S. KAMALAM Vs. RAJAMANI

JUDGEMENT

(1.) The first defendant in O.S.No.95/2007 on the file of the District Munsif Court, Dharapuram has filed this civil revision petition questioning the correctness and legality of the fair and final order dated 15.04.2009 made in I.A.No.328/2009 in I.A.No.1395/2008 in the above said original suit dismissing the said interlocutory application.

(2.) The respondent herein had filed the suit against the petitioner herein and her minor daughters Jeevitha and Karthika for the relief of partition and separate possession, claiming share in the suit properties. Initially, the petitioner herein, who figured as the first defendant in the suit and who was said to be the guardian of the minor defendants 2 and 3, contested the suit by filing a written statement contending that the respondent herein/plaintiff was entitled to share alone and that the remaining share belonged to the defendants in the suit. However, when the suit stood listed for trial on 03.12.2008, the defendants did not appear and an ex-parte order setting them ex-parte came to be passed by the trial court. Hence the petitioner in the revision/first defendant filed an application in I.A.No.1395/2008 under Order IX Rule 7 CPC to set aside the order dated 03.12.2008 setting her ex-parte and to permit her to contest the case. In the said application, a conditional order was passed by the trial court on 10.12.2008 allowing the said application on condition that the petitioner therein should pay a sum of Rs.200/- as cost to the respondent therein/plaintiff on or before 23.12.2008. As the said cost was not paid on or before the said date, I.A.No.1395/2008 came to be dismissed on 23.12.2008.

(3.) Contending that the revision petitioner was laid up with jaundice from 15.12.2008 and was taking siddha treatment and the same disabled her from meeting her counsel to know about the fate of the case and that only after recovery on 06.04.2009, she could meet her counsel to know that her application I.A.No.1395/2008 had been dismissed for non-compliance with the condition directing payment of Rs.200/- as cost on or before 23.12.2008, the petitioner had filed I.A.No.328/2009 under Sections 148 and 151 CPC for extension of time for payment of the cost awarded in I.A.No.1395/2008.