MUTHULINGAM Vs. GANGAI AMMAL

JUDGEMENT

(1.) The above civil revision petition has been directed against the order of the learned District Munsif-cum-Judicial Magistrate, Kattumannarkoil dated 13.11.2000 in I.A.No. 304 of 2000 in O.S.No. 18 of 2000 wherein the learned Judge set aside the ex parte order dated 20.12.1999 passed against the third defendant.

(2.) The petitioner herein instituted a civil suit in O.S.No. 1083 of 1988 on the file of the District Munsif, Chidambaram against the respondent herein and 3 others for partition and separate possession of his 1/3rd share in the suit properties. Except the third defendant, other defendants entered appearance through their counsel and filed written statement. Since the third defendant was said to be residing at Singapore, summons were taken to his Singapore address. Since summons were returned unserved because the third defendant was not at Singapore, at the request of the plaintiff, the learned District Munsif, Chidambaram granted service of noiice of publication in Tamil daily; accordingly paper publication was effected in 'Dina Malar', Cuddalore edition having circulation where the suit properties are situated and also at Pondicherry Since third defendant did not appear, he was set ex-parte on 20.12.1999. After the formation of the District Munsif-cum-Judicial Magistrate's Court at Kattumannarkoil, on administrative grounds, the suit was transferred to that Court from the District Munsif's Court, Chindambaram and renumbered as O.S.No. 18 of 2000. According to the petitioner/plaintiff, since the third defendant has no objection for partition and separate possession of his 1/ 3rd share in the suit properties, he has not chosen to enter appearance and file written statement before the Court below. The suit was proceeded with trial and was posted for arguments. It is further seen that the counsel appearing for the plaintiff argued the matter and the case was adjourned for the defendants' argument. When the matter was posted for judgment on 28.1.2000, the first defendant/ respondent herein filed an application in I.A.No. 304 of 2000 under Section 151, C.P.C. to set aside the ex-parte order passed against the third defendant on 20.12.1999 on the ground that the publication in the newspaper was effected only in India and not in Singapore and consequently the said order is bad. The petitioner herein resisted the said application contending inter alia that the ex- parte order can be set aside only at the instance of the third defendant against whom the order was passed and not at the instance of the first defendant. He also contended that the third defendant has no objection for partition of the suit property and only to protract the proceedings the 1st defendant filed the present application. The learned District Munsif on an erroneous view allowed the application and set aside the ex parte order passed against the third defendant on 20-12-1999 and directed him to take fresh summons for 3rd defendant to his Singapore address. Hence the plaintiff has filed the present revision before this Court.

(3.) Pursuant to the notice ordered by this Court, respondent is represented by a counsel.