Allowed

M/S.Lotus Properties, Rep.by Managing Partner, M.D.Jayanthan Namboothiripad v. Rajeev Ram Varma

Kerala HC18 Nov 2016RFA/182/2016

Case brief

AI extract

What is this about?

In this Regular First Appeal, the High Court of Kerala set aside the judgment below. The court held that a suit re-presented after amendment in a competent court is a fresh suit, not a discontinuation of the earlier invalid filing. Accordingly, the appeal was allowed with the case remanded for fresh disposal.

What did the court decide?

Impugned judgment set aside; suit remanded to trial court for fresh disposal; Court fee refunded to appellant.

M/S.Lotus Properties, Rep.by Managing Partner… — Civil Procedure and Limitation | Kerala HC (2016)

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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 V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938

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RFA.No. 182 of 2016 ()

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----------------------AGAINST THE JUDGMENT IN OS 505/2013 of I ADDL.SUB COURT, ERNAKULAM DATED 10-02-2016

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APPELLANT(S)/PLAINTIFF:

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M/S.LOTUS PROPERTIES, MANGAYIL LANE, PETTAH, REP.BY MANAGING PARTNER, M.D.JAYANTHAN NAMBOOTHIRIPAD AGED 54 YEARS, S/O.LATE DAMODARAN NAMBOOTHIRIPAD, D1, SRI.HARI APARTMENTS, IN FORT, TRIPUNITHURA - 682 301.

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BY ADVS.SRI.P.VIJAYAKUMAR SRI.C.R.REGHUNATHAN

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SRI.B.HARRYLAL

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

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RAJEEV RAM VARMA S/O.LATE SREEJAYADEVI, SREEDEVI NIVAS, LAYAM ROAD, TRIPUNITHURA - 682 301.

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K.ANITHA VARMA D/O.LATE SREEJAYADEVI, H-75, NEW TEMPLE LAND, P.O.HOSUR, TAMILNADU - 635 109.

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R1&2 BY ADV. SRI.ABRAHAM P.GEORGE R1&2 BY ADV. SRI.K.VINODKUMAR (707/89) R1&2 BY ADV. SMT.M.SANTHY R1&2 BY ADV. SMT.M.D.BEENA R1&2 BY ADV. SRI.THOMAS MATHEW (KOPPARA)

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.CHITAMBARESH & ANIL K.NARENDRAN, JJ. ----------------------R.F.A.No.182 of 2016

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----------------------Dated this the 18^th day of November, 2016

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J U D G M E N T

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Chitambaresh, J.

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True it is that the court of the Munsiff of Ernakulam had the pecuniary jurisdiction to entertain O.S.No.676/2012 on 10.8.2012 as the suit was one for mandatory and prohibitory injunction. But the plaint was returned to be presented before the proper court after amendment on 4.11.2013 by incorporating the reliefs of return of money and damages. The plaintiff firm secured registration in the meanwhile on 5.9.2012 well before the plaint was re-presented on 4.11.2013 before the court of the Subordinate Judge. It cannot therefore be said that O.S.No.505/2013 on the file of the court of the Subordinate Judge is hit by Section 69 (1) of Indian Partnership Act, 1932.

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The following excerpts are profitable:-

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i) Amar Chand Inani v. Union of India [AIR 1973 SC 313]

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“8........It was, however, argued by Counsel for the appellant that the suit instituted in the Trial Court by the presentation of the plaint after it was returned for presentation to the proper

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RFA.No.182/2016

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Court was a continuation of the suit filed in the Karnal Court and, therefore, the suit filed in Karnal court must be deemed to have been filed in the trial Court. We think there is no substance in the argument, for, when the plaint was returned for presentation to the proper Court and was presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court. In other words the suit instituted in the trial Court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the Karnal Court (see the decisions in Hirachand Succaram Gandhy v. G.I.P. Rly.Co., AIR 1928 Bom 421, Bimla Prasad Mukerji v. Lal Moni Devi, AIR 1926 Cal 355, and Ram Kishun v. Ashirbad, ILR 29 Pat 699 = (AIR 1950 Pat 478)”

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ii) ONGC Ltd. V. M/s.Modern Construction and Co. [AIR 2014 SC 83]:

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“13. .........However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same.”

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The fact that the court of the Munsiff had the jurisdiction to entertain O.S.No.676/2012 does not mean that O.S.No.505/2013 on the file of the court of the Subordinate Judge is a continuation. The suit in

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RFA.No.182/2016

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O.S.No.505/2013 is to be considered as a new one filed by a registered partnership firm which cannot be said to be not maintainable in law.

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The impugned judgment is set aside and the suit is remanded to the trial court for fresh disposal in accordance with law with specific direction to answer all the issues framed. The court fee paid on the memorandum of Regular First Appeal shall be refunded to the appellant and the parties shall appear in the court below on 15.12.2016. Every endeavour shall be made by the Court of the Subordinate Judge of Ernakulam to dispose of the suit before the onset of the summer vacation in the year 2017.

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The Regular First Appeal is allowed. No

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costs.

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V.CHITAMBARESH, Judge.

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Sd/ANIL K.NARENDRAN, Judge.

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nj/18.11.2016

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//True Copy//

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P.S. to Judge.

M/S.Lotus Properties, Rep.by Managing Partner, M.D.Jayanthan Namboothiripad v. Rajeev Ram Varma

Case brief

What is this about?

What did the court decide?

M/S.Lotus Properties, Rep.by Managing Partner, M.D.Jayanthan Namboothiripad v. Rajeev Ram Varma

Case brief

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What did the court decide?

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