S. JAYAKUMAR AND Vs. K. KANDASAMY GOUNDER

JUDGEMENT

(1.) This revision has arisen from the order of the learned Subordinate Judge, Udumalpet, dismissing an interlocutory application filed by the petitioners herein for rejection of the plaint in O.S.No.278 of 1999.

(2.) It was a suit filed by the respondent herein for division of plaint 'A' schedule property into two equal shares and put the plaintiff in possession of one such share and for declaration and possession, apart from mesne profits and appointment of commissioner The instant application has been filed by the petitioners herein seeking for rejection of the plaint filed in the said suit. On contest by the respondent herein, the said application was dismissed by the lower court. The dismissal of the sam e has culminated in this revision.

(3.) The learned Counsel appearing for the petitioners would submit that the lower court has erred in taking into account the facts that O.S.No.394 of 1990 was filed by the respondent herein for declaration, for partition and for delivery of possession that the said suit was dismissed for default on 15.3.1993; that an application in I.A.No.979 of 1993 was filed by the respondent for restoration of the same; that the said suit was ordered to be restored subject to payment of costs of Rs.250/ -; that the respondent did not comply with the said order, and hence, the dismissal of that suit has become final; that suppressing all the above factual aspects, the respondent herein filed the instant suit in O.S.No.278/99; that the lower court failed to observe that the present suit is filed after a lapse of six years from the date of dismissal of the earlier suit; that the court below failed to note that the proposition put forward by the trial Judge applies only to final decree proceedings in a partition suit a nd not for the institution of the suit itself; and hence, the order of the lower court rejecting the petition has got to be set aside.