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2012 DIGILAW 3005 (MAD)

Marriammal v. Samiathal

2012-07-13

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 23.01.2012 passed in I.A.No.1889 of 2011 in I.A.No.404 of 2011 in O.S.No.206 of 2002 by the learned District Munsif cum Judicial Magistrate, Kangayam, this civil revision petition is focussed. 2. An abstract and summation of the germane facts in a few broad strokes could be encapsulated thus: "The respondent/plaintiff filed the suit for partition as against ten persons. Ultimately the ex parte decree was passed. D2 filed an application under Section 5 of the Limitation Act to get the delay of 2378 days condoned in filing the application under Order IX Rule 13 of CPC. The precise contention of the revision petitioner was that no suit summons was served on her and she had not given Vakalat to any Advocate to appear on her behalf. However, to her great dismay and disappointment, she came across in the order of the Court as if some Advocate was instructed to appear on her behalf and that he had not filed Vakalat etc and that she was set ex parte. In order to highlight the said factum, she wanted the case records to be summoned by summoning the Bench Clerk and the said application was dismissed." 3. The point for consideration is as to whether there is any perversity or illegality in the order passed by the Court below? 4. I would like to point out that the application filed under Order XVI Rule 1 of CPC by the revision petitioner herein before the lower Court was a misconceived one. The same Court which passed the ex-parte decree is seized of the I.A. under section 5 of the Limitation Act by the revision petitioner herein. In such a case, the truth or falsity in the averments of the revision petitioner in the said affidavit could rightly be verified with reference to the Court records and for that separate summons is not required and the Bench Clerk need not be examined. The Court could judicially take note of the fact whether suit summons was served or not and in respect of that, invoking Order XVI Rule 1 of CPC by the party is unwarranted and accordingly, with the above observation, this revision is dismissed. No costs. Consequently, connected miscellaneous petition is closed.