IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 OP(C).NO. 2312 OF 2011(O) --------------------------------------- OS.979/2009 OF ADDL.SUB COURT, KOLLAM PETITIONER/APPLICANT/PLAINTIFF: ---------------------------------------------------- SHANIL S., AGED 42, SON OF LATE SUDHAKARAN, VELLARAMKUNNIL, THEKKEVILA CHERRY, ERAVIPURAM VILLAGE, MANAGING PARTNER, M/S.METRO ENGINEERING AND AUTOMOBILE WORKS, POLAYATHODE, KOLLAM. BY ADV. SRI.SREELAL N.WARRIER SRI.B.RAGHUNANDANAN RESPONDENT(S): DEFENDANTS ----------------------------------------------- 1. SOMAKUMARI, AGED 58 YEARS, W/O.SUGATHAN, AYALATHU VEEDU, KOTTAKKAKOM WARD, KOLLAM WEST VILLAGE, PARTNER, M/S.METRO ENGINEERING AND AUTOMBILE WORKS, POLAYATHODE, KOLLAM-691013. 2. REEJA SABU, AGED 37 YEARS, D/O.SOMAKUMARI, AYALATHU VEEDU, KOTTAKKAKOM WARD, KOLLAM WEST VILLAGE, PARTNER, M/S.METRO ENGINEERING AND AUTOMOBILE WORKS, POLAYATHODE, KOLLAM-691013. 3. BABURAJ, AGED 48 YEARS, BUSINESSMAN, SON OF GANGADHARAN, BABURAJ SADANAM, VADAKKEKARA MURI, ANGADIKKAL VILLAGE, ANGADIKKAL P.O., ADOOR TALUK, KOLLAM. 4. E.SHANAVAS KHAN, ADVOCATE AND SPECIAL RECIEVER IN I.P. NO.3/1100(ME), VISHNUMADOM, KACHERI DIVISION, KOLLAM WEST-691013. ADV. SRI.S.SANTHOSH KUMAR FOR R1 TO 3 SMT.P.LISSY JOSE. FOR R1 TO 3 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2312 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE PHOTOCOPY O THE MEDICAL CERTIFICATE DATED 29.6.2011 PRODUCED IN I.A. NO.2307 OF 2011 IN O.S. NO.979 OF 2009 OF ADDITIONAL SUB COURT, KOLLAM. EXHIBIT P2 CERTIFIED COPY OF APPLICATION FOR ADJOURNMENT I.A. NO.2307 OF 2011 IN O.S. NO.979 OF 2009 OF ADDITIONAL SUB COURT, KOLLAM. EXHIBIT P3 CERTIFIED COPY OF ORDER DATED 1.7.2011 IN I.A. NO.2307 OF 2011 IN O.S. NO.979 OF 2009 OF ADDITIONAL SUB COURT, KOLLAM. EXHIBIT P4 CERTIFIED COPY OF JUDGMENT DATED 1.7.2011 IN O.S. NO.979 OF 2009 OF ADDITIONAL SUB COURT, KOLLAM. EXHIBIT P5 CERTIFIED COPY OF JUDGMENT 9.12.2011 IN FAO NO.254 OF 2010 OF THE HONOURABLE HIGH COURT OF KERALA. EXHIBIT P6 TRUE COPY OF I.A. NO.2266 OF 2011 DATED 27.6.2011 IN O.S. NO.979 OF 2009 OF ADDITIONAL SUB COURT, KOLLAM. EXHIBIT P7 TRUE COPY OF I.A. NO.2339 OF 2011 DATED 1.7.2011 IN O.S. NO.979 OF 2009 OF ADDITIONAL SUB COURT, KOLLAM FOR RESTORATION UNDER ORDER IX RULE 9 OF THE CODE OF CIVIL PROCEDURE. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2312 of 2011 ==================================== Dated this the 19th day of July, 2011 J U D G M E N T The 4th respondent in this proceeding being the Receiver, notice to him is dispensed with. Respondents 1 to 3 appear through counsel. 2. Petitioner sued respondents 1 to 3 for a declaration regarding partnership and other reliefs. In the meantime parties had taken up the matter to this Court in various proceedings and there was a direction for time bound disposal of the case. Case was posted for trial in the list on 01.07.2011. That day, petitioner- plaintiff moved Ext.P2, application with Ext.P1, Medical Certificate seeking a week's time to record evidence on the ground that petitioner is undergoing treatment for renal colic with calculi. That application was dismissed by the learned Sub Judge as per Ext.P3, order dated 01.07.2011 observing that there is a direction from this Court in F.A.O. No.254 of 2010 to dispose of the case on or before 01.07.2011 and hence the application filed is without any bona fides