Savithri Vs S. Lokanayaki

Revision filed under Section 115 of Civil Procedure Code to call for the records in I.A.No.3 of 2021 in O.S.No.92 of 2015 on the file of District Munsif cum Judicial Magistrate Court, Pallipattu and set aside the order dated 24.04.2024 passed in I.A.No.3 of 2021 in O.S.No.92 of 2015 on the file of District Munsif cum Judicial Magistrate Court, Pallipattu.

¶26

For Petitioner(s): M.Vijaya Kumar For Respondent(s): Mr.A.Anandan Govt.Advocate For R.4 M/s. L.Dhamodharan for R.1 to R.3

¶27

ORDER

¶28

Heard Mr.M.Vijaya Kumar, learned counsel for the petitioners and

¶29

https://www.mhc.tn.gov.in/judis

¶30

Mr.L.Dhamodharan, learned counsel for the contesting respondents/plaintiffs.

¶31

Learned counsel for the petitioners submits that suit for partition was filed

¶32

in respect of the self acquired properties of their father. The petitioners are non-residents of Chennai but, Bangalore and they were totally in dark about the proceedings initiated against the respondents/plaintiffs. Learned counsel also brings to my notice that paper publication was effected at Banglore, but, however, in Tamil vernacular language and the petitioners are not conversant with Tamil and they had no occasion to know about the exparte proceedings.

¶33

Learned counsel for the petitioners also pointing out to the fact that only in the final decree proceedings after notice was served in November 2020, they had engaged the counsel on 18.11.2020 and without any inordinate delay, copy application was filed on 21.12.2020 and copies were made on 28.12.2020 and on 04.01.2021 the application to set aside the preliminary decree has been passed.

¶34

Mr.L.Dhamodharan, learned counsel for the contesting respondents would submit that the petitioners were fully aware of the proceedings and even though the second petitioner was personally served with summons in the suit, she has however joined hands with the other petitioners in respect of whom alone paper publication was effected and they were served by substituted service. He therefore prays for dismissal of

¶35

https://www.mhc.tn.gov.in/judis

¶36

the revision.

¶37

I have carefully considered the submissions of the learned counsel on both

¶38

sides.

¶39

The suit is between blood relatives, viz., Class -I legal heirs of late Rama Mudali. Even in the plaint, it is seen that the petitioners are residing in Bangalore and no doubt, one of them has been served with summons and has not chosen to enter appearance. Subsequent to paper publication being effected in a News Paper, having circulation in the city of Bangalore, the remaining petitioners excepting the 2^nd petitioner, have been set exparte and thereafter, the respondents 1 to 3 have proceeded

¶40

to institute final decree proceedings. It is only in the final decree proceedings the petitioners (except the 2^nd petitioner) became aware of the exparte preliminary decree and thereafter, as pointed out by Mr.M.Vijayakumar, there is no inordinate delay or deliberate inaction on the part of the petitioners in approaching the Court seeking to set aside the exparte preliminary decreed.

¶41

In the light of the above considering that the parties are all closely related, I

¶42

am inclined to give the defendants an opportunity to contest the suit for partition on merits.

¶43

https://www.mhc.tn.gov.in/judis

¶44

Accordingly, the order passed in I.A.No.3 of 2021 dated 24.04.2024 is set aside and the trial court shall frame issues, taking into account the plaint and the written statement filed by the revision petitioners within a period of one week from the date of receipt of a copy of this order and thereafter, shall expedite the trial and dispose of the suit in O.S.No.92 of 2015 on merits and in accordance with law on or before 30.04.2026.

¶45