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2008 DIGILAW 3330 (MAD)

Rangasamy v. K. C. Palanisamy

2008-09-10

S.TAMILVANAN

body2008
Judgment :- 1. This Civil Revision Petition has been preferred against the order, dated 211. 2006 passed in C.M.A.No.2 of 2006 on the file of the Principal Subordinate Judge, Gobichettipalayam, reversing the order, dated 111. 2005 passed in I.A.No.502 of 2004 in O.S.No.289 of 2004 on the file of the District Munsif, Sathyamangalam. 2. It is an admitted fact that the revision petitioner, as plaintiff filed the suit against the respondent herein and three others before the Sub-Court, Gobichettipalayam, seeking a partition decree, that was decreed exparte. Subsequently, the respondent / fourth defendant had filed an Interlocutory Application under Order IX Rule 13 CPC to set aside the exparte decree passed on 26.08.1992. The learned District Munsif, considering the facts and circumstances, dismissed the Interlocutory Application. Aggrieved by which, the respondent herein preferred the Civil Miscellaneous Appeal referred above before the Principal Sub-Court, Gobichettipalayam. The appellate court reversed the order and decreetal order passed by the trial court and set aside the exparte decree, dated 26.08.1992. Aggrieved by which, the plaintiff in the suit has preferred this revision. 3. According to Mr.K.Sundararajan, learned counsel appearing for the revision petitioner, preliminary decree was passed in the year 1992, hence, nearly 16 years, after the exparte decree having been passed, the respondent herein filed the Interlocutory Application under Order IX Rule 13 CPC, 5 ½ years after the exparte decree and therefore, there is no justification for the court below in allowing the petition. 4. Per contra, Mr.T.Doraisamy, learned counsel appearing for the respondent produced a xerox copy of the registered Will, said to have been executed by Senniappa Gounder, father of the petitioner and the respondent. It is seen from the copy of the plaint that there are four defendants, however, the respondent / fourth defendant had filed the application, under Order IX Rule 13 CPC, only against the petitioner / plaintiff, even without impleading the other sharers, who were all defendants in the suit. As per the alleged Will, late Senniappa Gounder is said to have bequeathed his properties to his three sons, daughter and also his wife. 5. As contended by the learned counsel appearing for the respondent, there are triable issues and the genuineness and the validity of the alleged Will has to be established, as per procedure known to law. As per the alleged Will, late Senniappa Gounder is said to have bequeathed his properties to his three sons, daughter and also his wife. 5. As contended by the learned counsel appearing for the respondent, there are triable issues and the genuineness and the validity of the alleged Will has to be established, as per procedure known to law. In such circumstances, as it is a partition suit, to meet the ends of justice, I find it reasonable to direct the court below to dispose the main suit only on merits and in accordance with law. 6. Learned counsel appearing for the revision petitioner contended that on no fault of the revision petitioner, he has been driven to courts, one after another and incur expenses. Considering the aforesaid circumstances, I find it reasonable to pass a conditional order to pay cost and accordingly, the respondent herein is directed to pay a sum of Rs.2,000/- to the revision petitioner / plaintiff towards costs on or before 29.09.2008 and if the revision petitioner is not inclined to receive the amount, the same shall be deposited before the court below, failing which the Civil Revision Petition shall stand allowed, considering the facts and circumstances. 7. Similarly, if the conditional order is complied with, the trial court is directed to restore the suit, as per the order of the Court below and dispose the suit on merits and in accordance with law, within a period of six months from the date of receipt of a copy of this order. The petitioner or the respondent herein shall give notice to the other defendants before the suit is proceeded with by the Trial Court. 8. The Civil Revision Petition is disposed of with the above observation. Consequently, connected miscellaneous petition is closed. No costs.