Under challenge is Ext.P6 common order in I.A.No.
8997/2012 and I.A.No. 8998/2012 in O.S.No. 844/2007.
2. O.S.No.844/2007 was a suit for partition in which the petitioners in the I.A. before the court below were also shown as parties to the suit. They received summons also. They did not contest the matter and an exparte decree came to be passed. Final decree proceedings were taken by the decree holder, wherein the petitioners came forward with a petition to set aside the exparte decree on the ground that they were made to believe that if they did not contest the suit on getting the share by the plaintiff, he would give them a portion of the property. Later on they came to know that they have been deceived and they have been cheated. They therefore came forward with the petition to set aside the exparte decree and also the petition to condone the delay.
3. The court below took evidence on the petitioners.
The evidence consists of the testimony of PW1 and respondent was examined as RW1.
4. There was a delay of 680 days in filing the petition to set aside the exparte decree. Even though the court below was disinclined to believe the reason given for setting aside the exparte decree, the court below was of the opinion that in the facts and circumstances of the case, an opportunity ought to be given to the petitioners before it to contest the suit and therefore, allowed the petition on payment of cost of ₹ 25,000/- on or before 20.09.2014. It is the said order that is assailed before this Court.
5. The learned counsel appearing for the petitioner pointed out that the reason given was disbelieved by the court below and it that be so, there was no justification for the court below to allow the petition. It is significant to notice according to the learned counsel that the petitioners before the court blow have no case that they were not aware of the suit or that they did not receive notice. Their contention on the very face of it is unacceptable and the court below ought not have shown any indulgence to the petitioners.
6. The court always encourages a decision on merits.
May be, what the petitioners stated before the court below may not be completely believable. It is seen that it was based on the Will that the suit was laid and as per the Will, petitioners before the court below are stand disinherited. The issue involved is about the genuineness of the Will. True, the petitioners should have urged their contentions in the first instance itself. Whatever that be, now that the lower court has thought it fit to give them an opportunity and has exercised its discretion in a particular manner and since it is not shown that the discretion exercised is illegal, improper and irregular, the visitorial jurisdiction of this Court need not be exercised.
This petition is without merits and it is accordingly dismissed.
However, it is directed that the court below may make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE