KRISHNAN Vs. UMADEVI

JUDGEMENT

(1.) THIS appeal arises from a suit for partition. The plaint was presented on 6.4.1993 and filed on 7.4.1993. The plaintiffs' right to claim partition was challenged by all among the defendants except defendant No.9, who supported the plaint claim. Issues were settled and the matter was included in the special list on 1.7.1996 for trial. The plaintiffs were ready. The contesting defendants' counsel was laid up. It is stated that she was carrying and had fallen sick. The case was adjourned to 5.7.1996 to make alternate arrangements. On 5.7.1996, the court recorded that the defendants' counsel was not present and adjourned the case to 8.7.1996. On that day, noticing the absence of the contesting defendants, P.W.1 was examined on behalf of the plaintiffs and Exts.A1 to A6 were marked. These facts are disclosed by the 'B' diary also. On the basis of such uncontroverted testimony, the impugned preliminary decree for partition was granted. As recorded by the court below, even the witness for the plaintiffs was not cross-examined on behalf of the contesting defendants.

(2.) WE have looked at the written statement of the contesting defendants as well. They even challenged the geneology, on the basis of which the plaintiffs claimed right to partition. WE are satisfied that if the impugned preliminary decree is allowed to stand, it will result in miscarriage of justice and the contesting defendants would stand to be condemned unheard. WE are pained that this first appeal filed in October, 1997 is being disposed of only today, that too, by an unavoidable order of remand. In the result, we set aside the impugned preliminary decree and remit the suit for re-trial and disposal in accordance with law. WE direct the parties to appear before the court below on 1st January, 2011. Since the suit was filed way back in 1993, we request the learned Subordinate Judge to give priority for including this case in the appropriate list for trial and disposal. WE desist from passing an order of costs, though sought for by the plaintiffs, taking into consideration the fact that the appeal arises from a suit for partition.