This Civil Revision Petition is focussed as against the fair and decreetal order dated 18.03.2005 passed in I.A.No.41 of 2005 in O.S.No.29 of 2000 on the file of the learned Subordinate Judge, Kuzhithalai.
2. Heard both sides.
3. A re'sume' of facts absolutely necessary and germane for the disposal of this Civil Revision Petition would run thus:
The respondents/plaintiffs filed the suit in O.S.No.29 of 2000 before the learned Subordinate Judge, Kuzhithalai for partition citing the revision petitioner as D2. The revision petitioner/D2 also filed the written statement; however he could not appear during trial for cross-examining PW1. Thereupon the revision petitioner/D2 was set ex-parte. An application was filed in I.A.No.41 of 2005 under Order IX, Rule 7 of C.P.C. to get set aside the ex-parte order passed as against him, whereas it was dismissed.
4. Being aggrieved by and dissatisfied with such an order, the present Civil Revision Petition is focussed on the ground that the revision petitioner/D2 was not willful or wanton in absenting himself during trial; owing to circumstances beyond his control, he could not appear on the date; and there was no intention to drag on the proceedings on the part of the revision petitioner/D2.
5. The point for consideration is as to whether there is any infirmity in the order passed by the trial Court in dismissing the said I.A.No.41 of 2005 in O.S.No.29 of 2000 filed under Order IX, Rule 7 of C.P.C.?
6.On point:
Heard both sides.
7. The perusal of the order of the lower Court would reveal that according to it the revision petitioner/D2 had not taken steps to cross-examine PW1; the Advocate for the revision petitioner/D2 did not appear and no petition also was filed seeking adjournment on his behalf.
8. In the suit for partition, already the revision petitioner/D2 filed the written statement. D1 is contesting the matter. Hence, in such a case, I am of the considered opinion that instead of taking a technical view on the issue, the trial Court could have given one more opportunity to the revision petitioner/D2 to cross-examine PW1.
9. The learned counsel for the revision petitioner/D2 would convincingly submit that on 10.03.2005, PW1 was examined and the matter was posted on the next day for PW1 being cross-examined and because of the default committed by the revision petitioner/D2 on that day in cross-examining PW1, the trial Court had set him ex-parte.
10. As such, the narration of facts would demonstrate that there was no malafide intention on the part of the revision petitioner/D2 in dragging on the proceedings. Hence, I am of the considered opinion that one more opportunity could be given to the revision petitioner/D2 to cross-examine PW1.
11. In the result, the Civil Revision Petition is allowed and the impugned fair and decreetal order are set aside and the I.A.No.41 of 2005 in O.S.No.29 of 2000 on the file of the learned Subordinate Judge, Kuzhithalai shall stand allowed. No costs. Consequently, connected Miscellaneous Petition is closed.
smn To The Subordinate Judge, Kuzhithalai