Judgment : 1. The above second appeal arises against the judgment and decree, dated 29.2.2008, passed in A.S.No.49 of 2006 on the file of the Principal District Judge, Vellore, confirming the judgment and decree, dated 5.1.2005 passed in O.S.No.107 of 1998 on the file of the Subordinate Judge, Tirupattur. 2. The defendants 3 and 4 are the appellants. The third defendant died during the pendency of the second appeal and therefore, her legal representatives were brought on record as appellants 3 to 7. The respondents 1 and 2 were the plaintiffs 2 and 3 and the respondents 3 and 4 were the defendants 1 and 5 in the suit. 3. The plaintiffs filed the suit in O.S.No.107 of 1998 for partition and permanent injunction. 4. Brief case of the plaintiffs are as follows:- a. According to the plaintiffs, the first plaintiff is the wife of late Govindasamy, the second plaintiff is the son of the said Govindasamy and the third plaintiff and the first defendant are the daughters of late Govindasamy. b. According to the plaintiffs, the second defendant is the concubine of late Govindasamy and the defendants 3 and 5 are daughter and son of the second defendant and the said Govindasamy, respectively. c. Originally, the suit properties belonged to one Mari Chettiar, who is the father of late Govindasamy. On 25.6.1957 there was an oral partition between Govindasamy and his brother. The marriage between the said Govindasamy and the first plaintiff took place in the year 1950 and due to the lawful wedlock, the second and third plaintiffs and the first defendant were born. d. The said Govindasamy married one Amirthammal as second wife in the year 1957. In the year 1975, the said Amirthammal had died. During the year 1964, the said Govindasamy had extra marital relationship with the second defendant and lived with her illegally. Due to that illegal contact, the defendants 3 to 5 were born. Therefore, the defendants 2 to 5 have no right in the suit properties. The husband of the first defendant is the brother of the second defendant. Therefore, the first defendant joining along with the defendants 2 to 5, has stated that they are also having right in the suit properties. Hence, there is no cordial relationship between the plaintiffs and the first defendant. e. The said Govindasamy had died intestate on 8.1.1998. The husband of the first defendant is the brother of the second defendant. Therefore, the first defendant joining along with the defendants 2 to 5, has stated that they are also having right in the suit properties. Hence, there is no cordial relationship between the plaintiffs and the first defendant. e. The said Govindasamy had died intestate on 8.1.1998. After the death of the Govindasamy, the plaintiffs and the first defendant are having their share in the suit properties. The plaintiffs and the first defendant alone are the legal heirs of the deceased Govindasamy. The defendants 2 to 5 have no right in the suit properties. After the death of Govindasamy, on several occasions, the plaintiffs requested the first defendant for partition, but the first defendant has not accepted the same. Finally, on 1.6.1998, the plaintiffs requested the first defendant for partition and even on that occasion also, she refused their request. The defendants 2 to 5 have stated that they are also having their share in the suit properties as per the Will executed by the said Govindasamy on 20.5.1993. e. The defendants 4 and 5 tried to trespass into the suit property, however, they have been prevented from doing so. f. As per the Hindu Succession Act, the second plaintiff is entitled for ½ share in the suit properties by birth and in respect of the remaining ½ share only, the said Govindasamy is entitled to execute a Will. g. The defendants 2 to 5 created a forged Will and stated that the suit properties are belonging to them and that they are claiming right over the same. Since the said Will is a forged one and the plaintiffs are not parties to the said Will, they have not claimed any relief against the said Will. h. The second plaintiff alone is paying kist and taxes and the second plaintiff and the first defendant are in joint possession and enjoyment of the suit properties. i. In these circumstances, the plaintiffs have filed the suit claiming 7/8th share in the suit properties and for permanent injunction. 5. Brief case of the defendants 2 to 5 are as follows:- a. According to the defendants, one Mari Chetti had two sons, namely, Govindasamy and Rathinam and three daughters. The said Rathinam had died. i. In these circumstances, the plaintiffs have filed the suit claiming 7/8th share in the suit properties and for permanent injunction. 5. Brief case of the defendants 2 to 5 are as follows:- a. According to the defendants, one Mari Chetti had two sons, namely, Govindasamy and Rathinam and three daughters. The said Rathinam had died. The first plaintiff is the wife of the said Govindasamy and her son is the second plaintiff and the third plaintiff and the first defendant are her daughters. b. The second defendant married the said Govindasamy and the children born to them are legitimate. On 20.5.1993, the said Govindasamy had executed a Will in a sound state of mind in favour of the defendants 4 and 5 with certain conditions. The said Govindasamy had died on 8.1.1998, i.e., after 4 ½ years from the date of execution of the said Will. c. As per the Will, the defendants 4 and 5 are in joint possession and enjoyment of the same. The defendants 4 and 5 have perfected their title by peaceful, continuous and uninterrupted possession. Except the defendants 4 and 5, others have no right in the suit properties. d. It is false to state that the defendants 3 to 5 born to the said Govindsamy are illegitimate and therefore, they are not