IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12374 of 2010(O)
1. ARUN CHANDRA C.SHAH
... Petitioner
Vs
1. MRADUL KUMAR S.SHAH
... Respondent
For Petitioner :SRI.T.KRISHNAN UNNI (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice P.BHAVADASAN
Dated :08/04/2010
O R D E R
P.BHAVADASAN, J.
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WP(C) No.12374 of 2010
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Dated 8th April 2010
Judgment
In this Writ Petition filed under Article 227 of the
Constitution of India, the relief sought for by the petitioner
is as follows :
“Direct the learned 2nd Additional Subordinate Judge,
Kozhikode to record the settlement arrived at between the
parties in the suit OS 222/1996 as evidenced by Exts.P6
and P7 and to dispose of the suit OS No.222/1996 as
expeditiously as possible, recording the settlement, without
insisting the presence of the 1st respondent in the Court.”
2. The petitioner, as plaintiff, instituted two suits,
as OS Nos.222/1996 and 395/1994 before the Sub Court,
Kozhikode. The respondents herein were the defendants in
the suits. OS No.222/1996 was filed for dissolution of
partnership firm, accounting and injunction and OS
No.395/1994 was filed praying for a declaration that the
expulsion of the petitioner from the partnership firm is
invalid and unenforceable as against the petitioner. Both
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the suits were decreed by the Court below as per
Judgment dated 31.10.1997, a copy of which is produced
as Ext.P1. The court below decreed OS No.222/1996 and
a preliminary decree was passed dissolving the firm with
effect from 15.02.1996. Various other details are also
given in the Petition, which are not relevant for the present
purpose. It appears that when the final decree application
was pending, the parties decided to settle their disputes
and entered into a compromise memorandum. Accordingly,
such a compromise was entered into and it was signed by
the parties to the suit. While so, it appears that the
petitioner filed IA No.695/10 for advancing the hearing and
the second respondent filed a statement, stating that the
first respondent was incapable to look after his affairs and
also praying that a guardian may be appointed for that
purpose. Copies of the IA and statement are Exts.P2 and
P3. Later, the second respondent also filed IA No.850/10
for withdrawing the averments made against the first
respondent in the statement dated 23.09.2009. In IA
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No.850/10, the court below directed the first respondent to
appear before the Court on 21.05.2010. The learned
counsel for the petitioner submitted that since the dispute
between the parties was already settled and a
memorandum of understanding has been signed by the
parties, and the same was brought to the notice of the
court below, there is no justification for ordering personal
appearance of the first respondent. The learned counsel
also pointed out that throughout the proceedings, the first
respondent’s counsel had no case that the first respondent
was incapable of looking after his affairs.
Since the parties have already settled their
disputes, there is no reason why the Court should not
accept the same unless it is found to be not in accordance
with law. Once a compromise is filed, the issue regarding
the capacity of the 1st respondent to look after the affairs,
does not survive. Further, as pointed out by the learned
counsel, the first respondent, throughout the proceedings
had not raised the issue regarding incapability of the first
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respondent. It is felt that the order passed by the Court
below cannot be sustained. Accordingly, this Petition is
allowed. The Court below is directed to dispose of OS
No.222/1996 pending before it in accordance with law as
expeditiously as possible, considering the settlement
arrived at between the parties as evidenced by Exts.P6 and
P7 without insisting for the personal appearance of the 1st
respondent.
P.BHAVADASAN, JUDGE
sta
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