C.L. KURIAN AND BROTHERS, Vs. CICILY KURIAN

JUDGEMENT

(1.) PETITIONER No. 1 is a partnership firm in which petitioner Nos. 2 and 3 and respondent are partners. Respondent filed suit for dissolution of the partnership firm and other reliefs. Petitioners appeared but, were set ex parte. That order was later set aside. Again petitioner were set ex parte. To set aside that ex parte order petitioners filed I.A. No. 4766 of 2010 (in O.S. No. 685 of 2006 of the court of learned Principal Sub Judge, Thrissur). That application was opposed by the respondent. Learned Principal Sub Jude vide Ext.P3, order has dismissed the application. Hence this writ petition in challenge of that order. Learned Counsel for petitioners contend that in spite of showing good cause, application has been dismissed which is erroneous. If at all no good cause was shown it was well within the power of learned Principal Sub Jude to exercise his discretion to allow petitioners take part in the proceeding from the day they subsequently appeared in the court. Learned Counsel placed reliance on the decisions in Arjun Singh v. Mohindra Kumar and Ors. : AIR 1964 SC 993, Plantation Corporation of Kerala Ltd. v. Hussain, 1998 (1) KLT 1008 and Vijaya Kumar Madan and Ors. v. R.N. Gupta Technical Education Society and Ors. : 2002 (5) SCC 30. Learned Counsel for respondent argues that there was no good cause shown by petitioners for their absence in court and hence the ex parte order should stand. No evidence has also been adduced by petitioners. Hence there is no reason to interfere with the impugned order.

(2.) PETITIONERS were set ex parte on 05 -04 -2010. The same day, learned Principal Sub Judge allowed I.A. No. 3880 of 2006 as per which a receiver was appointed in the case. Ext.P1, order states: "official receiver is appointed to take possession of the first defendant firm and to file report". But, it is seen from a true photocopy of the order issued from the court of learned Principal Sub Judge that the order read "official receiver is appointed to take possession of the first defendant firm and to collect profits. Intimate the order to the receiver. File report on 17 -05 -2010".

(3.) ADMITTEDLY , the suit is still pending and learned Principal Sub Judge has only set petitioners ex parte. Having regard to the facts and circumstances of the case I do not find reason to disbelieve the statement of petitioners that their counsel had not intimated them about the development in the case and that resulted in their being set ex parte. In a suit of this nature where dissolution of partnership firm and consequential reliefs are claimed it is only just and proper that petitioners are given opportunity to contest the case unless contumacious negligence is shown on their part. I was not able to find any such contumacious negligence on the part of petitioners. It follows that petitioners ought to have given an opportunity to contest the case. I am unable to upheld Ext.P3, order passed by the learned Principal Sub Judge.