IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 WP(C).No.37468 of 2008 (I) --------------------------------- OS.6/2006 of SUB COURT, HOSDRUG .................... PETITIONERS: ----------------- 1. C.V.GIRIJA, W/O. DR.A.V.SUKUMARAN, RESIDING AT ALAMIPALLI, KANHANGAD VILLAGE OF HOSDURG TALUK. 2. A.S.GEETHA, W/O. DR.C.V.JAYARAJAN, RESIDING AT DURGA HIGH SCHOOL ROAD KANHANGAD, HOSDURG VILLAGE OF HOSDURG TALUK. BY ADV. SRI.A.DINESH RAO RESPONDENTS: ----------------- 1. THOMAS VARGHESE, AGED 31 YEARS, S/O. VARGHESE, CHRISTIAN, BUSINESS, RESIDING AT VARAKKATTIL HOUSE, BELUR VILLAGE OF HOSDURG TALUK. 2. M.K.SEBASTIAN, S/O. LATE MATHEW, CHRISTIAN, BUSINESS, RESIDING AT PADIKKALATH HOUSE, K.D.C. CHEMMATTAMVAYAL, NEAR DISTRICT HOSPITAL, BALLA VILLAGE OF HOSDURG TALUK. 3. MALLIKA, W/O. N.R. RAJAN, HINDU, BUSINESS,RESIDING AT KOVVALPALLI, KANHANGAD VILLAGE OF HOSDURG TALUK. 4. CHITHRALEKHA, W/O. DR.HARIKRISHNAN, PRESENTLY RESIDING BEHIND KANHANGAD HEAD POST OFFICE, KRISHNA MANDIR ROAD, HOSDURG, HOSDURG VILLAGE OF HOSDURG TALUK. WP(C).No.37468 of 2008 (I) -2- 5. MAYA VARGHESE, W/O. M.K.SEBASTIAN, RESIDING AT PADIKKALATH HOUSE, K.D.C. CHEMMATTAMVAYAL, NEAR DISTRICT HOSPITAL, BALLA VILLAGE OF HOSDURG TALUK. 6. M/S.KANHANGAD MEDICAL AND ALLIED ENTERPRISES,REPRESENTED BY ITS MANAGING PARTNER, HAVING ITS OFFICE AT DISTRICT HOSPITAL, CHEMMATTAMVAYAL, BALLA VILLAGE OOF HOSDURG TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.37468 of 2008 ------------------------------------------------ Dated this the 18th day of December, 2008 JUDGMENT The petitioners are the defendants 1 and 2 in O.S.6/06 on the file of the Sub Court, Hosdrug. The suit has been instituted by the first respondent praying for a dissolution of the partnership business being carried on under the name and style M/s Kanhangad Medical and Allied Enterprises and directing defendants to render its accounts since 25/08/1997 and to pay him a sum of Rs.6 lakhs as his share from the assets of the partnership and also from the defendants personally. The suit was resisted by the defendants filing written statement contending inter alia that the suit is barred by Section 69 of the Indian Partnership Act and that the plaintiff has no locus standi to file the suit W. P. C. No.37468 of 2008 -2- as he is not a partner of the firm. Vide Ext.P7 petition filed in the court below defendants 1 to 7 prayed for issues 1 and 2 in the suit being heard as preliminary issues before proceeding with the trial of the suit. Issues 1 and 2 are the following:- (1) Whether the prayer in the suit is barred by Section 69 of the Indian Partnership Act. (2) Whether the plaintiff has locus standi to file the suit as he is alleged to be not a partner of the said firm. 2. The court below considered Ext.P7 application and passed order on 26/08/08 as follows:- “Defendants filing petitions to hear issue Nos.1 and 2. Allowed. So for hearing on issue Nos.1 and 2 - 22/09/08” W. P. C. No.37468 of 2008 -3- 3. On 22/09/08, the order minuted on the order sheet of the case, photostat copy of which is produced by the petitioner shows that the minuting by the Judge is as follows:- “22/09/08. Heard. Both issues involve question of fact and hence, can be decided only upon evidence. Hence, can be considered during trial. For steps to 10/10/08.”. 4. It is vehemently contended before me by the learned counsel for the petitioners/ defendants 1 and 2 that after passing order dt.26/08/08 on Ext.P7 application filed by defendants 1 to 7 in the said suit the court below has no jurisdiction to pass a subsequent order without entering finding on issues 1 and 2 and that the court is bound by its own order and cannot proceed to try the suit without entering findings on issues 1 and 2. The petitioners therefore, pray in this Writ W. P. C. No.37468 of 2008 -4- Petition to quash order dt.22/09/08 refusing to decide issue Nos.1 and 2 on merits before deciding other issues and to give a direction to the Sub Judge, Hosdrug to try and decide issue Nos. 1 and 2 before deciding other issues. 5. On the submissions made by counsel for the petitioners it appears that he is of the view that when the court passes an order posting the case for hearing on issues 1 and 2 the court cannot, but pass findings on issues 1 and 2 and without so entering findings on issues 1 and 2 the court is not having jurisdiction to proceed further with the suit. 6. It is worthy to note that in the instant case as per order dt.26/08/08 adjourning the case to 22/09/08 for hearing on issues 1 and 2 the court has heard arguments on 22/09/08. The court was not posting the W. P. C. No.37468 of 2008 -5- case for trial on issues 1 and 2 but was posting the case for hearing arguments on issues 1 and 2 on 22/09/08. The court was satisfied on hearing the submissions that both the issues involved questions of fact and hence, can be decided only upon evidence. It was therefore, that the court directed that those issues can be considered during trial. The petitioners cannot compel the court to conduct a trial first on issues 1 and 2 and thereafter to conduct trial in the suit with respect to other issues. Only if findings on any preliminary issue can be entered into without going to the merits of the case and the rival pleadings can it be heard as a preliminary issue and decision rendered. If it is a mixed question of fact and law, it can only be decided at trial. The course adopted by the Sub Judge is strictly in accordance W. P. C. No.37468 of 2008 -6- with accepted principles in trial of suits. 7. There is absolutely no merit in this Writ Petition and this Writ Petition is dismissed. K.P.BALACHANDRAN, JUDGE kns/-