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2010 DIGILAW 2375 (MAD)

R. Boopathy v. V. Manickamurthy

2010-06-14

G.RAJASURIA

body2010
Judgment :- 1. Inveighing the order dated 14.8.2009 passed by the Principle Subordinate Judge, Tirupur in C.M.A.No.7 of 2008 confirming the order dated 10.3.2008 passed by the District Munsif Court, Tirupur, in I.A.No.50 of 2008 in O.S.No.498 of 2005.C.M.A.No.7 of 2008, this civil revision petition is focused. 2. Heard the learned counsel for the petitioners. 3. Despite printing the names of the advocates for R1 and R2 there is no appearance. Heard the learned counsel for R3 to R5. 4. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: (i) The first respondent herein filed the suit for partition as against as many as 6 defendants, including the revision petitioners 1 and 2 herein. It so happened that the defendants 1 and 2-the revision petitioners herein, did not appear; whereupon they were set ex-parte and the matter proceeded further and the Court passed the preliminary decree for partition. (ii) Subsequently, the revision petitioners, who happened to be the defendants 1 and 2, filed the I.A.No.50 of 2008 for getting the ex-parte decree passed as against them set aside. (iii) After hearing both sides, the lower Court dismissed the said application. As against which, C.M.A. was filed, which was also dismissed. 5. Being aggrieved by and dissatisfied with the order of both the Courts below, this revision is focussed on various grounds, the gist and kernal of them would run thus: (a) Both the Courts below mis-understood as though the decree passed as against the revision petitioners was on merits. (b) The father of the defendants 4 to 6, during his life time, as kartha of the family, sold the entire suit property in favour of the petitioners herein. (c) Both the Courts below assumed and presumed as though the decree passed on hearing others, except the revision petitioners/defendants 1 and 2, would not tantamount to an ex-parte decree and on that sole ground erroneously both the Courts below rejected the prayer of the petitioners/defendants 1 and 2 to get an opportunity to contest the matter, after getting the ex-parte preliminary decree set aside. 6. 6. The points for consideration is as to whether the Courts below were justified in construing that the decree passed could be termed as a contested decree on merits even as against the revision petitioners/D1 and D2 and whether there is any justification for the revision petitioners to get the ex-parte preliminary decree set aside, in view of the reasons set out by them that there was no summons served on them and that the matter proceeded further solely on publication. 7. The learned counsel for the petitioners would reiterate the grounds of the revision and pray for setting aside the order of both the Courts below and for allowing the I.A. and to give an opportunity to the petitioners to contest the matter. 8. The learned counsel for the petitioners also would submit that already written statement of D1 and D2 were enclosed along with the said I.A. 9. A mere perusal of the order of both the Courts below would amply make the point clear that both the Courts below mis-understood the provisions of law governing the ex-parte decrees. The learned counsel for the petitioners appropriately and appositely pointed out that the revision petitioners/defendants 1 and 2, being the purchasers of the suit property from the father of the plaintiff and the defendants 3 to 6, are having independent right to contest the matter and simply because the descendants of the vendor of defendants 1 and 2 litigated and obtained the preliminary decree, that cannot be termed as a contested decree as against D1 and D2. 10. There could be no quarrel over such a proposition as put forth by the learned counsel for the petitioners, but unfortunately, both the Courts below failed to appreciate the same. 11. The learned counsel for the petitioners also by inviting the attention of this Court to the facts involved in this case would submit that in fact summons was not served in person on the revision petitioners/D1 and D2 and only substituted service was resorted to by publication of the summons in the newspaper. He would also submit that the address found set out in the suit summons was not correct. 12. He would also submit that the address found set out in the suit summons was not correct. 12. Be that as it may, in this case, the revision petitioners/D1 and D2 were set ex-parte only once and there is nothing to indicate that the revision petitioners/D1 and D2 being the purchasers of the suit property are bent upon dragging on the proceedings or proved themselves as chronic defaulters in participating in the proceedings. Hence, I am of the view that one more opportunity should be given to the revision petitioners to participate in the proceedings subject to payment of a cost of Rs.2000/- (Rupees two thousand) payable to the plaintiff and Rs.1000/-(Rupees one thousand only) in total to defendants 4 to 6 on or before the end of this month. Whereupon the orders of both the Courts below shall stand set aside and the I.A. No.50 of 2008 shall stand allowed and consequently the preliminary decree shall stand set aside in entirety. The trial Court thereafter shall take the matter on file and deal with the matter as per law as expeditiously as possible. In the result, the civil revision petition is allowed. No costs. Connected miscellaneous petition is closed.