RAJAMANICKAM AND ORS. Vs. ALAMELU AND ORS.

JUDGEMENT

(1.) THE respondents/plaintiffs namely Mrs. Alamelu and R. Madhavan have filed a Civil Suit in O.S. No. 102 of 2004 on the file of Additional District Court at Salem, against the appellants/defendants herein to pass a preliminary decree for partition making provision for passing final decree and they sought the following relief:

(2.) AGGRIEVED by the said ex -parte decree the defendants had filed a supplementary application in I.A. No. 87 of 2005 in O.S. No. 102 of 2004 to set aside the ex -parte decree passed on 03.08.2005. In the said application the second respondent namely R. Madhavan had filed a counter statement and refuted the set aside application. Thereafter, the trial Court dismissed the said application stating that the defendants had filed a set aside application after a lapse of 3 years, as such the defendants have not shown any interest.

(3.) THE very competent counsel had raised a crucial point stating that the mother of the plaintiff had adduced evidence on 22.06.1992 in a Civil Suit in O.S. No. 125 of 1998 on the file of the District Munsif Court. After stating that she wanted to marry the first plaintiff herein namely Alamelu to marry one Selvam. As such, there is no possibility that the marriage was solemnized between the first plaintiff and Venkataraja Konar on 22.08.1991, besides several issues have arisen in the said suit. Therefore, a comprehensive trial is necessary. Further, the ex -parte decree can be set aside at any stage. If the ex -parte decree is set aside, the plaintiffs will not be prejudiced. The appellants had filed CMA. No. SR 88472 of 2011 was dismissed along with M.P. No. 1 of 2011 were dismissed by this Court on 05.11.2012, the same was challenged by the appellants herein before the Hon'ble Supreme Court of India in SLP (C) No. 16050 of 2013, the same was allowed on condition that the appellant herein shall pay a sum of Rs. 50,000/ - as per the order dated the said amount was paid on 11.02.2015 to the Registry of Madras High Court, as such the conditional order enforced by the Hon'ble Supreme Court has been complied within the stipulated period, subsequently, the above appeal has been numbered as CMA. No. 1346 of 2015. The condoned petition was allowed by this Court in order to provide an opportunity for the defendants to face the trial, hence the learned counsel entreats the Court to allow the above appeal and remand the matter to the trial Court to dispose the main case on merits after setting aside the ex -parte decree passed on 03.08.2005.