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2012 DIGILAW 3067 (MAD)

M. Sulochana v. M. Loganayaki

2012-07-17

V.DHANAPALAN

body2012
Judgment :- 1. These two Civil Revision Petitions are filed challenging the order dated 9.11.2011 in I.A.No.1030 of 2011 in I.A.No.879 of 2011 in O.S.No.174 of 2011 and I.A.No.1031 of 2011 in I.A.No.878 of 2011 in O.S.No.174 of 2011 on the file of the Sub-Court, Tambaram. 2. The revision petitioner is the plaintiff in the suit. The respondent/first defendant is the mother of the revision petitioner. The petitioner filed the suit for declaration declaring that the construction of the building had been raised in the suit schedule property, which was constructed out of the funds of the plaintiff and that the plaintiff has got absolute right or ownership and title as owner thereof and consequential injunction restraining the respondent/first defendant, her men, agents, servants and others from collecting rents in respect of the suit property by virtue of the alleged Will dated 24.12.2008, registered as document No.181 of 2008 in Book No.III on the file of the Office of the Sub-Registrar, Pallavaram, South-Chennai; declaring that the Deed of Will, dated 24.12.2008, registered as document No.181 of 2008 in Book No.III on the file of the Office of the Sub-Registrar, Pallavaram, South-Chennai, as null and void and unenforceable; pass a preliminary decree for partition of the plaintiff's one-half (=) share in the suit land along with the entire construction of building which had been raised in the suit schedule by metes and bounds and for separate possession; to pass a final decree for partition by appointing an Advocate Commissioner to divide the suit land into two equal shares by metes and bounds and allot one-half (=) share along with the entire construction of building which had been raised in the suit schedule to the plaintiff and for a permanent injunction restraining the defendants, their men, agents, servants and others from in any manner encumbering or alienating the suit schedule property to the third parties by virtue of the Deed of Will, dated 24.12.2008, registered as document No.181 of 2008 in Book No.III on the file of the Office of the Sub-Registrar, Pallavaram, South-Chennai and restraining them from in any way interfering with the plaintiff's right of possession of her share in the suit schedule property. 3. When the I.As. were listed for hearing, there was no appearance of the respondent/first defendant and hence, on 30.9.2011, the trial Court set the first defendant ex-parte. 3. When the I.As. were listed for hearing, there was no appearance of the respondent/first defendant and hence, on 30.9.2011, the trial Court set the first defendant ex-parte. The respondent/first defendant filed petitions to set aside the ex-parte order passed in the said I.As. The trial Court allowed the I.As. taking into consideration the reasons stated by the respondent that on 30.9.2011, due to her ill-health, she was unable to appear before the Court and record her appearance, though the trial Court took a view that there was no material proof for ill-health and the objection raised by the revision petitioner holds good, but at the same time, if the nature of the suit is considered, the suit is between the family members with regard to the disputing Will, dated 24.12.2008 and also considering the prayer for partition, if the respondent has been given an opportunity to contest these two petitions and if that opportunity is denied to her, then, definitely, she will be prejudiced if any order is passed ex-parte. In that view of the matter, while considering the nature of the suit, the trial Court allowed the I.As. to set aside the ex-parte order, however, without awarding any costs, as against which, the present C.R.Ps. have been filed. 4. Mr.B.Dayaalan, learned counsel for the petitioner/plaintiff consistently pleaded that even without awarding any costs/compensation, the trial Court has exercised its powers while setting aside the ex-parte order and therefore, the impugned order is vitiated in law. 5. Admittedly, the dispute is between the daughter and the mother over the Will dated 24.12.2008. On 30.9.2011, when the I.As. were taken up for hearing, the respondent/first defendant did not appear, and therefore, she was set ex-parte for her non-appearance. Thereafter, she filed two petitions to set aside the ex-parte order, and the trial Court, after taking note of the fact that the suit is between the family members, with regard to the disputing Will and also the suit is for partition, and if the respondent/first defendant is not given an opportunity to contest the matter, then there will be prejudice to her if any order is passed ex-parte, and therefore, the trial Court allowed the I.As. praying to set aside the ex-parte order. 6. It is true that while allowing the I.As. praying to set aside the ex-parte order. 6. It is true that while allowing the I.As. filed for setting aside the ex-parte order, the Court has to take into consideration the other party's prejudice and costs may be awarded by compensating the other side for the prejudice caused. But in the instant case, the Court has not awarded any compensation/costs and it may be for the reason that the dispute is between the family members, namely between the mother and the daughter. Looked at from any angle, in order to give opportunity to the respondent/first defendant to contest the matter and get her right in proper adjudication of the suit, the trial Court has taken the lenient view in allowing the applications. Therefore, I am of the considered view that the findings rendered by the trial Court in allowing the I.As. are in no way contrary to law or there is any manifest error committed by the trial Court while allowing such applications. 7. Therefore, the Civil Revision Petitions stand dismissed. No costs. The Miscellaneous Petitions are closed.