IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 WP(C).No. 34439 of 2009(O) -------------------------------------- OS.343/2005 of ADDL.SUB COURT,PARAVUR .................... PETITIONER(S): 4TH DEFENDANT ------------------------ SEBI K.GEORGE,S/O.LATE K.M.GEORGE, KOCHUPARAMBIL HOUSE,VAZHITHALA P.O., THODUPUZHA,IDUKKI DISTRICT. BY ADVS.MR.V.M.KURIAN MR.MATHEW B. KURIAN MR.K.T.THOMAS RESPONDENT(S): PLAINTIFF ------------------------ THRESIAMMA RAPHAEL,W/O.LATE M.I.RAPHAEL, MANJOORAN HOUSE,MANJOORAN LANE, ALUVA EAST VILLAGE,ALUVA TALUK, PIN 683 101. R1 BY ADVS. MR.KURIAN ANTONY EDASSERY, SMT.ANN EMIL JOSEPH, MR.BOSE K.THACHIL, MR.M.RETHEESH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.34439 OF 2009 -------------------------------- Dated this the 14th day of December 2009 ---------------------------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) To issue appropriate writ, order or direction setting aside Ext.P3 order passed by the Additional Subordinate Judge's Court, North Parur. ii) To declare that the Additional Subordinate Judge's Court, North Parur is not having territorial jurisdiction to entertain and try the suit, O.S No.343/2005 pending before it. Iii) Grant such other and further reliefs as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case. 2. Petitioner is the 4th defendant in O.S No.343 of 2005 on the file of the Sub Court, North Parur. Suit is one for recovery of money, and the first respondent is the plaintiff in the above suit. Suit was laid by the first respondent/plaintiff to realise the sum paid by her towards discharge of the liability outstanding on a firm in which the petitioner and other defendants in the suit were partners. W.P.(C).No.34439 OF 2009 Page numbers On the security of equitable mortgage over the property of the plaintiff, the loan was advanced by a nationalised bank. When default was committed, the bank proceeded for recovery by sale of that mortgage property. Pursuant to proceedings before the Debt Recovery Tribunal, the counsel on both sides submit, the liabilities were settled and 1/3 of the outstanding liability was paid by the plaintiff to get release of the mortgage over her property. To get the amount that she had paid for releasing the mortgage property, the present suit was filed against the partners of the firm. In the written statement, among other contentions, nonimpleadment of the firm as one among the defendants and also the territorial jurisdiction of the court to entertain the suit was also raised. Without deciding the question relating to nonjoinder of parties and territorial jurisdiction, the trial proceeded. When the entire evidence in the case was over, the above two issues were pressed into service by the defendants. The learned Sub Judge after hearing both sides passed Ext.P3 order holding that the question of territorial jurisdiction need not be considered as the W.P.(C).No.34439 OF 2009 Page numbers defendants have participated in the trial and lead evidence submitting to the jurisdiction of the court. So far as the issue relating to nonjoinder of necessary party as to the nonimpleadment of the firm as one among the defendants on Ext.P3 order the learned Sub Judge sustaining that objection permitted the plaintiff to implead the firm. The finding entered by the court under Ext.P3 order on the question of territorial jurisdiction 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 counsel on both sides. At the time of hearing, the learned counsel for the respondent/plaintiff submitted that the firm was not impleaded for the reason at the time of institution it was not functioning. The firm, it is submitted, was functioning at Aluva within the jurisdiction of the court. Further submission of the counsel is that the property which belong to the plaintiff and mortgaged as security for the loan transaction with the bank is also situate within the jurisdiction of the court wherein the suit has been W.P.(C).No.34439 OF 2009 Page numbers instituted. So far as the question of territorial jurisdiction case of the defendant it is not proper and appropriate for this court to express any opinion at this stage on the basis of the pleadings of the parties which of course have not been produced in the writ petition. However, I do not find any impropriety in the finding entered by the learned Sub Judge since the trial has reached to an advance stage with both parties leading evidence, more particularly, the defendant submitting to the jurisdiction of the court in which the suit has been instituted. It cannot be stated that the court below was wrong in entering a finding that the issue which had been raised in the written statement has lost its significant. It is not a question of inherent lack of jurisdiction of the court but only a plea that the cause of action has not arisen within the jurisdiction of the court. That question has to be looked into without reference to various aspects in the nature of the disputes involved in the suit which I do not want to analyse, nor express any opinion, in the present writ petition. When all the partners are in the party array, which is not disputed, the nonimpleadment of the firm at the most has got only W.P.(C).No.34439 OF 2009 Page numbers innocuous value. Order 30 of the Code of Civil Procedure is an enabling provision permitting to sue in the name of the firm and that cannot be canvassed as a ground to say the firm is a necessary party where all partners are impleaded as defendants in the suit. Any opinion on that question has also now got only academic value in the present case as it has been brought to my notice, pursuant to Ext.P3 order passed the firm has been impleaded in the suit in which all partners have been made defendants. Writ petition lacks merit, and it is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P. A TO JUDGE vdv