Madras High Court
Balakrishnan vs Navaneetha Krishanan ... 1St on 25 July, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.M.A.(MD).No.792 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.07.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.792 of 2017
and
C.M.P.(MD) No.8563 of 2017
1. Balakrishnan
2. Radhakrishnan ... Appellants/Petitioners/
Defendants No. 1 and 2
-vs-
1. Navaneetha Krishanan ... 1st Respondent/1st Respondent/
Plaintiff
2. Mangathayammal
3. Ramasubbu
4. Subbaiah ... Respondents 2 to 4/
Respondents 2 to 4/
Defendants 3 to 5
PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule 1 (d) of
C.P.C., against the fair and decreetal order dated 09.02.2017, passed in
I.A.No.322 of 2016 in O.S.No.32 of 2012, on the file of the Principal District
Court, Tirunelveli.
For Appellants : Mr.F.X.Eugene
For Respondents : No appearance
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C.M.A.(MD).No.792 of 2017
JUDGMENT
The present Civil Miscellaneous Appeal has been filed by the defendants 1 and 2 in O.S.No.32 of 2012, on the file of the Principal District Court, Tirunelveli, challenging the dismissal of an application filed under Order 9 Rule 13 of C.P.C.
2. The first respondent herein has filed the above said suit for the relief of declaration that the partition deed dated 19.04.2012 as null and void and to effect partition afresh. The defendants have filed a detailed written statement. When the suit was posted for cross examination of P.W.1 on 17.08.2016, the defendants could not cross examine them and it was adjourned to 07.09.2016. An ex-parte decree came to be passed by the Court on 07.09.2016. An application was filed in I.A.No.322 of 2016 on 05.10.2016 seeking to set aside the ex-parte decree. The said application has been dismissed by the trial Court. Challenging the same, the present appeal has been filed.
3. According to the learned counsel appearing for the appellants, within 30 days from the date of passing of the ex-parte decree, the application has been filed and therefore, the application should have been considered by the https://www.mhc.tn.gov.in/judis 2/5 C.M.A.(MD).No.792 of 2017 Court. However, the trial Court has proceeded to dismiss the application on the ground that it is the second time the defendants have been set exparte. The learned counsel appearing for the appellant had further contended that since the brother of the plaintiff who was taking care of the case, had left abroad immediately, and the petitioners could not give any instructions to the counsel for cross examination of P.W.1. Hence, he prayed for allowing the appeal.
4. The first respondent in the appeal, who is the plaintiff in the suit represented through his counsel. The arguments on the side of the appellants were heard on 23.07.2024. Since there was no representation on the side of the respondents, it was adjourned to 25.07.2024 to hear the submissions on the side of the respondents. Even today, there is no appearance on the side of the respondents and this Court is constrained to pass orders on merits, after hearing the learned counsel appearing for the appellants.
5. The prayer sought for in the suit reveals that partition has already taken place between the parties on 19.04.2012 and the said document is sought to be set aside in the suit and fresh partition has been prayed for. The defendants have filed a detailed written statement in the suit. In such https://www.mhc.tn.gov.in/judis 3/5 C.M.A.(MD).No.792 of 2017 circumstances, the trial Court ought not to have rejected the request of the defendants to set aside the exparte decree.
6. Considering the above said facts, this Civil Miscellaneous Appeal stands allowed and the parties are directed to cooperate for expeditious disposal of the suit. Considering the fact that the suit is of the year 2012, the trial Court is directed to dispose of the suit in O.S.No.32 of 2012 on or before 31.01.2025. There shall be no order as to costs. Consequently, connected Miscellaneous Petition stands closed.
25.07.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Principal District Court,
Tirunelveli.
2. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD).No.792 of 2017
R.VIJAYAKUMAR,J.
ebsi
C.M.A(MD)No.792 of 2017
25.07.2024
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