IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 RSA.No. 172 of 2006(D) -------------------------- AS.182/2004 of DISTRICT COURT, THRISSUR OS.35/2003 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT/RESPONDENT/PLAINTIFF: ------------------------------------------ C. ARAVINDAKSHA MENON, AGED 69, BUSINESS, S/O. CHUNGATH LAKSHMIKUTTY AMMA, METHALA VILLAGE, ANJUPALAM DESOM,KODUNGALLUR TALUK BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN SRI.G.JAYASANKAR RESPONDENTS: APPELLANT/DEFENDANT: ---------------------------------------------- RADHIKA MENON, AGED ABOUT 41, BUSINESS, D/O. AATTUPURATHU RAMAN MENON, MADAYIKONAM VILLAGE, THALIYAKONAM DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.T.M.CHANDRAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. --------------------------------------------------------- R.S.A. No 172 of 2006 ---------------------------------------------------------- Dated this the 19th June 2008 JUDGMENT The plaintiff in O.S. No 35 of 2003 on the file of the Sub Court, Irinjalakuda is the appellant he being aggrieved by the reversal of the decree granted in his favour by the trial court on appeal filed by the respondent before the first appellate court. 2. The suit, O.S. No 35 of 2003, was filed by the appellant for a declaration that Parasakthi Gas Agency belongs jointly to himself and the defendant in partnership and for restraining the defendant by a decree of permanent prohibitory injunction from causing any sort of obstruction to the plaintiff in participating or partaking in the business activities of the said firm. The existence of partnership was disputed by the respondent-defendant. It goes without saying that such a suit is not maintainable as partnership which is disputed by the respondent- defendant cannot be thrust upon her. However, the trial court decreed the suit. The first appellate court allowed the appeal, set aside the decree and judgment of the trial court and dismissed the suit. It is aggrieved by the said dismissal of the suit by the first appellate court RSA 172/06 2 finding that no partnership exists between the appellant-plaintiff and the respondent-defendant that this appeal is filed by the plaintiff. 3. It is contended by learned counsel for the appellant that the first appellate court has entered into a finding to the effect that no partnership exists between the appellant-plaintiff and the respondent- defendant and that the dismissal of the suit in that fashion has deprived the appellant of an opportunity to file a suit for declaration of partnership and to pray for its dissolution and for settlement of accounts. Counsel for the respondent contends that a considered finding has been entered into by the first appellate court to the effect that Ext A1 partnership deed is not the one executed by the respondent and that therefore the said finding has to be maintained as that is a finding entered into on the evidence in the case. All the same, counsel for the respondent has no quarrel on the position that a suit for declaration of partnership alone will not lie. If at all, the other reliefs prayed for by the appellant-plaintiff in the suit is not something which can go along with the prayer for declaration, the suit can only be considered as one for declaration of existence of partnership as per Ext A1 deed with no other relief prayed for. A finding entered into in such a suit to the effect that the partnership is RSA 172/06 3 not in existence cannot foreclose the rights of the plaintiff to contend that there exists a partnership and that the said partnership has to be dissolved. In the circumstances, without prejudice to the rights of the plaintiff to institute appropriate suit for declaration of existence of partnership under Ext A1 and for its dissolution, if so advised, this R.S.A deserves to be dismissed as there exists no substantial question of law to be answered by this court as attempted to be formulated in the memorandum of appeal. 4. In the result, I dismiss this R.S.A in limini refusing admission without prejudice to the rights of the appellant-plaintiff to institute appropriate suit for declaration of partnership and for its dissolution, if so advised, without entering into any finding as to whether Ext A1 is genuine or whether it gives rise to a partnership. The finding of the court below on that aspect shall not be a bar to agitate the claim of the appellant afresh. Sd/- K.P. BALACHANDRAN Judge 19/06/2008 en [true copy]