IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23558 of 2009(O)
1. K.SUDHI, AGED 39 YEARS,
... Petitioner
Vs
1. M/S.PERFETTI INDIA LIMITED A COMPANY,
... Respondent
For Petitioner :SRI.N.M.MADHU
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :17/09/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).Nos.23558 AND 25732 OF 2009
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Dated this the 17th day of September 2009
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JUDGMENT
These two writ petitions are filed in
respect of a suit O.S No. 358/2000 on the file of
the 2nd Additional Sub Court, Kozhikode. The above
suit admittedly was instituted by a firm for a
decree of prohibitory injunction, nearly nine years
ago. Subsequently the plaintiff moved an amendment
application so as to seek additional relief of
settlement of accounts and recovery of money. Case
canvassed in this writ petition is that such
amendment was allowed only in 2007 pursuant to
judgment passed by this court in a writ petition.
When the case came up in the list for trial, since
the plaintiff was not prepared to prosecute the
suit, it was dismissed for default. An application
moved by the plaintiff to restore the suit under
Order 9 Rule 9 of Code of Civil Procedure was also
W.P.(C).Nos.23558 Page numbers
AND 25732 OF 2009
dismissed by the trial court. In the appeal
preferred against that order of dismissal fixing a
time limit for the disposal of the suit the
District Judge allowed the appeal. The trial court
was directed to dispose the suit before 30/08/2009.
An application moved for extension of time before
the learned District Judge for disposal of the suit
was disallowed. Impeaching the propriety and
correctness of that order in the interlocutory
application passed by the learned Sub Judge, writ
petition No.23558/2009 has been filed. Meanwhile
an application was moved before the trial court
stating that the firm has been reconstituted and so
much so, some other persons who have obtained
interest over the firm have to be substituted in
the place of the original plaintiff, the firm.
That amendment application was disallowed by the
learned Sub Judge vide Ext.P5 order. Propriety and
correctness of that order is challenged in the writ
petition No.25732/2009 by the persons who have
W.P.(C).Nos.23558 Page numbers
AND 25732 OF 2009
sought for such substitution moving for amendment
of the suit.
2. I heard the counsel on both sides.
Having regard to the submissions made and taking
note of the facts and circumstances presented, I
find no notice to the respondent is necessary and
it is dispensed with. The learned counsel for the
petitioner submitted that consequent to the
dismissal of Ext.P5 order disallowing the amendment
application moved for substitution of the
plaintiff, the suit was also dismissed. Such being
the position, the orders challenged in the two writ
petitions before this court are not in respect of
any pending suit before the court. I do not want
to go into the merit of the applications which are
challenged in the present writ petitions in the
circumstances indicated above. But it has to be
stated that the plaintiff firm which has instituted
the suit is sought to be substituted by some other
W.P.(C).Nos.23558 Page numbers
AND 25732 OF 2009
persons who are stated to be the erstwhile partners
of the plaintiff firm by an amendment moved in the
suit. The relief claimed in the suit included one
for settlement of accounts with the defendant. How
far such an amendment could be allowed is a
question to be looked into with reference to the
Partnership Act covering the rights and liabilities
of a firm in respect of contracts entered with
third parties. In the present writ petition, I do
not want to express any opinion on the proposed
amendment, since the counsel submitted, an
application has been moved for restoring the suit
which was dismissed for default. Both these writ
petitions lack merit, and they are dismissed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv