KARAPPUSAMY PILLAI AND OTHERS Vs. SWAMI SUBRARNANIA CHETTIAR

JUDGEMENT

(1.) The defendants 3 to 8 in OS. No. 274 of 1989 on the file of the learned Subordinate Judge, Coimbatore, are the appellants. The plaintiff is the respondent. This appeal is directed against the order made in IA. No.1266 of 1992 in OS. No.274 of 1989 on the file of the above said Court dismissing the application filed under Order 9, Rule 13 and Sec. 151 Civil Procedure Code and refusing to set aside the ex parte decree passed in the suit.

(2.) The suit is for declaration of the plaintiff's right as reversioner of the last male holder of Nagappa Chettiar and also for a declaration that the alienation made by the first defendant and Thangammal in favour of a second defendant and consequential alienation by the 2nd defendant in favour of the 3rd defendant and settlement by the 3rd defendant in favour of defendants 4 to 8 by sale deeds dated 22-3-1955. 23-3-1955, 31-1-1962 and 9-9-80 are not valid and binding on the plaintiff and the reversionary estate of late Nagappa Chettier and also for a direction to the defendants 2 to 8 or such of the defendants who are found to be in possession to deliver possession of the suit property to the plaintiff and for a direction to the defendants 2 to 8 or such of them who are found to be liable to pay mesne profits to the plaintiff from the date of delivery till delivery of possession on such rates as may be determined by the trial court. The suit was presented by the plaintiff as OP. No. 251/87 on 19th August, 1987 as an indigent person. He was permitted to file the suit as an indigent person by order of the trial court. The third defendant filed a counter and contested the matter regarding the pauperism. In the OP. No.251/87 as stated above, the plaintiff was allowed to sue as an indigent person by order dated 20-3-89. The appellants herein filed CRP No. 8547/89 against that order and that revision petition was dismissed by this court on 11-6-91. Thereafter the case was posted for filing written statement by the defendants. The suit was decreed ex parte on 25-3-1992. The defendants 3 to 8 filed IA. No. 1266/92 under Order 9 Rule 13 and Sec. 151 Civil Procedure Code on 7-4-92 for setting aside the ex parte decree. In the affidavit filed by the third defendant in I A. No. 1266/1992 it is stated as follows:-

(3.) The defendants 4 to 8 are the sons of the third defendant and the third defendant is filing the affidavit on behalf of himself and the defendants 4 to 8. Their counsel had sent a letter to them to contact him to instruct and to file written statement. Since their clerk misplaced the advocate's letter in their office, they could not contact the counsel. Further, the third defendant was also a way from Coimbatore in connection with their textile business for nearly two months.Only on 6-4-92 when he contacted his counsel he informed him that the trial court was pleased to pass an ex parte decree against them on 25-3-1992. They were neither negligent nor careless, and they have got a good chance of success in the suit and unless the ex parte decree passed against them is set aside, they would be put to very great loss and hardship.