Allowed

Donnie J.M.Philip v. P.Venugopal

Kerala HC3 Apr 2008RP/423/2008

Case brief

AI extract

What is this about?

The Kerala High Court allowed a review petition filed by a third party seeking renewal of a bar licence where the 1st respondent in the original writ petition had died. The court dismissed the original writ petition as it was filed by partners against a renewal application in the name of their deceased partner.

What did the court decide?

The review petition is allowed, the judgment dated 27.3.2008 is recalled, and the writ petition is dismissed.

Donnie J.M.Philip Vs P.Venugopal — Public Procurement and Tenders | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE S.SIRI JAGAN

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THURSDAY, THE 3RD APRIL 2008 / 14TH CHAITHRA 1930

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RP.No. 423 of 2008(A) --------------------AGAINST THE JUDGEMENT/ORDER IN WPC.9872/2008 ....................

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REVIEW PETITIONER/3RD PARTY:

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DONNIE J.M.PHILIP, S/O.LATE M.P.PHILIP, NATIONAL BUNGLOW, PANAVILA JUNCTION, THYCAUD, THIRUVANANTHAPURAM.

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BY ADV. SRI.N.RAGHURAJ

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SMT.K.AMMINIKUTTY

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RESPONDENTS: -------------

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P.VENUGOPAL, PARTNER, DEEPA BAR, T.C.NO.29/993, NATIONAL TOURIST HOME, OVER BRIDGE JUNCTION, M.G.ROAD, THIRUVANANTHAPURAM.

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V.JAYARAJAN, PARTNER, DEEPA BAR, T.C.NO.29/993, NATIONAL TOURIST HOME, OVER BRIDGE JUNCTION, M.G.ROAD, THIRUVANANTHAPURAM.

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M.P.PHILIP, PARTNER, DEEPA BAR, T.C.NO.29/993, NATIONAL TOURIST HOME, OVER BRIDGE JUNCTION, M.G.ROAD, THIRUVANANTHAPURAM.

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THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM.

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STATE OF KERALA, REP. BY THE CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM.

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G.P. SHRI.T.T.MUHAMOOD SHRI.T.G.RAJENDRAN.

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 03/04/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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S.SIRI JAGAN, J.

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==================

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R.P.No.423/2008 & W.P.(C).No.9872/2008

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==================

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Dated this the 3^rd day of April, 2008

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O R D E R

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This review petition is filed by a third party who is not impleaded in the writ petition. He is the son of the 1^st respondent in the writ petition. In the writ petition, the petitioners submitted that they and the 1^st respondent are partners of a firm which runs a tourist home by name, “National Tourist Home”. They submitted that the firm obtained bar licence in the premises of the tourist home in the name of the 1^st respondent and when they fell apart, several suits have been filed by parties. While matters were so standing, the 1^st respondent applied for renewal of the bar licence in his name against which the petitioners filed Ext.P5 representation before the 2^nd respondent and wanted this court to direct the 2^nd respondent to consider Ext.P5 representation while passing orders on the renewal application, which was permitted by me by the impugned judgment.

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Now the review petitioner submits that the 1^st respondent died long back which the petitioners were aware of

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r.p.423/08

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and they have filed Ext.P5 representation against renewal of the licence in the name of the 1^st respondent fully knowing that the 1^st respondent is no more. He would submit that after his father died on 1.3.2005, the licence was renewed without any objection. He further submits that the partnership between the petitioners in the writ petition and his father was terminated by the petitioners themselves as early as on 20.5.1988. He also submits

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that the bar is conducted in a premises belonging to him and his brother. In fact the application for renewal was filed by the petitioner in the review petition. In the above circumstances, the judgment is liable to be recalled and the writ petition is liable to be dismissed, is the contention in the review petition.

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I have considered the rival contentions in detail.

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The petitioners in the writ petition do not now dispute

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that the 1^st respondent in the writ petition died on 1.3.2005. The averment of the petitioners in the writ petition is that the petitioners and the 1^st respondent are partners of a firm and the 1^st respondent is running a bar inside the tourist come conducted by the firm in the name of the 1^st respondent. If that be so, then the petitioners could not have been unaware of the death of the

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r.p.423/08 3

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1^st respondent. The counsel for the petitioner in the review petition points out that as early as on 17.10.2007 the petitioners themselves have filed I.A.No.5362/2007 in O.S.No.491/2004 before the Sub Court, Thiruvananthapuram, stating that the 1^st respondent is no more and the cause-title of the suit may be changed accordingly. This could not be disputed by the counsel for the petitioners in the writ petition. Therefore, clearly the writ petition has been filed with a dead person in the party array and the writ petition is liable to be dismissed on that ground alone, especially when the petitioners were aware that the 1^st respondent was no more. Further, in Ext.P5 there is no objection raised against the renewal of the licence in the name of the petitioner in the review petition. The entire averment in Ext.P5 representation is against renewal of the licence in the name of the 1^st respondent, who is admittedly no more. It is clear that at that time the petitioners in the writ petition were aware that the 1^st respondent in the writ petition was no more. Apparently the attempt of the petitioners was to cause difficulties for the petitioner in the review petition in getting his licence renewed. That being so, the question of considering that objection while

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r.p.423/08 4

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considering the application for renewal submitted by the petitioner in the review petition does not arise. In view of the above findings, the review petition is allowed and the judgment dated 27.3.2008 in the writ petition is recalled and the writ petition is dismissed.

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In fact the petitioners approached this court with unclean hands and tried to take this court for a ride. Ordinarily they should have been mulcted with heavy costs. However, exercising restraint, I refrain from doing so.

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sdk+

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Sd/S.SIRI JAGAN, JUDGE

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///True copy///

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P.A. to Judge

Donnie J.M.Philip v. P.Venugopal

Case brief

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Donnie J.M.Philip v. P.Venugopal

Case brief

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