A PADMAVATHY Vs. BAGYALAKSHMIAMMAL

JUDGEMENT

(1.) THE Civil Revision Petition is filed by the plaintiff challenging the order and decreetal order dated 17.7.2009 passed in I.A.No,300 of 2009 in O.S.No,538 of 2006 on the file of the First Additional District Court, Coimbatore.

(2.) THE revision petitioner/plaintiff filed the suit for partition and separate possession of her 1/7 share. Written statements were by the defendants contesting the suit. THEreafter, it appears that the respondents/defendants were set ex parte. An ex parte preliminary decree was passed on 4.8.2008. THEreafter, the revision petitioner/plaintiff filed I.A.No.158 of 2009 for passing final decree for partition. At this point of time, the respondents/defendants filed I.A.No,300 of 2009 praying to set aside the ex parte preliminary decree dated 4.8.2008. THE court below by order dated 17.7.2009 allowed the application on terms. Aggrieved thereby, the revision petition is filed by the plaintiff.

(3.) IN the affidavit, it has been stated that the suit was posted on 12.6.2008 for framing of issues. Thereafter, it was posted for trial on 4.8.2008. The affidavit further states that by oversight, the date of hearing was noted as 23.8.2008. Therefore, there was no representation on 4.8.2008, when the ex parte preliminary decree was passed against the respondents/defendants. The application for setting aside the ex parte preliminary decree was filed in the very same month after noticing the mistake. On this premise, the court below has accepted the reason for non-appearance and allowed the I.A.No,300 of 2009 and restored the suit on terms. The non-appearance on the first occasion is explained in the affidavit and the court below was satisfied with the explanation. There is no reason to disbelieve the version of the respondents/defendants. The application to set aside is also filed in time. Hence, the court below was justified in showing some indulgence.