This Civil Revision Petition is filed as against the order passed by the learned District Munsif cum Judicial Magistrate, Vadipatti in I.A.No.75 of 2016 in I.A.No.401 of 2015 in O.S.No.127 of 2010, dated 06.06.2017.
2.The first respondent/plaintiff filed the suit in O.S.No.127 of 2010 before the District Munsif Court, Vadipatti, for the relief of partition, claiming 1/5th share in the suit schedule properties. The petitioners/defendants, the father of second and third respondents and the first respondent/the plaintiff are brothers and sister. Since the brothers of the first respondent/plaintiff refused to give her 1/5 th share and alienated 16 suit schedule properties, the plaintiff filed the suit. The petitioners/defendants have not filed their written statements for five years and also there was no representation for them and hence they were set exparte and exparte preliminary decree was also passed on 2/10 https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.428 of 2018 27.02.2014. Hence, the petitioners/defendants filed the application in I.A.No.401 of 2015 to set aside the exparte decree with a delay of 450 days and the same was dismissed on 02.02.2016. Thereafter, I.A.No.75 of 2016 was filed for restoration of I.A.No.401 of 2015. The trial Court by its fair and decreetal order, dated 06.06.2016 dismissed the said application. Aggrieved over the same, the present Civil Revision Petition is filed on the following grounds:
i. The fair and Executable order passed by the lower Court in I.A.No.75 of 2016 in O.S.No.127 of 2010 is against law. ii. The lower Court has miserably erred in dismissing the application in I.A.No.75 of 2016 in O.S.No.127 of 2010. iii. The lower Court failed to consider the settled principal of law that the respondent should be given an opportunity to contest the case on merits.
3/10
https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.428 of 2018 iv. The lower Court ought to have allowed the application in I.A.No.75 of 2016 and thereby ought to have given an opportunity for the petitioners/defendants to contest the case on merits.
v. The lower Court ought to have allowed the application in I.A.No.75 of 2016 and thereby erred in dismissing the application for restoration filed to restore the application in I.A.No.401 of 2015, which was dismissed for default by the lower Court.
vi. In any event, the reasons evicted by the lower Court, for dismissing I.A.No.75 of 2016 in O.S.No.127 of 2010 are not convincing and the order is liable to be set aside.
3.The learned counsel appearing for the first respondent/plaintiff submits that the petitioners, father of the respondents 2 & 3 and the first respondent are brothers and sister and 4/10 https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.428 of 2018 all of them are having 8 acres of house site property valuing Rs.20,00,00,000/- as undivided Hindu Joint Family Property and all are coparceners. Since the first respondent/plaintiff is entitled for 1/5th share and her brothers refused to give her share and also before filing of the suit, her brothers alienated 16 suit schedule properties, the first respondent left with no other option filed the suit in O.S.No.127 of 2010. The petitioners /defendants have not filed their written statements for five years. Subsequently, in their absence, an exparte decree was passed on 27.02.2014. When the final decree in I.A.No.11 of 2015 reached finality, the respondents 1 to 3 filed restoration petition along with condone delay petition in I.A.No.401 of 2015. Even in the said application, the petitioners/defendants did not appear and hence, it was dismissed for default on 02.02.2016. Thereafter, the petitioners/defendants filed an interlocutory application in I.A.No.75 of 2016 for restoration of I.A.No.401 of 2015. As there was no proper reason found in I.A.No.75 of 2016 for their absence on 02.02.2016, the 5/10 https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.428 of 2018 trial Court dismissed the said application. As against the said dismissal order, the petitioners have preferred the present Civil Revision Petition only during 2018, after 1 ½ years. Even in this Revision Petition, the petitioners did not pay batta and they have not taken any steps for service of notice. The learned counsel further submits that the petitioners/defendants have alienated 33 suit schedule properties by way of registered sale deeds, after filing of this Civil Revision Petition. Hence, it is clear that the petitioners continuously drag on the proceedings by adopting the delay tactics in every stage of the suit. Therefore, there is no need to interfere with the order of the trial Court.
4.This Court considered the rival submissions made on either side and also perused the materials placed on record.
5.Admittedly, the petitioners/defendants, the father of second and third respondents and the first respondent/the plaintiff are 6/10 https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.428 of 2018 brothers and sister. The first respondent/plaintiff filed the above suit in the year 2010, for partition, claiming 1/5th share of the suit schedule properties of her father Ponnusamy. It is to be noted that the Revision petitioners/defendants did not file their written statements for five years. Also, there was no representation for the defendants on 27.02.2014 and hence they were set exparte and exparte preliminary decree was also passed on 27.02.2014. The petitioners/ defendants filed an application to set aside the exparte decree with a delay of 450 days in I.A.No.401 of 2015 and the same was dismissed for default on 02.02.2016, due to their absence. Thereafter, I.A.No.75 of 2016 was filed to restore I.A.No. 401 of 2015. The trial Court has held that there was no proper reasons for the defendants' absence on 02.02.2016 and dismissed the application on merits on 06.06.2016. This Civil Revision Petition has also been filed by the petitioners/defendants as against the dismissal order passed in I.A.No.75 of 2016, dated 06.06.2016, after 1 ½ years. This Court is of the view that the petitioners have adopted the 7/10 https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.428 of 2018 delay tactics in contesting the above suit at different stage of the suit in order to deny the properties to their sisters.
6.The first respondent, who is the sister of the petitioners filed the above suit in the year 2010. As per Order VIII Rule 1 of the Code of Civil Procedure, the petitioners/defendants ought to have filed their written statements within a period of 90 days. However, they did not file their written statements even after 5 years from the date of filing of the suit and they also allowed the suit to set exparte. Further, they also said to have alienated some of suit schedule properties pending the suit. The petitioners have also filed an application to set aside the exparte decree with the delay of 450 days and also allowed the same for dismissal for default. Thereafter, they have filed another application for restoration even without assigning any valid reasons, which was dismissed by the trial Court. This revision petition was filed as against the said dismissal order with the delay of 582 days. The 8/10 https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.428 of 2018 respondent/Plaintiff claims that pending this civil revision petition, the petitioners have alienated some other properties also.
7.Considering the conduct of the petitioners, this Court is not inclined to entertain this Civil Revision Petition as against the order of Trial Court. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
11.11.2022 Index : Yes / No. Internet : Yes / No. vrn To The District Munsif Court cum Judicial Magistrate Court, Vadipatti. 9/10 https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.428 of 2018 B.PUGALENDHI, J.
vrn Order made in CRP(PD)(MD)No.428 of 2018 11.11.2022 10/10 https://www.mhc.tn.gov.in/judis