IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 WP(C).No. 36580 of 2009(O) -------------------------- OS.107/2005 of SUB COURT,KATTAPPANA .................... PETITIONER(S): --------------- 1. SALI, W/O.ANTONY ITTIRA, VAZHAPPALLI HOUSE, NORTH PARAVUR KARA, NORTH PARAVUR VILLAGE, ERNAKULAM. 2. JIFIN D/O. ANTONY ITTIRA, IN DO...DO.. 3. GLADIN , S/O. DO..DO.. 4. GEORGE , S/O. DO..DO... 5. JIJI ROSE, D/O. DO..IN DO... BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT(S): --------------- TARA WINES, REPRESENTED BY JOSEPH CHOORAKKATTU HOUSE, NARIYAMPARA KARA AYYAPPANCOIL VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.36580 OF 2009 () ----------------------------------- Dated this the 17th day of December, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records relating to Ext.P5 order from the file of the Subordinate Judge's Court, Kattappana, and set aside the same by the issue of a writ of certiorari or any other appropriate writ or order. ii. to allow Exts.P3 and P4 applications filed by the petitioners. iii. to order stay of all proceedings in O.S.No.107 of 2005 on the file of the Subordinate Judge's Court, Kattappana, pending disposal of the above writ petition. 2. Petitioners are the legal heirs of the additional 7th defendant (late) in O.S.No.107 of 2005 on the file of the Sub Court, Kattappana. The 1st petitioner is the wife and WPC.36580/09 2 petitioners 2 to 5 are the children of additional 7th defendant (late). The respondent has filed the above suit seeking a declaration that an FL. III licence issued for conducting business of a foreign liquor shop is its property, a registered firm. In that suit, the additional 7th defendant got impleaded contending that funds were provided by him as a partner of the firm for getting the licence, and in fact, it is his property. Since he did not file the written statement in time, he was set ex parte. Later, additional 7th defendant moved an application for setting aside the ex parte decree along with his written statement. The application was disallowed. Admittedly, the challenge against the order by way of writ petition before this Court was also unsuccessful. Pursuant thereto, the 7th defendant filed a Special Leave Petition before the apex court questioning the correctness and propriety of the judgment rendered by this Court confirming the order passed by the learned Sub Judge declining the request made for setting aside the order declaring that defendant ex parte and accepting of his written statement. Though notice was WPC.36580/09 3 ordered on the SLP, later, it was recalled when it was brought to the notice of the apex court that as on the date of filing of that petition, the 7th defendant was no more. Ext.P2 is the order passed by the apex court. While dismissing the SLP, the apex court has made an observation that such dismissal “will not affect the rights of the legal heirs, if any, to proceed in the matter”. Pursuant thereto, interpreting that observation as conferring right on the petitioners to come on record and agitate their rights in the present suit, the legal heirs of the 7th defendant moved an application under Order I Rule 10 (2) of the CPC seeking their impleadment as additional defendants in the suit. Ext.P5 is the copy of that order. Propriety and correctness of Ext.P5 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. The learned counsel submitted that the partnership deed, a copy of which is produced as Ext.P1, confers right on the legal heirs of WPC.36580/09 4 the deceased partner to get all the rights of their predecessor in the firm, and so much so, their impleadment as additional defendants in the suit is essential to protract their lawful interest in the firm. The order passed against their predecessor 7th defendant, it is submitted, in case they are deprived of an opportunity to come forward and get themselves impleaded as additional defendants may cause prejudice to them in view of the operation of Order XXII Rule 4 (4) of the CPC. They have independent right over the firm otherwise than as legal representatives over the estate left behind by their predecessor 7th defendant, and so much so, they are entitled to come on record as additional defendants in the suit is the further submission of the learned counsel. Perusing the impugned order (Ext.P5) with reference to the submissions made by the learned counsel in the backdrop of Ext.P2 order passed by the apex court, I find no interference with the order passed by the learned Sub Judge declining the impleadment of the petitioners is warranted invoking the visitorial jurisdiction vested with this Court. The dismissal of WPC.36580/09 5 the application (Ext.P5) by the court below, I make it clear will not affect the right of the petitioners, if any, in seeking appropriate remedies to protect their lawful interest, as provided by law, in the appropriate forum. However, in the present suit, where the respondent/plaintiff has filed the suit nearly four years ago, seeking the reliefs confining to a declaration that the licence issued for conducting a foreign liquor shop is the property of the firm, I find that whatever be the rights the petitioners claim as legal heirs of the additional 7th defendant or otherwise, independent of such status, under Ext.P1 partnership deed, no adjudication thereof is called for where the previous orders passed against the 7th defendant declaring him ex parte declining to accept his written statement has become final and conclusive. Writ petition is closed with the above above observations. S.S.SATHEESACHANDRAN JUDGE prp