JUDGMENT

Dated this the 17th day of February, 2022 The petitioner is the defendant in O.S.No.

230 of 2002 on the files of the Sub Court, North Paravur. The original plaintiff died during the pendency of the suit and the respondents, being the legal representatives, got impleaded. The suit is filed seeking a declaration that the partnership by name 'M/s.Elmech Engineers' constituted by the plaintiff and the defendant is liable to be dissolved, to allow the plaintiff to recover his share from the defendant after settlement of accounts, to sever the joint possession of the plaint schedule property from the defendant and to allow the plaintiff to be in absolute enjoyment of the business.

2. As per the averments in the plaint, the plaint schedule property was allotted to the plaintiff by the District Industries Centre on 22.02.1980. The plaintiff started an industry therein by name Elmech Engineers. On 01.07.1986, he entered into a partnership agreement with the defendant and made defendant the Managing Partner. Later, difference of opinion arose among the partners and on 02.08.1994, the defendant forcibly obstructed the plaintiff from entering the plaint schedule properties. The defendant also withheld the documents and important files of the plaintiff kept in the office room of the unit. Apprehending that the defendant may create forged documents by misusing his signed papers, plaintiff filed O.S.No.449 of 1994, for a permanent prohibitory injunction restraining the defendant from alienating and encumbering the plaint schedule properties in favour of strangers without the plaintiff’s consent and from obstructing the plaintiff from entering the plaint schedule properties, factory unit and office. That suit was dismissed by the Sub Court. Thereupon the plaintiff preferred appeal to the District Court as A.S.No. 187 of 1996. In the appeal, the plaintiff filed an interlocutory application seeking permission to withdraw the suit, with permission to file a fresh suit. The application, filed under Order XXIII Rule 1(3) of CPC was allowed by the appellate court. The petitioner challenged that order before this court in CRP No.2278 of 2000. Pending the revision, the present suit was instituted alleging that, from the documents and the contentions raised in the earlier suit, the plaintiff had come to know that the defendant had forged a document styled as the plaintiff's retirement deed. According to the plaintiff, he had never retired from the partnership and the so-called retirement deed is vitiated by fraud. The plaintiff therefore demanded dissolution of the partnership after settlement of accounts. The defendant having refused to accede to the demand, the suit was filed.

3. After filing of the subsequent suit, CRP No.2278 of 2000 was allowed by this court, setting aside the order allowing the plaintiff to withdraw the suit with liberty to file a fresh suit. In the wake of that order, the defendant took up a contention that the subsequent suit is barred under Order XXIII Rule 1 (4) of the Code. The trial court heard maintainability as the preliminary issue and held that the suit is not maintainable. That decision was confirmed by the first appellate court. The second appeal was allowed by this Court, holding that the subsequent suit is not barred by Rule 1(4) of Order 23. As the defendant had raised an alternative plea that the suit is barred by res judicata and Order II Rule 2 of CPC, the trial court was directed to consider the question of maintainability afresh. Accordingly, the trial court considered the question and by Ext.P12 preliminary judgment, held the suit to be maintainable. Aggrieved, the original petition is filed.

4. A perusal of the plaint in O.S.No.449 of

1994 produced as Ext.P5 reveals that the cause of action for filing that suit was the alleged obstruction caused to the plaintiff from entering the plaint schedule property, illegal retention of his plaintiff's papers and documents and the apprehension that the defendant