Allowed

Ajith Kumar v. Deepa

Kerala HC5 Feb 2018Mat.Appeal/41/2009

Case brief

AI extract

What is this about?

In an appeal against the Family Court's dismissal for lack of jurisdiction, the High Court held that a petition for dissolution of a partnership firm created during marriage falls within the Family Court's jurisdiction under Section 7. The appeal allowed, impugned order set aside.

What did the court decide?

The impugned order setting aside the original petition was quashed. The appellant was directed to re-present the petition before the Family Court by 14.3.2018 to proceed on merits.

Ajith Kumar Vs Deepa — Contract and Commercial Disputes | Kerala HC (2018)

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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 K.HARILAL &

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THE HONOURABLE MR. JUSTICE A.M.BABU

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MONDAY, THE 5TH DAY OF FEBRUARY 2018 / 16TH MAGHA, 1939

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Mat.Appeal.No. 41 of 2009

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(AGAINST THE ORDER IN IA 2495/08 IN OP NO.390/07 AND THE CONSEQUENTIAL ORDER IN OP NO.390/07 DATED 15.12.2008 ON THE FILE OF THE FAMILY COURT, KOZHIKODE)

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APPELLANT(S)/APPELLANT

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AJITH KUMAR, S/O.SUKUMARAN, MUNDOTH THAZHAM HOUSE, CHELAVOOR.P.O, KOZHIKODE.

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BY ADVS.SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.K.SANEESH KUMAR

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RESPONDENT(S)/RESPONDENTS:

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1. DEEPA, D/O.DAMODARAN, AMBAYATHINGAL HOUSE PERUVAYAL AMSOM, DESOM, KOZHIKODE,(MENTALLY ILL AND REPRESENTED BY HER FATHER SRI.DAMODARAN).

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2. DAMODARAN, S/O.C.K.CHANDU, AMBAYATHINGAL HOUSE, PERUVAYAL AMSOM DESOM, KOZHIKODE.

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3. KOTTAKKAL RAVI, S/O.CHEKKUTTY, KOTTAKKAL HOUSE, MANIPURAM, KODUVALLY.

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R, BY ADV. SRI.ARJUN SREEDHAR R,R BY ADV. SRI.ARUN KRISHNA DHAN R,R BY ADV. SMT.C.G.PREETHA R, BY ADV. SRI.P.S.SREEDHARAN PILLAI R,R BY ADV. SRI.T.K.SANDEEP

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.Harilal & A.M.Babu, JJ.

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

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Mat.Appeal No.41/2009

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==================================== Dated this the 5^th day of February, 2018.

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JUDGMENT

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K.Harilal, J.

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1.The appellant and the first respondent are

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husband and wife. The appellant filed O.P.No.390/2007 before the Family Court, Kozhikode under Section 7 (1)(c) of the Family Court Act and prayed for a decree dissolving the partnership firm in which the appellant and the first respondent are partners and for settlement of account and realisation of amount due to the petitioner under the said partnership. The respondent filed

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I.A.No.2495/2008 in the said original petition

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to return the original petition to the appellant/petitioner, contending that the said

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Mat.A.41/2009

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petition is not maintainable before the Family

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Court for want of jurisdiction. According to the averments in the petition, the marriage between the petitioner and the first respondent

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was solemnized in the year 1995 and subsequently their marital relationship got strained and they are living separately. While they were living together, they entered into a partnership agreement and started a book-stall under the said partnership deed by name Vidya Book-stall. Since they are living separately and the relationship got strained, she is unable to continue with the partnership. In the aforesaid I.A. it is contended by the first respondent that the relief sought for in the petition is outside the purview of jurisdiction envisaged under Section 7 of the Family Court

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Mat.A.41/2009

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Act. The subject-matter involved in the petition is not with respect to the property of the petitioner and the first respondent and the subject-matter does not arise out of the marital relationship of the petitioner and the first respondent.

