the premises will be prepared to pay the monthly rent, he submitted that there will not be any difficulty for the same. It is agreed to by both sides that the Commissioner appointed by the court has submitted a detailed inventory of the available articles presently kept in the premises. Under these circumstances we are of the view that the impugned order can be interfered with and the FAO can be disposed of issuing the following directions. The impugned order directing the respondents in the IA to deliver the plaint schedule premises and the articles found therein to the respondent is set aside subject to the following conditions. 1) The appellant shall pay the monthly rent payable to the owner of the premises in question every month without fail and produce receipts issued by the owner before the court below. FAO.78/10 -5- 2. The appellant shall preserve all the articles reported by the Advocate Commissioner as detailed in the inventory submitted by him before the court below in their present condition till final disposal of the suit and an undertaking in that regard will be submitted by him before the court below on the day the court below reopens after mid-summer recess. 3. The learned Sub Judge is directed to special list the suit in the earliest available special list, try the same and dispose of the same at the earliest, at any rate it will be ensured that the suit is disposed of within three months of reopening of the court after mid-summer recess. Sri.G.Sreekumar requested that the appellants be permitted to account all the payments made by them towards rent for the building in the firm's account. This request is opposed by the learned counsel for the respondent. However, we permit the appellant to include FAO.78/10 -6- the payments made to the landlord towards rent in the accounts of the firm making it clear that such permission does not amount to any reflection by this court on the merits of the rival contentions on the question as to whether the firm has been dissolved. Needless to mention that the court below shall try the suit and take a decision in the suit on the basis of the evidence which comes on record without being influenced by any of the observations in the impugned order. PIUS C.KURIAKOSE, JUDGE C.K. ABDUL REHIM, JUDGE ksv/-