IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 WP(C).No. 23502 of 2010(O) -------------------------- AGAINST THE ORDER IN IA.4766/10 IN OS.685/2006 of PRL.SUB COURT,THRISSUR .................... PETITIONER(S): --------------- 1. "C.L.KURIAN AND BROTHERS", RICE BAZAR, THRISSUR REPRESENTED BY ITS MANAGING PARTNER SIJO GEORGE, S/O.C.L.GEORGE, CHANDY HOUSE, ATTORE, KUTTOOR P.O., THRISSUR DISTRICT. 2. C.I.CICILY, AGED 50 YEARS, W/O.SIMON C.L., RESIDING AT CHANDY HOUSE, ATTORE, KUTTOOR P.O., THRISSUR DISTRICT. 3. SIJO GEORGE, S/O.C.L.GEORGE, AGED 35 YEARS, RESIDING AT CHANDY HOUSE, ATTORE, KUTTOOR P.O., THRISSUR DISTRICT. BY ADV. SRI.P.HARIDAS SMT.S.SIKKY RESPONDENT: --------------- CICILY KURIAN, AGED 66 YEARS, W/O.LATE C.L.KURIAN, RESIDING AT CHANDY HOUSE, ATTORE, KUTTOOR P.O., THRISSUR DISTRICT-682904 ADV. SRI.N.P.SAMUEL SRI.T.K.CHINNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23502 of 2010 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : COPY OF THE TRANSCRIBED ORDER DTD. 5TH APRIL, 2010 IN I.A.3880/2006 EXHIBIT P1(a): COPY OF THE I.A.NO.2880/2006 FILED BY RESPONDENT EXHIBIT P1(b): COPY OF the OBJECTION FILED BY THE PETITIONERS IN I.A.3880/2006 EXHIBIT P1(c): COPY OF THE REPORT OF the RECEIVER DTD 07.06.2010 EXHIBIT P2 : JUDGMENT IN W.P.C.17392/2010 DTD. 4th JUNE, 2010 EXHIBIT P3 : CARBON COPY OF THE ORDER DISMISSING THE I.A.4766/2010 DTD. 8th JULY, 2010 BY THE LEARNED SUB JUDGE EXHIBIT P4 : JUDGMENT IN W.P.C.21100/2010 OF THIS HONOURABLE COURT. RESPONDENT EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.23502 of 2010 --------------------------------------- Dated this 14th day of September, 2010 JUDGMENT Petitioner No.1 is a partnership firm in which petitioner Nos.2 and 3 and respondent are partners. Respondent filed suit for dissolution of the partnership firm and other reliefs. Petitioners appeared but, were set ex parte. That order was later set aside. Again petitioner were set ex parte. To set aside that ex parte order petitioners filed I.A.No.4766 of 2010 (in O.S.No.685 of 2006 of the court of learned Principal Sub Judge, Thrissur). That application was opposed by the respondent. Learned Principal Sub Jude vide Ext.P3, order has dismissed the application. Hence this writ petition in challenge of that order. Learned counsel for petitioners contend that in spite of showing good cause, application has been dismissed which is erroneous. If at all no good cause was shown it was well within the power of learned Principal Sub Jude to exercise his discretion to allow petitioners take part in the proceeding from the day they subsequently appeared in the court. Learned counsel placed reliance on the decisions in Arjun Singh Vs. Mohindra Kumar and Ors. (AIR 1964 SC 993), Plantation Corporation of Kerala Ltd Vs. Hussain (1998(1) KLT 1008) and Vijaya W.P.C.No.23502 of 2010 : 2 : Kumar Madan and Ors. Vs. R. N. Gupta Technical Education Society and Ors. (2002(5) SCC 30). Learned counsel for respondent argues that there was no good cause shown by petitioners for their absence in court and hence the ex parte order should stand. No evidence has also been adduced by petitioners. Hence there is no reason to interfere with the impugned order. 2. Petitioners were set ex parte on 05-04-2010. The same day, learned Principal Sub Judge allowed I.A.No.3880 of 2006 as per which a receiver was appointed in the case. Ext.P1, order states: “official receiver is appointed to take possession of the first defendant firm and to file report”. But, it is seen from a true photocopy of the order issued from the court of learned Principal Sub Judge that the order read “official receiver is appointed to take possession of the first defendant firm and to collect profits. Intimate the order to the receiver. File report on 17-05-2010”. 3. Now I am only concerned with the question whether learned Principal Sub Judge was correct in passing Ext.P3, order dismissing I.A.No.4766 of 2010. Though wrongly described as one under Order XXI Rule 106 of the Code of Civil Procedure (for short, “the Code”) the application was one that filed under Order IX Rule 7 of the Code. Under that provision where a defendant is set ex parte and if he appears in the subsequent stage of the proceedings and assigns “good cause” for his previous non appearance, he may, W.P.C.No.23502 of 2010 : 3 : upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. The Division Bench of this court in Plantation Corporation of Kerala Ltd Vs. Hussain (supra) has stated that when good cause shown reopening of the case is mandatory and when good cause is not shown, it is discretionary and the court may exercise its discretion depending on the facts of the case. The Supreme Court has drawn a distinction between 'sufficient cause' and 'good cause' and held that “good cause” stand on a lesser decree than “sufficient cause”. In the present case petitioners stated that their counsel had not informed them about development of the case and he did not conduct the case properly which happened in their being set ex parte. 4. Admittedly, the suit is still pending and learned Principal Sub Judge has only set petitioners ex parte. Having regard to the facts and circumstances of the case I do not find reason to disbelieve the statement of petitioners that their counsel had not intimated them about the development in the case and that resulted in their being set ex parte. In a suit of this nature where dissolution of partnership firm and consequential reliefs are claimed it is only just and proper that petitioners are given opportunity to contest the case unless contumacious negligence is shown on their part. I was not able to find any such contumacious W.P.C.No.23502 of 2010 : 4 : negligence on the part of petitioners. It follows that petitioners ought to have given an opportunity to contest the case. I am unable to upheld Ext.P3, order passed by the learned Principal Sub Judge. 5. It is contended by learned counsel for petitioners that order appointing receiver subsequent to petitioners being set ex parte is not correct. However, it is not necessary for me to go into that question at this stage since the order appointing receiver is appealable under Order 43 Rule 1(s) of the Code. If petitioners have any grievance in the matter of appointment of the receiver they must either seek appropriate remedy in the court below or challenge the order as provided under law. Resultantly this writ petition is allowed and Ext.P3, order is set aside. I.A.No.4766 of 2010 is allowed and the ex parte order against petitioners is set aside. Learned Principal Sub Judge shall proceed with the suit as provided under law. (THOMAS P JOSEPH, JUDGE) Sbna/- True Copy P.A to Judge