and with intent to prolong the matter. Consequent to that, the suit itself was dismissed as seen from Ext.P4, judgment on the same day. Petitioner sought restoration of the suit as seen O.P(C) No.2312 of 2011 -: 2 :- from Ext.P7, application (I.A. No.2339 of 2011) stating reasons. In the meantime petitioner filed this Original Petition challenging Ext.P3, order and Ext.P4, judgment and alternatively to direct learned Sub Judge to dispose of Ext.P7, application and allow the same. Appropriate orders to maintain the preventive order of injunction which was in force in the suit is also prayed for. 3. Learned counsel submitted that I.A. No.2307 of 2011 was filed under Order XVII, Rule 1 of the Code of Civil Procedure requesting time for adjournment stating reasons. It is submitted that learned Sub Judge has not adverted to the merit of the application and dismissed the same solely for the reason that this Court directed time bound disposal of the suit. Learned counsel submitted that the application should not have been dealt with in that way and that learned Sub Judge was bound to say whether petitioner had sufficient reason for seeking adjournment. It is contended that in spite of the affidavit of petitioner supported by Medical Certificate no mention has been made whether reasons stated by petitioner is correct or not. It is also submitted that there was an order of injunction in force until disposal of the suit and that though an application for restoration of suit is pending, respondents 1 to 3 might transfer the property during the period O.P(C) No.2312 of 2011 -: 3 :- interregnum. Learned counsel for respondents 1 to 3 submitted that petitioner has already moved application for restoration (Ext.P7) and hence remedy of petitioner is to prosecute that application. 4. I have gone through Ext.P3, order and find that learned Sub Judge has not made any reference to the reasons stated by petitioner while requesting for adjournment. But learned Sub Judge has observed that the application is not supported by any bona fides. Considering the manner in which I propose to dispose of this Original Petition I do not think it necessary to go into the correctness of Ext.P3, order. 5. So far as apprehension of petitioner that respondents 1 to 3 might transfer the properties is concerned it is seen from Ext.P5, judgment in F.A.O. No.254 of 2010 that this Court has granted interim order restraining respondents 1 to 3 from alienating the properties mentioned in I.A. No.4115 of 2009 in O.S. No.979 of 2009. There could be an order in that line until Ext.P7, application for restoration of the suit is disposed of by the learned Sub Judge since I consider that such an order is necessary in the ends of justice. O.P(C) No.2312 of 2011 -: 4 :- Resultantly, this Original Petition is disposed of in the following lines: (a) Submission of respondents 1 to 3 that they shall file counter affidavit to Ext.P7, application (I.A. No.2339 of 2011 in O.S. No.979 of 2009) immediately is recorded. (b) Learned Sub Judge shall dispose of Ext.P7, application within forty five (45) days from the date of filing of the counter affidavit. (c) It is directed that respondents 1 to 3 shall not alienate the properties mentioned in I.A. No.4115 of 2009 in O.S. No.979 of 2009 until Ext.P7, application is disposed of by the learned Sub Judge. THOMAS P. JOSEPH, JUDGE. vsv