VALLEESWARI Vs. KAMALAKANNAN

JUDGEMENT

(1.) THE first defendant aggrieved by the permission granted to the second defendant to participate in the trial proceedings under Order 9 Rule 7 of C.P.C. prefers the present Civil Revision petition. Quite interestingly, the plaintiff in fact supports the case of the second defendant whose plea for participation in the trial proceeding was accepted by the trial court.

(2.) IN a suit for Specific performance laid by the second respondent herein, the petitioner herein and the first respondent were arrayed as parties. The second defendant who is the first respondent herein remains ex-parte on 28.12.2005. The fact remains that an ex-parte decree passed as against the second defendant. Yet another defendant is contesting the suit filed by the plaintiff. Of course, after a lapse of about four and half years, the second defendant woke up and filed a petition invoking the provision under Order 9 Rule 7 C.P.C. praying to set aside the ex-parte order passed as against him on the sole ground that on account of his age, he could not make his appearance before the trial court. The first defendant who is the revision petitioner herein very strenuously contested the said application on the ground that no good reason as contemplated under Order 9 Rule 7 C.P.C. assigned by the second defendant. Secondly, it was contended that the delay of about four and half years occasioned in filing the petition was not properly explained. Thirdly, it was contended that the second defendant was not at all a necessary party to the suit.

(3.) THE learned counsel appearing for the first respondent/ second defendant would contend that the affidavit filed by the second defendant would disclose that he was 60 years old at the time when the petition was filed by him. It is his contention that in fact the second defendant was 70 years old, but he had by oversight stated his age as 60 years in the affidavit. Even assuming for the sake of arguments that the reason assigned by the second defendant was not good enough to entertain the petition under Order 9 Rule 7 C.P.C., still the Court in the interest of justice can permit the second defendant to participate in the trial proceedings when the trial is pending adjudication. THEre is no limitation to file a petition under Order 9 Rule 7 C.P.C. It is his last submission that the question whether the second defendant is a necessary party to the suit filed by the plaintiff for Specific performance will have to be determined by the trial court and not by the revisional Court. THErefore, he would submit that the trial court has rightly allowed the petition filed by the second defendant.