IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 WP(C).No.35496 of 2008 (A) ---------------------------------- IA.64/2008 IN OS.69/2007 of SUB COURT, PALA .................... PETITIONERS: ----------------- 1. E.A.SEBASTIAN, @ APPU, 69 YEARS R/AT.EDATTU HOUSE, PALA KARA, MEENACHIL TALUK. 2. GEETHA GIJU, W/O.GIJU , AIYTHAMATTATHIL CHIRAKKADAVU VILLAGE, KANJIRAPPALLY. BY ADV. SRI.P.C.HARIDAS RESPONDENTS: ------------------ 1. M/S.RAJADHANI HOTEL, REP. BY ITS MANAGING PARTNER, KISHORE SEBASTIAN. 2. KISHORE SEBASTIAN, AGED 45 YEARS, S/O.E.A.SEBASTIAN, R/AT.EDATTU HOUSE, PALA KARA, MEENACHIL TALUK. 3. SIBY SEBASTIAN, 45 YEARS, S/O.E.A. SEBASTIAN, R/AT.EDATTU HOUSE, PALA KARA MEENACHIL TALUK. 4. SURESH SEBASTIAN, AGED 38 YEARS DO.DO. 5. ANNAKUTTY SEBASTIAN, W/O.E.A.SEBASTIAN, DO.DO. 6. LOVELY XAVIOUR, 41 YEARS, W/O.SUNNY DO.DO. WP(C).No.35496 of 2008 (A) -2- 7. RAJAN AUGUSTINE, 43 YEARS S/O.AUGUSTHY, MADACKAL HOUSE, ALANADU KARA, BHARANAGANAM VILLAGE. 8. SONY THOMAS, 9 YEARS, R/AT.RAJADHANI HOTEL, FROM MADACKAL HOUSE, ALANADU KARA, BHARANAGANAM VILLAGE 9. EXCISE INSPECTOR, PALA 10. ASSISTANT EXCISE COMMISSIONER, KOTTAYAM. 11. STATE OF KERALA, REP. BY DISTRICT COLLECTOR, KOTTAYAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.35496 of 2008 ------------------------------------------------ Dated this the 2nd day of December, 2008 JUDGMENT Petitioners are plaintiffs in O.S.69/07 on the file of the Sub Court, Pala. They assail in this Writ Petition Ext.P5 order passed by the Sub Judge on Ext.P3 commission application (I.A.64/08) filed by them in the said suit dismissing the said application and seek for a direction to the Sub Judge to consider Ext.P3 afresh and to allow the same. 2. The suit is instituted by the plaintiffs for a declaration that the business carried on under the name and style of the first respondent viz. Rajadhani Hotel belongs absolutely to the first plaintiff and that the other parties to the partnership deed are only name lendors; to permit the first plaintiff to recover possession and management of the said hotel from defendants 2 to 8 and for a W. P. C. No.35496 of 2008 -2- prohibitory injunction restraining defendants 2 to 6 or anybody under them from alienating the scheduled property or the business therein to defendants 7 and 8 or to any other person. 3. According to the plaintiffs, the first defendant/firm was constituted in the year 1977; that defendants 2 and 3 are the present joint Managing Partners of the firm and defendants 4 to 6 are the other partners thereof; that defendants 7 and 8 are at present conducting the business as licensees; that defendants 9 and 10 are excise officials and 11th defendant is the Kerala State impleaded for the purpose of obtaining injunction restraining defendants 8 and 10 from renewing the liquor permit issued to Hotel Rajadhani/the first defendant. Defendants 2 to 4 are children of the first plaintiff; the 5th defendant is the wife of the first plaintiff and the 6th defendant is his W. P. C. No.35496 of 2008 -3- son-in-law. His case is that the first defendant is a firm of which the present partners are defendants 2 to 6 and that the firm was originally constituted by the second defendant and three others making use of his funds. It is in the said suit that the Commission application was filed by the plaintiffs as I.A.64/08 to ascertain inter alia the number of rooms in the hotel; as to who constructed it; as to what was its cost at the time of construction and what will be cost if it is constructed now; the details of the furniture therein and its cost; the probable sale consideration that can be derived in open market if the hotel is sold at present; to ascertain as to who is running the said hotel now and what is its monthly rent and the probable expense that might have been incurred to start a bar hotel in 1977. The application was dismissed by the Sub Judge vide Ext.P5 W. P. C. No.35496 of 2008 -4- order and it is the correctness of the said order that is being assailed in this Writ Petition. 4. On a perusal of the matters asked for to be ascertained, what the Commissioner can ascertain now is certain facts only namely as to the number of rooms in the hotel and the details of furniture and other assets in the hotel and nothing else. It is not for the Commissioner to assess the other details. If the petitioners want they have to adduce evidence to establish all that. The court below has observed that even as per the plaint averments, the first defendant/firm is running the hotel and there is no necessity to ascertain as to who is conducting the hotel business by deputing a Commissioner. As rightly observed by the court below, Commissioner's Report is not at all necessary for a disposal of the suit and a report if any W. P. C. No.35496 of 2008 -5- filed by the Commissioner assessing the details asked for that will be having no value also as it is not for the Commissioner to decide the facts in issue in the suit by submitting report. The burden is very heavy on the plaintiffs/petitioners to establish the case they have set up especially when the admitted case is that the defendants 2 to 6 who constitute the first defendant firm are running the hotel. 5. This Writ Petition, in the circumstances is devoid of merit and I dismiss this Writ Petition confirming Ext.P5 order passed by the court below. K.P.BALACHANDRAN, JUDGE kns/-