Heard the learned counsel for the revision petitioner as well as the learned counsel for the respondents and considered their respective submissions.
2.CRP.NPD.No.288 of 2008 has been directed against the order passed in I.A.No.1194 of 2003 in O.S.No.288 of 1998 on the file of the Court of District Munsif, Dharapuram. I.A.No.1194 of 2003 was filed under Section 5 of the Limitation Act to condone the delay of 1547 days in filing a petition under Order 9 Rule 13 to set aside the exparte decree.
3.CRP.NPD.No.289 of 2008 has been directed against the order passed in I.A.No.1195 of 2003 in O.S.No.288 of 1998 on the file of the Court of District Munsif, Dharapuram. I.A.No.1194 of 2003 was filed under Section 5 of the Limitation Act to condone the delay of 1082 days in filing a petition to implead the petitioners as additional defendants 2 to 6 in the said suit.
4.The reasoning stated in the affidavit to the petition filed by the respondents herein / petitioners in I.A.No.1194 & 1195 of 2003 is that their father is the defendant in O.S.No.288 of 1998 and against him an exparte decree was passed on 27.10.1998 and that they are not aware of the exparte decree passed against their father in O.S.No.288 of 1998, which was filed for recovery of possession and that till his death their father had not informed anything about O.S.No.288 of 1998. Accepting the averments in the affidavit in I.A.Nos.1194 & 1195 of 2003 in O.S.No.288 of 1998, the learned trial Judge has allowed the applications on costs of Rs.2000/- and Rs.500/- respectively. Aggrieved by the findings of the learned trial Judge these Revisions have been preferred by the revision petitioner before this court.
5.The learned counsel for the revision petitioner would contend that the respondents herein have filed an false affidavit before the trial Court in I.A.Nos.1194 & 1195 of 2003 in O.S.No.288 of 1998 and they have got knowledge about the suit in O.S.No.288 of 1998. The learned counsel would contend that the respondents' father had filed O.S.No.404 of 1997 for partition of the properties, but the same was dismissed by the trial Court against which he had preferred A.S.No.38 of 1999, which was also dismissed dismissed and in A.S.No.38 of 1999 the respondents herein were impleaded as LRs of their father / plaintiff in O.S.No.404 of 1997, and hence the allegation in the affidavits in I.A.Nos.1194 & 1195 of 2003 that they do not have any knowledge about O.S.No.288 of 2008 cannot be true. But the fact remains that in A.S.No.38 of 1999 the respondents herein were impleaded as LRs of the plaintiff in O.S.No.404 of 1997 / appellant in A.S.No.38 of 1999 only in the year 2000 (I.A.No.134 of 2000 in A.S.No.38 of 1999). A.S.No.38 of 1999 was dismissed on 19.12.2001, but O.S.No.288 of 1998 was decreed as early as on 27.10.1998 itself. There is absolutely no material placed before the trial Court to show that during the pendancy of O.S.No.288 of 1998 the respondents herein were impleaded as LRs of the appellant in A.S.No.38 of 1999. Under such circumstances, as correctly held by the Court below, I am of the view that an opportunity must be given to the respondents herein to defend the case in O.S.No.288 of 1998.
A.C.ARUMUGAPERUMAL ADITYAN, J.
6.In fine, the Revisions are dismissed confirming the orders passed in I.A.Nos.1194 & 1195 of 2003 in O.S.No.288 of 1998 respectively on the file of the Court of District Munsif, Dharapuram. The trial Court is directed to dispose of O.S.No.288 of 1998 within three months from the date of receipt of copy of this order provided the conditions imposed in I.A.No.1194 & 1195 of 2003 are complied with. The learned counsel for the respondents herein represents that the conditional orders passed in I.A.Nos.1194 & 1195 of 2003 have already been complied with. Connected Miscellaneous Petitions are also dismissed. No costs.
03.04.2009 Index :Yes/No Web :Yes/No ssv NOTE:- Issue Today (03.04.2009) To, The District Munsif, Dharapuram.
C.R.P.(NPD).Nos.288 & 289 of 2008 and M.P.Nos.1 & 1 of 2008