S SWAMINATHAN Vs. S MURUGAN

JUDGEMENT

(1.) The Revision Petitioners are defendants in the suit in O.S.No.282 of 2011 on the file of the learned Additional Sub-Court, Tirunelveli filed by the respondent herein for the relief of partition and separate portion of his 1/3rd share in the suit property. The 1st Petitioner is the purchaser of the property from the father and brother of the respondent herein. The Respondent claims that the suit property is an ancestral property and as such the sale executed by his father and brother will not bind on him and prayed for partition.

(2.) The Petitioners have filed written statement denying right and title of the respondent and also pleaded that the suit is not maintainable. Later on the petitioners came to know that the pleading regarding non-joinder of father and brother of the respondent and other co-owners are not added as parties and also all the properties of the family not included in the suit, hence the petitioner filed an additional written statement with an application seeking leave in I.A.No.679 of 2015 and the same was opposed by the respondent herein. The Trial Court dismissed the petition on giving a finding that the affidavit filed along with the petition does not say about the important points omitted in the written statement and not even a prayer available to read the additional written statement filed along with petition as part and parcel of the affidavit and no reason also assigned why the above plea was omitted in the written statement and thereby refused to receive the additional written statement. As against the same the C.R.P.No.1144 of 2016 is filed. Though the petitioner prayed for stay this court ordered notice on 15.06.2016 without granting any stay.

(3.) The suit was at the stage of examining the defendants side witness and the defendant did not produce any witness but represented that the C.R.P.No.1144 of 2016 is pending and sought adjournment. As the petitioners did not adduce any evidence and there was no representation on 19.09.2016 and the trail court passed an order setting the defendant as ex-parte and posted the case for arguments of plaintiff. Thus the petitioners have filed petition to set aside the ex-parte order on 29.09.2016 in I.A.No.713(a) of 2016. The said petition was opposed by the respondent and the Trial Court dismissed the same on 31.01.2018 stating that the petitioners are not willing to proceed with the suit and prolonged the same citing the pendency of C.R.P.No.1144 of 2016. As against the dismissal of set aside the ex-parte order the C.R.P.No.466 of 2018 is filed.