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2009 DIGILAW 3847 (MAD)

A. Padmavathy v. Bagyalakshmiammal (deceased) & Others

2009-09-18

R.SUDHAKAR

body2009
Judgment :- The Civil Revision Petition is filed by the plaintiff challenging the order and decreetal order dated 17. 2009 passed in I.A.No.300 of 2009 in O.S.No.538 of 2006 on the file of the First Additional District Court, Coimbatore. 2. The revision petitioner/plaintiff filed the suit for partition and separate possession of her 1/7 share. Written statements were by the defendants contesting the suit. Thereafter, it appears that the respondents/defendants were set ex parte. An ex parte preliminary decree was passed on 8. 2008. Thereafter, the revision petitioner/plaintiff filed I.A.No.158 of 2009 for passing final decree for partition. At this point of time, the respondents/defendants filed I.A.No.300 of 2009 praying to set aside the ex parte preliminary decree dated 8. 2008. The court below by order dated 17. 2009 allowed the application on terms. Aggrieved thereby, the revision petition is filed by the plaintiff. 3. In this revision petition, petition and orders thereon in I.A.No.300 of 2009 is filed. In that, though it is stated that the order has been pronounced, the certified copy of the detailed order is not furnished along with the revision petition. Counsel for the revision petitioner states that no separate order is passed by the trial court. 4. The grievance of the revision petitioner/plaintiff is that the intention of the respondents/defendants is to delay or protract the suit proceedings and thereby denying the valuable rights of the revision petitioner/plaintiff to get partition of her 1/7 share in the suit property. The reason given for setting aside the ex parte preliminary decree is vague and bereft of details. 5. In the affidavit, it has been stated that the suit was posted on 16. 2008 for framing of issues. Thereafter, it was posted for trial on 8. 2008. The affidavit further states that by oversight, the date of hearing was noted as 28. 2008. Therefore, there was no representation on 8. 2008, when the ex parte preliminary decree was passed against the respondents/defendants. The application for setting aside the ex parte preliminary decree was filed in the very same month after noticing the mistake. On this premise, the court below has accepted the reason for non-appearance and allowed the I.A.No.300 of 2009 and restored the suit on terms. The non-appearance on the first occasion is explained in the affidavit and the court below was satisfied with the explanation. On this premise, the court below has accepted the reason for non-appearance and allowed the I.A.No.300 of 2009 and restored the suit on terms. The non-appearance on the first occasion is explained in the affidavit and the court below was satisfied with the explanation. There is no reason to disbelieve the version of the respondents/defendants. The application to set aside is also filed in time. Hence, the court below was justified in showing some indulgence. 6. Counsel for the revision petitioner/plaintiff says that the conditional order has been complied with. The suit is of the year 2006. The suit is for partition of the plaintiffs 1/7th share in the common property. The grievance of the revision petitioner/plaintiff now is that the suit has to be disposed of at an early date and the respondents/defendants should not be allowed to protract the issue and that plea can be accepted. 7. In this circumstance, this Court finds no good reason to interfere with the order of the court below. The Civil Revision Petition is dismissed at the admission stage. Consequently, connected miscellaneous petition is closed. 8. As suggested by the learned counsel for the revision petitioner/plaintiff, the trial Court is directed to dispose off the suit O.S.No.538 of 2006 expeditiously preferably on or before 30.11.2009.