IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 WP(C).No. 31547 of 2009(O) -------------------------- OS.NO.107/2005 of SUB COURT,KATTAPPANA .................... PETITIONERS: --------------- 1. ANNIE, W/O. LATE THOMAS JOSEPH, CHOORAKKATTU VEEDU, NARIAMPARA KARA, AYYAPPANCOIL VILLAGE, UDUMBANCHOLA TALUK. 2. SENON, CHOORAKKATTU VEEDU, NARIAMPARA KARA, AYYAPPANCOIL VILLAGE, UDUMBANCHOLA TALUK. BY ADV. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH RESPONDENT(S): --------------- THARAWINES, REPRESENTED BY ITS MANAGING PARTNER, SRI. GEORGE JOSEPH, CHOORAKKATTU VEEDU, NARIAMPARA KARA, AYYAPPANCOIL VILLAGE, UDUMBANCHOLA TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 31547 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 5th November, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following relief: “To issue a writ of certiorari or other appropriate writ, order or direction quashing Exhibit P7.” 2. Petitioners are the defendants 1 and 2 in O.S.No.107 of 2005 on the file of the Sub Court, Kattappana. The above suit was filed by the respondent, a firm, for a declaration that a licence issued to the firm is its property. P1 is the copy of the plaint and P3, copy of the partnership deed of the firm. Resisting the suit claim, these defendants with two others had filed a written statement, which was later amended for incorporating a counter claim. 7th defendant in the suit, who, according to the plaintiff firm, a previous partner, had been set ex parte in the suit. Though he had moved an application for setting aside the order declaring him ex parte, along with written statement, seeking condonation of delay in moving such application, delay not being condoned his application for setting aside the ex parte was rejected. Pursuant to the orders thereof, the 7th defendant had passed away. These petitioners along with defendants 3 and 4, on the death of the 7th defendant, moved P5 application for W.P.C.No.31547/09 - 2 - impleadment of the legal representatives of the 7th defendant as additional defendants in the suit. Plaintiff objected that application filing P6 objections. The learned Sub Judge, after hearing both sides, dismissed P5 application vide P7 order. Propriety and correctness of P7 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioners. For an effective and proper adjudication of the disputes involved in the suit, the impleadment of the legal representatives of the deceased 7th defendant, who was a partner in the plaintiff firm, as additional defendants in the suit is necessary and the court below went wrong in turning down P5 application moved by defendants 1 to 4 is the submission of the learned counsel for the petitioners. Even assuming that the legal representatives of the 7th defendant are not necessary parties, at least they are proper parties in the suit to have an effective adjudication of the suit claim as well as the counter claim raised by above defendants 1 to 4, according to the learned counsel. Plaintiff is the dominus litis of the suit. The allegations in P1 plaint and also P2 amendment to such plaint would indicate that the 7th defendant, who was a partner earlier ceased to be so on the W.P.C.No.31547/09 - 3 - reconstitution of the firm from 1994. 7th defendant had been set ex parte in the suit. His application moved for setting aside the order declaring him ex parte after condoning the delay, had been declined by the court, and the order thereof has become final and conclusive. Defendants 1 to 4, who have raised a counter claim in the suit, which, at the most can be canvassed only against the plaintiff, but, not against any of the codefendants in the suit, cannot seek for impleadment of the legal representatives of the 7th defendant in the suit filed by the respondent/plaintiff firm, especially, in the present case, where the 7th defendant had been declared ex parte earlier. Order passed against the 7th defendant declaring him ex parte is binding on his legal representatives as well and, they cannot have any independent right to come on record to putforth any challenge to resist the suit claim. There was no merit in P5 application moved by the defendants 1 to 4 for impleadment of the legal representatives of the 7th defendant as additional defendants in the suit, and it was rightly and correctly declined by the learned Sub Judge under P7 order. Writ Petition lacks merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE W.P.C.No.31547/09 - 4 -