entitled to any right in the suit properties. It is also false to state that the patta stands in the name of the second plaintiff. In these circumstances, the defendants prayed for the dismissal of the suit. 6. Before the trial court, on the side of the plaintiffs, the second plaintiff was examined as P.W.1 and Exs.A1 to A5 were marked, whereas on the side of the defendants, fourth defendant was examined as D.W.1 in part and thereafter, since the fourth defendant did not appear for further examination, the trial Court proceeded to decide the suit on merits and decreed the same. 7. Aggrieved over the judgment and decree of the trial Court, the defendants 2 to 4 have preferred an appeal in A.S.No.49 of 2006 on the file of the Principal District Judge, Vellore and the lower appellate court confirmed the judgment and decree of the trial court and dismissed the appeal. 8. Aggrieved over the judgment and decree of the courts below, the legal representatives of the third and fourth defendants have filed the above second appeal. 9. 8. Aggrieved over the judgment and decree of the courts below, the legal representatives of the third and fourth defendants have filed the above second appeal. 9. In the grounds of second appeal, the following substantial questions of law were framed:- a. Whether the Courts below are right in invoking the provisions of Order 17 Rule 3, when the facts of the case clearly falls under Order 9 Rule 6 or Order 17 Rule 2, i.e., whether a decree on merits could be legally given, when the defendants have discontinued the trial half way through, giving a finding as if the defendants have not proved their case with reference to Will and performance of last rites by D3 to D5? b. Whether the Courts below are right in not giving a share to D3 to D5 when it has been admitted that D3 to D5 are illegitimate children born to the common ancestor namely, Govindasamy? c. Whether the Courts below are right in giving a finding that the defendants 2 to 5 have not proved their case, after setting them ex parte? 10. However, on a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that the main issue involved in the present second appeal is whether the courts below are right in deciding the suit on merits when the evidence of the fourth defendant is in half way and that the decision of the courts below is correct and proper? 11. Heard M/s. S. Subbiah, learned counsel appearing for the appellants and Mr. Jeevasridharan, learned counsel appearing for the respondents. 12. Mr. S. Subbiah, learned counsel appearing for the appellants has submitted that when the defendants did not appear before the trial court, it should have set the defendants ex parte and an ex parte decree should have been passed and it should not have passed the judgment and decree on merits under Order 17 Rule 2 C.P.C. 12. 12. Mr. S. Subbiah, learned counsel appearing for the appellants has submitted that when the defendants did not appear before the trial court, it should have set the defendants ex parte and an ex parte decree should have been passed and it should not have passed the judgment and decree on merits under Order 17 Rule 2 C.P.C. 12. In support of his contention, the learned counsel relied upon the following decisions:-a. In B. Janakiramaiah Chetty vs. A.K. Parthasarthi and others (2003) 5 SCC 641 ), the Apex Court held that in case of failure of a party to appear on a date of hearing, court has discretion to proceed with the case on being prima facie satisfied on facts of the case that evidence on record is sufficient to substantiate the absentee party's stand and for the disposal of the suit. aa. Further, the Apex Court held that court must record its satisfaction and in the absence of any indication as to what evidence was evaluated and/or whether merits were tested, decree passed by the court is in the nature of an ex parte and hence, it is liable to be set aside under Order 9 Rule 13 C.P.C. b. In Soopi Haji and others vs. R.M. Ramanathan Chettiar ( 1993(1) MLJ 644 ), a Division Bench of this Court has held that if one of the parties was absent on the date of hearing, the suit can be disposed of only under Rule 2 and not under Rule 3 of Order 17 C.P.C. If a party's evidence is already on record or substantial portion of the evidence of that party has already been taken and only a negligible part of the evidence is left out and such party has failed to appear, the court may proceed with the case as if that party were present. If evidence of a party has not been taken at all and if some evidence has been taken, but substantial portion of the evidence of that party is yet to be taken and that party is absent, the Explanation shall not enable the Court to proceed with the case, in the absence of that party, but to proceed to dispose of the suit in one of the modes directed in that behalf by O.9 or to make such other order, that is to say, adjourn again for another date or take such steps as would ensure the appearance of the parties and their evidence. c. In T. Kalyanasundaram vs. M.S. Arumuganayakar ( 2005 (4) CTC 451 ), a Division Bench of this Court has held that when the defendant was absent on the adjourned date, the provisions of Order 17, Rule 2 alone stood attracted and the court could have proceeded only under Order 9 and an ex parte decree can be passed and the court could not have passed the decree on merits. The decree of the trial Court could only be considered as ex parte decree and the application filed by the defendant under Order 9, Rule 13 to set aside the ex parte decree was maintainable. d. In Parmanand vs. Bajarang and another ( (2001) 7 SCC 705 ), the Apex Court has held that unless the defendant has been given an opportunity to adduce evidence, the suit ought not to be decreed or dismissed. Since no opportunity was not given to the defendant to adduce evidence, the High court should have remanded the suit instead of disposing of it. 13. There is no dispute with regard to the ratios laid down in the judgments relied upon by the learned counsel for the appellants. 