RAMAMURTHY Vs. MUTHUKRISHNAN

JUDGEMENT

(1.) The civil revision petitioners herein are the applicants in I.A.No.562 of 2008 and the defendants 1 to 3 in O.S.No.306 of 2007, on the file of the learned Additional District Munsiff Court, Thiruvannamalai. The civil revision petitioners have filed an Interlocutory Application in I.A.No.562 of 2008 praying to set aside the ex-parte decree passed against the revision petitioners on 26.07.2007 under Order IX Rule 7 of Civil Procedure Code. In the said application, the revision petitioners/applicants/defendants 1, 2 and 3 have inter alia stated that the applicant is the third defendant in the suit and that on behalf of the first and second defendants, he has filed the above set aside application. The first and second defendants were set ex-parte on 26.07.2007. The applicant/third defendant stated that he was not able to attend the hearing on 30.10.2007 due to his illness and hence he was set ex-parte. Hence, all the civil revision petitioners have prayed to set aside the ex-parte decree, dated 26.07.2007 and 30.07.2007 in O.S.No.306 of 2007.

(2.) In the counter statement filed by the respondents/plaintiffs, it has been stated that the suit was filed for declaration. In the said suit, summons were served on the 12 defendants. Out of the 12 defendants, 4th to 6th defendants have engaged counsels and have filed written statements in the said suit. These revision petitioners/defendants 1 to 3, were called absent on 26.07.2007 and set ex-parte. The first and second defendants have locus standi to defend the case. The PW1 was examined and at this stage the set aside application was filed.

(3.) The plaintiffs are poor. Hence, the defendants, with the malafide intention to drag on the case, have filed this set aside application. In the set aside application, the third defendant has given a sworn affidavit on behalf of the first and second defendants also stating that the third defendant, due to his illness, had not attended the Court on 30.10.2007 and that due to this, an ex-parte decree had been passed against them as no affidavit had been filed in the name of the first and second defendants. The third defendant also had not filed any mechanical certificate to prove his illness. The respondents further stated in their counter statement that the defendants have joined together with the malafide intention to drag on the proceedings and have hence filed this set aside application. The set aside application has not been filed along with condonation delay petition. Hence, the respondents/plaintiffs prayed to dismissed the set aside application.