PREMRAJ Vs. P.PADMINI AMMA

JUDGEMENT

(1.) The petitioner is the first defendant in O.S.No.296/2014 on the files of the Munsiffs Court, Chalakudy. The petitioner was set ex parte on 23.11.2015 as the petitioner was not present before the trial court on that day. Thereafter, ex parte decree was passed by the court below on 30.11.2015. The petitioner filed I.A.No.2532/2015 before the trial court under Order IX Rule 13 CPC. The court below dismissed the said application as per Ext.P4 order inter alia stating that the prayer of the petitioner was only to set aside ex parte order and not ex parte decree. The court below found that since an ex parte decree was passed, the application filed by the petitioner seeking for setting aside ex parte order was not maintainable. In view of the above observation, the petitioner filed I.A.No.501/2016 before the court below under Order IX Rule 13 CPC along with an application to condone the delay of 101 days in filing the said application. That application was dismissed by the court below stating that the earlier application already filed by the petitioner was dismissed by the court below. The appellate court also confirmed the order passed by the court below, against which this original petition has been filed.

(2.) Heard.

(3.) It is not disputed that the suit is for partition. It is also not disputed that the petitioner originally filed an application under Order IX Rule 13 CPC. Order IX Rule 13 CPC provides that in any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. Therefore, there can be no doubt that the application under Order IX Rule 13 CPC filed by the petitioner herein was only for the purpose of setting aside the ex parte decree even though it was stated in the said application that it was for setting aside the ex parte order. It appears that the petitioner had initially filed application under Order IX Rule 13 CPC before the trial court without any delay. Therefore, it can be safely concluded that the petitioner was not grossly negligent in the matter. The reason stated by the petitioner is that the petitioner was under treatment for the eye disease and hence he was not able to appear before the court on 23.11.2015. It is true that there was a delay of 101 days in filing the second application. However, since the petitioner had filed application initially within time, I am of the view that the delay in filing the second application can be condoned. That apart, I find no reason not to accept the reason stated by the petitioner for his absence before the court below on 23.11.2015. That apart, this is a suit for partition. Having gone through the relevant inputs, I am of the view that it is only just and proper to grant one more opportunity to the petitioner to contest the matter on merits. For the said reason, I am inclined to set aside Exts.P3 to P6 orders. It is ordered accordingly.