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2.The appellant contended that the need for dissolution of partnership firm arose from the marital disharmony and they started the partnership firm when they were living together in harmonious relationship. Since they are living separately and their marital relationship got strained, the cause of action for the dissolution of partnership firm also arose and culminated in the original petition. In short, according to the appellant, the subject-matter of cause of action arose out of

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Mat.A.41/2009

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the marital relationship and the proceedings is

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in respect of the property of the parties to a marriage.

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3.On the rival pleadings of both the parties, the Family Court considered the question of jurisdiction and returned the original petition on a finding that the Family Court has no jurisdiction to try the original petition to the appellant, on a finding that the there is no circumstance closely surrounding, preceding or following a marital relationship.

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4.Heard the learned counsel for the appellant and the learned counsel for the respondents.

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5.Learned counsel for the appellant advanced arguments assailing the findings of the Family Court that there is no circumstance closely surrounding, preceding or following a marital

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Mat.A.41/2009

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relationship from which the need for dissolution of partnership firm arose. The learned counsel appearing for the respondent advanced arguments to justify the impugned order. In view of the above argument, the point to be considered is, is the Family Court justified in finding that the Family Court has no jurisdiction to try the original petition as there is no circumstance closely surrounding, preceding or following the marital relationship between the petitioner and the first respondent.

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6.Going by the averments in the original petition, it could be seen that the appellant has narrated the sequence of incidents after the marriage and specifically pleaded that they have started the partnership firm at the time

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Mat.A.41/2009

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when they were living together under the same

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roof and at the time of filing the original petition, the marital relationship got strained and they are living separately. According to him, he is not getting any amount as profit from the book-stall under the partnership firm after he started to live separately. In short, according to the averments in the petition, the need for dissolution of partnership firm arose from the marital disharmony. So also it is specifically averred that though the third respondent is also a partner, he is a formal partner only as he has no investment at all to the partnership and the petitioner has 50% share and the first respondent has 45% share and considering the fact that the book-stall started in the tenanted premises of the third

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Mat.A.41/2009

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respondent, he is also made a partner. To put it differently, according to the appellant, the third respondent has no involvement in the partnership firm and he is only a formal party. The said averments are not disputed by the respondent herein. It is also specifically averred that they started the partnership firm

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when they were living together harmoniously under the same roof. Thus, it is well discernible from the pleadings that though the third respondent is also a partner, the firm is the creation of the appellant and the first respondent only and the need for dissolution of partnership firm arose from the marital disharmony among them only.

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7.In the above analysis, we find that according to the averments in the petition, the

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partnership firm is, actually, the property of the appellant and the first respondent only. In short, the suit is one with respect to the property of the parties to the marriage. So also we find that according to the averments in the petition, the need for dissolution of partnership firm arose out of the strained marital relationship. In the above analysis, we find that the Family Court has jurisdiction to try the original petition under Clauses (c) and (d) of Section 7 of the Family Court Act. It is to be remembered that for considering the jurisdiction, the averments in the petition assumes significance and relevance. We find that the Family Court went wrong by finding that there is no circumstance closely surrounding, preceding or following the marital

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Mat.A.41/2009

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relationship, in the instant case.

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8.Moreover, the said application challenging the jurisdiction was filed in a belated stage after

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the commencement of trial. It is trite law that jurisdictional objection must be taken at the earliest possible opportunity in all cases, where issues are settled at or before such settlement. Here, no explanation has been given for the long delay and it is also fatal.

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9.Consequently, we set aside the impugned order and the appellant is directed to re-present the original petition, if it is returned to him, before 14.3.2018. The Family Court is directed to proceed with the original petition and pass orders on merits, after trial. The parties shall appear before the Family Court on 19.3.2018. The Family Court shall dispose of

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Mat.A.41/2009

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the case as expeditiously as possible.

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The Mat Appeal is disposed of as above.

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All the pending interlocutory applications will

stand closed.

Sd/-

K.Harilal, Judge

Sd/-

A.M.Babu, Judge

sl.

/true copy/

P.S. To Judge

Ajith Kumar v. Deepa

Case brief

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Ajith Kumar v. Deepa

Case brief

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