IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 WP(C).No. 12374 of 2010(O) --------------------------------- OS.222/1996 of II ADDL.SUB COURT,KOZHIKODE .................... PETITIONER(S): ----------------------- ARUN CHANDRA C.SHAH, S/O. CHATRABHUJ SHAH, RESIDING AT ''ANAND GARDEN'', POST KOTTOLI, NELLICODE AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT. BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE BY ADV. SRI.R.RAMADAS RESPONDENT(S): ------------------------ 1. MRADUL KUMAR S/SHAH, S/O. SWAROOP CHAND ANANDJI SHAH, ''ANAND GARDEN'', POST KOTTOOLI, NELLICODE AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT. 2. JITHESH KUMAR S.SHAH, S/O. LATE SHANTILAL C.SHAH, ''ANAND GARDEN'', POST KOTTOOLI, NELLICODE AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT. 3. MRS. SHABANA S.SHAH, D/O. THALAKSHI SHAH, ''ANAND GARDEN'', POST KOTTOOLI, NELLICODE AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT. 4. MRS. BEENA V.SHAH, S/O. LATE VINESH KUMAR S.SHAH, ''ANAND GARDEN'', POST KOTTOOLI, NELLICODE AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT. W.P.(C) NO.12374/2010 5. VYSHALI V.SHAH, D/O. VINESH KUMAR S.SHAH, ''ANAND GARDEN'', POST KOTTOOLI, NELLICODE AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT. 6. DARSHAN V.SHAH, S/O. VINESH KUMAR S.SHAH, NELLICODE AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- WP(C) No.12374 of 2010 ------------------------------------- Dated 8th April 2010 Judgment In this Writ Petition filed under Article 227 of the Constitution of India, the relief sought for by the petitioner is as follows : “Direct the learned 2nd Additional Subordinate Judge, Kozhikode to record the settlement arrived at between the parties in the suit OS 222/1996 as evidenced by Exts.P6 and P7 and to dispose of the suit OS No.222/1996 as expeditiously as possible, recording the settlement, without insisting the presence of the 1st respondent in the Court.” 2. The petitioner, as plaintiff, instituted two suits, as OS Nos.222/1996 and 395/1994 before the Sub Court, Kozhikode. The respondents herein were the defendants in the suits. OS No.222/1996 was filed for dissolution of partnership firm, accounting and injunction and OS No.395/1994 was filed praying for a declaration that the expulsion of the petitioner from the partnership firm is invalid and unenforceable as against the petitioner. Both WPC 12374/10 2 the suits were decreed by the Court below as per Judgment dated 31.10.1997, a copy of which is produced as Ext.P1. The court below decreed OS No.222/1996 and a preliminary decree was passed dissolving the firm with effect from 15.02.1996. Various other details are also given in the Petition, which are not relevant for the present purpose. It appears that when the final decree application was pending, the parties decided to settle their disputes and entered into a compromise memorandum. Accordingly, such a compromise was entered into and it was signed by the parties to the suit. While so, it appears that the petitioner filed IA No.695/10 for advancing the hearing and the second respondent filed a statement, stating that the first respondent was incapable to look after his affairs and also praying that a guardian may be appointed for that purpose. Copies of the IA and statement are Exts.P2 and P3. Later, the second respondent also filed IA No.850/10 for withdrawing the averments made against the first respondent in the statement dated 23.09.2009. In IA WPC 12374/10 3 No.850/10, the court below directed the first respondent to appear before the Court on 21.05.2010. The learned counsel for the petitioner submitted that since the dispute between the parties was already settled and a memorandum of understanding has been signed by the parties, and the same was brought to the notice of the court below, there is no justification for ordering personal appearance of the first respondent. The learned counsel also pointed out that throughout the proceedings, the first respondent's counsel had no case that the first respondent was incapable of looking after his affairs. Since the parties have already settled their disputes, there is no reason why the Court should not accept the same unless it is found to be not in accordance with law. Once a compromise is filed, the issue regarding the capacity of the 1st respondent to look after the affairs, does not survive. Further, as pointed out by the learned counsel, the first respondent, throughout the proceedings had not raised the issue regarding incapability of the first WPC 12374/10 4 respondent. It is felt that the order passed by the Court below cannot be sustained. Accordingly, this Petition is allowed. The Court below is directed to dispose of OS No.222/1996 pending before it in accordance with law as expeditiously as possible, considering the settlement arrived at between the parties as evidenced by Exts.P6 and P7 without insisting for the personal appearance of the 1st respondent. P.BHAVADASAN, JUDGE sta WPC 12374/10 5