PONNACHI Vs. RANJITHA BAI

JUDGEMENT

(1.) The petitioners have filed a petition to condone the delay of 263 days in seeking to set aside the ex-parte preliminary decree. The said application was dismissed. Hence, this civil revision petition.

(2.) According to the petitioners, the first respondent-Ranjitha Bai, the plaintiff, who is the sister of the first defendant, filed the suit for partition and separate possession. The petitioners are defendants 4 to 13. Though the Court Guardian was appointed to contest the matter on behalf of minors, on 28.8.2001, ex-parte preliminary decree was passed as against the petitioners and the minors, without service of summons on the petitioners. Only when they received the notice in the final decree application, they came to know on 17.6.2002 through their lawyer that the ex-parte preliminary decree was passed on 28.8.2001. Thereafter, they have filed the application for setting aside the ex-parte decree and also an application in I.A.No.561 of 2002 for condoning the delay of 263 days in seeking to set aside the said ex-parte decree. In the enquiry, the first defendant Selvadoss was examined as P.W.1 and on the death of the said Selvadoss, the present petitioners 11 to 16, namely his widow and children were brought on record. The trial Court, without considering the evidence adduced on the side of the petitioners, dismissed the application, Hence, this Civil Revision Petition.

(3.) Learned counsel for the petitioners, on the strength of the decisions of this Court reported in (i) Devi vs. Jayaraman (2001 (1) M.L.J. 231); (ii) Arunachalam vs. Arunachalam Chettiar (2001 (1) M.L.J. 105); (iii) Karunakaran vs. Santha (2002 (2) M.L.J. 366), (iv) Shanmuga Sadachara Servai vs. Thirugnanam Servai (1999 (II) M.L.J. 616) and (v) Thirumurthy vs. Muthammal (2003 (3) M.L.J. 369), as also the decision of the Supreme Court in Collector, Land Acquisition, Anantnag vs. Katiji (AIR 1987 SC 1353), would contend that even though the respondents did not adduce any proper evidence, the trial Court, without giving any valid reason, dismissed the application. According to the counsel, admittedly the summons have not been served on the petitioners. Therefore, the petitioners have got a valid ground to seek for setting aside the ex-parte decree and the delay may be condoned.