KOLANDAIVEL Vs. VELUMANI

JUDGEMENT

(1.) THIS revision has been filed under Section 115 of C.P.C. questioning the legality and sustainability of the judgment and decreetal order of the learned First Additional District Judge, Erode, dated 09.10.2012 made in C.M.A.No.23 of 2012 on the file of his Court. The said Civil Miscellaneous Appeal was preferred against the dismissal of I.A.No.1447 of 2010 in O.S.No.137 of 2005 on the file of the learned Principal Subordinate Judge, Erode. The said application had been filed for setting aside the ex -parte preliminary decree passed in the above said suit on 07.09.2010.

(2.) THE petitioner and respondent in the revision petition are represented by counsel. The arguments advanced by Mr.R.Kannan, learned counsel arguing on behalf of the counsel on record for the petitioner and by Mr.N.Manokaran, learned counsel for the respondent are heard. The materials available on record sent for from the Courts below are also perused.

(3.) SUBSEQUENTLY , the first defendant participated in trial and he chose to lead evidence before ever the plaintiff would lead evidence as he had set up a Will allegedly left by Komarasamy Gounder. After completion of his chief examination, he did not turn up for being cross examined. Hence, an order came to be passed on 05.06.2007 closing his evidence. Again, the petitioner availed the indulgence of the Court when he filed I.A.Nos.445 and 644 of 2007 to reopen the case and for further examination of the first witness on the side of the defendant by allowing those applications. After the said applications were allowed, the revision petitioner was not prepared to proceed with the trial. On the other hand, he chose to file another application I.A.No.636 of 2007 to send for certain documents from Erode Tindalmalai Primary Agricultural Co -operative Bank for the purpose of comparison of the signature of Komarasamy Gounder contained therein with the disputed Will propounded by him. The said application was allowed and the documents were received from the said Bank. After the receipt of those documents, the respondent herein/plaintiff filed I.A.No.146 of 2008 for getting an expert opinion regarding the disputed Will dated 04.04.2004 by referring the same to the Regional Forensic Laboratory. The expert in the Forensic Laboratory gave a report opining that the Will dated 04.04.2004 was a forged one. Subsequent to the same, the revision petitioner failed to appear for continuation of the trial and hence, after setting him ex -parte, ex -parte evidence of the plaintiff was recorded in the form of proof affidavit and the trial Court passed an ex -parte preliminary decree as prayed for by the plaintiff on 07.09.2010.