IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 32053 of 2008(N) --------------------------------------- (OS.NO.626/2005 OF MUNSIFF'S COURT,KOZHIKODE-II) .................... PETITIONERS: --------------------- 1. T.H. RAJAN, S/O.T. NARAYANAN, AGED 64, RESIDING AT NO.18, STATE BANK COLONY, CHEVAYUR AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 2. A.P. PREMARAJAN, S/O. KUNHIKANNAN, AGED 55, RESIDING AT VADAKARA THURUTHIYIL, PALAYANADU AMSOM VATAKARA TALUK. 3. A.P. VALSAN, S/O. KUNHIKANNA, AGED 50, VADAKARA THURUTHIYIL, PALAYANADU AMSOM, VATAKARA TALUK. BY ADVS. MR.B.G.BHASKAR, MR.BIJU ABRAHAM. RESPONDENTS: ------------------------ 1. M/S. ASHOK TALKIES, A REGD. PARTNERSHIP FIRM, REPRESENTED BY ITS MANAGING PARTNER, SRI. JAYADASAN. 2. T. JAYADASAN, S/O.T. NARAYANAN, AGED 61 YEARS, AMULYA, PUDUPPANAM AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 3. T. CHANDRAN, S/O.T. NARAYANAN, AGED 56 YEARS, AMULYA, PUDUPANAM AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. W.P.(C). NO.32053/2008-N: 4. T. SURENDRAN, S/O. T. NARAYANAN, AGED 53 YEARS, AMULYA, PUDUPANAM AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 5. M/S. T.K. MENON AND COMPANY, CHARTERED ACCOUNTANTS, CHALAPPURAM, CALICUT-2, KASABA AMSOM AND DESOM, KOZHIKODE TALUK AND DISTRICT. R1 TO R4 BY MR.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE. MR.R.SURAJ KUMAR, SMT.GEETHA P.MENON, R5 BY ADV. MR.R.RATHEESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2010,THE COURT ON 23/03/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.32053/2008-N: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. 626/05 ON THE FILE OF THE MUNSIFF COURT, KOZHIKKODE-II. EXT.P.2: COPY OF THE WRITTEN STATEMENT OF DEFENDANTS 1 TO 3 IN O.S. 626/2005 ON THE FILE OF MUNSIFF COURT, KOZHIKKODE-II. EXT.P.3: COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A. 2492/2006 DTD. 22/09/2006 IN O.S. 626/2005 ON THE FILES OF MUNSIFF COURT-II, KOZHIKKODE. EXT.P.4: COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANTS IN I.A. 2492/2006 IN O.S. 626/2005 ON THE FILES OF MUNSIFF COURT-II, KOZHIKKODE. EXT.P.5: COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A. 2493/2006 DTD. 22/09/06 IN O.S. 626/05 ON THE FILE OF THE MUNSIFF COURT II KOZHIKKODE. EXT.P.6: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 4TH DEFENDANT IN I.A. 2493/2006 IN O.S. 626/2005 ON THE FILE OF MUNSIFF COURT II, KOZHIKKODE. EXT.P.7: COPY OF THE AFFIDAVIT FILED BY THE PLAINTIFFS IN SUPPORT OF THE I.A. 1454/08 DTD. 27/03/08 IN O.S. 626/05 ON THE FILE OF THE MUNSIFF COURT II, KOZHIKKODE. EXT.P.8: COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANTS IN I.A. 1454/2008 IN O.S. 626/2005 ON THE FILE OF MUNSIFF COURT II, KOZHIKKODE. EXT.P.9: COPY OF THE ORDER DTD. 03/09/2008 IN I.A. NO. 1454/2008 IN O.S. 626/2005 ON THE FILE OF THE MUNSIFF COURT, KOZHIKKODE II. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 32053 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2010. JUDGMENT Aggrieved by Ext.P9 order passed by the Principal Munsiff's court-II, Kozhikode, the respondents before the court below have come up with this petition under Article 227 of the Constitution of India. 2. O.S. 626 of 2005 was instituted before the Munsiff's Court, Kozhikode by the respondents herein seeking a decree for prohibitory injunction from auditing the accounts of the first respondent firm consisting of three cinema theaters. Copy of the plaint is produced as Ext.P1. The petitioners, who are defendants 1 to 3 entered appearance and contested the suit. It is contended by them that in the year 2002 two out of the three theaters and some other business concerns as well as other properties were allotted to the share of the defendants. Since the defendants are in absolute possession and enjoyment of the two theaters, they are WPC.32053/08. 2 entitled to appoint their own auditors of their choice. Copy of the written statement is produced as Ext.P2. Thereafter the plaintiffs filed I.A. 2492 of 2006 seeking permission to serve interrogatories on the defendants. The defendants filed a counter pointing out that the interrogatories are irrelevant as far as the issues involved in the suit are concerned. Copy of the counter filed by the petitioners is produced as Ext.P4. It is pointed out that a similar application has been filed against the fourth defendant also, which is produced as Ext.P5. The fourth respondent took objection to the said petitions. The complaint of the petitioners is that those applications were not taken up and no orders were passed. After two years, when the suit was ripe for trial, the plaintiffs filed I.A.4554 of 2008 to strike off the defense of the defendants accusing them of not having answered the interrogatories. According to the petitioners without applying the mind to the issues involved in the matter, the court below has passed Ext.P9 order. The said oder is assailed in this petition. WPC.32053/08. 3 3. Learned counsel appearing for the petitioners points out that the court below was not justified in directing the defendants to answer the interrogatories. It is also pointed out that the subsequent developments between the parties have rendered it unnecessary to answer the interrogatories. At the point of time when the interrogatories were served on the petitioners suits were pending regarding the matters covered by the interrogatories. Those suits have been decided and the decision will answer the quarries put forward by the plaintiffs. It is also pointed out that they cannot re-agitate the issue. 4. Learned counsel appearing for the respondents on the other hand pointed out that it is not as if the defense has been struck off. All that has been done is to ask the defendants to answer the interrogatories. Learned counsel went on to point out that the court below felt that the interrogatories are relevant and therefore the defendants had to answer the same. WPC.32053/08. 4 5. The order does not indicate that the defense has been struck off. Learned counsel for the petitioners points out that appeal has been preferred against the decision in the subsequent suits. The main contention raised by the learned counsel for the petitioners is that in the light of the subsequent developments and the decision in the various suits, it has become unnecessary to answer the interrogatories. It is also pointed out that the other contention is that the defendants have produced all documents, which are sufficient to answer the interrogatories. 6. If as a matter of fact appeals have been preferred against the decision in the subsequent suits, the court below needs to take that into notice before calling for answers to the interrogatories. If as a matter of fact, the issues involved in the present suit does not arise for consideration in the light of the decision in the subsequent suits, then answering of the interrogatories is an idle exercise. It is true that the interrogatories seek only WPC.32053/08. 5 answers to the alleged partnership set up by the defendants. Of course, almost all details regarding the alleged partnership has been sought for by the plaintiffs. Going through the interrogatories, which does not appear to contain anything offending or which does not call for an answer. But however, the fact remains that the petitioners have a case that all these questions have been answered in the decision in the subsequent suits and therefore there is no justification in directing the defendants to answer the interrogatories. In the light of the above facts, the impugned order is set aside and the matter is remanded to the court below for fresh consideration in accordance with law and in the light of what what has been stated above. P. BHAVADASAN, JUDGE sb.