14. It is pertinent to note that on 2.8.2004, the chief examination of D.W.1 was taken in part and for the continuation of his chief examination, at the request of the defendants' counsel, the case was adjourned to 4.8.2004. On 4.8.2004, the matter was again adjourned to 5.8.2004. From the "B" Diary endorsements, it could be seen that on 4.8.2004 and 5.8.2004, there was boycott by advocates and thereafter, the matter was adjourned periodically. The learned counsel for the appellants submitted that the boycott continued for several days. 15. On 4.8.2004, the matter was again adjourned to 5.8.2004. From the "B" Diary endorsements, it could be seen that on 4.8.2004 and 5.8.2004, there was boycott by advocates and thereafter, the matter was adjourned periodically. The learned counsel for the appellants submitted that the boycott continued for several days. 15. It is not in dispute that the fourth defendant was working in the army and since he could not get leave, he was forced to leave Tirupattur on 17.8.2004. Thereafter, in the month of December, 2004, an application was filed on his behalf for adjournment stating that the fourth defendant has no leave and therefore, he had to return to duty and hence, the matter may be adjourned. However, the adjournment petition was dismissed by the trial Court and the evidence on the side of the defendants was closed and the trial court proceeded to decide the suit on merits under Order 17 Rule 2 C.P.C. 16. Having regard to the judgments relied upon by the learned counsel for the appellants and the submissions made by the learned counsel on either side, I am of the considered view that it is understandable that since the fourth defendant is working in the army, he cannot avail leave as and when he wishes. Therefore, the non appearance of the fourth defendant at the time of trial is understandable. Even in that event, the trial court could have set him ex parte and an ex parte decree could have been passed, instead of deciding the matter on merits under Order 17 Rule 2 C.P.C. 17. Though the defendants had made so many averments in the written statement relying upon the Will, dated 20.5.1993, they have not produced the same before the trial court at the time of the chief examination of the fourth defendant. Probably, the fourth defendant would have thought that the Will could be produced on the next date of hearing, since his chief examination was not completed on 28.7.2004. Probably, the fourth defendant would have thought that the Will could be produced on the next date of hearing, since his chief examination was not completed on 28.7.2004. Therefore, when the defendants solely relied upon the alleged Will for claiming their right over the suit properties, unless it is proved that the alleged Will is a genuine one and legally a valid one or otherwise through both oral and documentary evidence, the trial court should not have proceeded to decide the matter on merits, instead, the trial court could have set him ex parte and an ex parte decree could have been passed. 18. That apart, the plaintiffs have made several allegations and averments as against the defendants 2 to 5 which would affect the social status of the defendants. Taking into consideration of all these aspects, the courts below could have given an opportunity to the fourth defendant to let in evidence and then could have decided the suit on merits. 19. Therefore, in these circumstances, I am of the considered view that the defendants should be given an another opportunity to let in evidence before the trial Court. In these circumstances, without expressing any opinion on the merits of the case, I set aside the judgment and decree of the courts below and remit the matter back to the trial court. 20. The trial court, namely, the Subordinate Court, Tirupattur, on receipt of the papers shall issue notice to the parties and give an opportunity to them to let in evidence both oral and documentary based on the available pleadings and decide the matter afresh on merits within a period of three months from the date of receipt of a copy of this order. 21. With the above direction, the second appeal is allowed setting aside the judgment and decree of the courts below. However, there will be no order as to costs. Connected M.Ps. are closed. 22. Further, the learned counsel on either side submitted that the parties may be directed to maintain the status quo till the disposal of the suit by the trial court. 23. In view of the above submission, the parties to the suit are directed to maintain the status quo till the disposal of the suit. 24. Connected M.Ps. are closed. 22. Further, the learned counsel on either side submitted that the parties may be directed to maintain the status quo till the disposal of the suit by the trial court. 23. In view of the above submission, the parties to the suit are directed to maintain the status quo till the disposal of the suit. 24. The learned counsel for the appellants has also submitted that M.P.No.3 of 2013 has been filed to receive the documents as additional evidence and since the same has been withdrawn, a direction may be given to the Registry to return the original documents to the appellants. 25. Since the M.P.No.3 of 2013, which has been filed to receive the documents as additional evidence in the above second appeal, has been dismissed as withdrawn, the Registry is directed to return the original documents filed by the appellants in M.P.No.3 of 2013 forthwith to file the same before the trial court.