CIVIL APPEAL 5854 of 2012 on 15 October 2012

Arguments

ORDER:

The Civil Revision Petition is filed under Article 227 of the Constitution of India, against the order dated 15.10.2012 passed in I.A.No.334 of 2012 in O.S.No.48 of 2008 by the Senior Civil Judge, Parchur, dismissing the petition filed under Order IX Rule 7 of the Code of Civil Procedure seeking to set aside the ex parte order dated 03.06.2009.

The revision petitioner herein is the 4[th] defendant in the suit filed for partition. The revision petitioner was added as 4[th] defendant being the legal representative of the deceased 1[st] defendant, as he is no other than son of the deceased 1[st] defendant and the 2[nd]defendant. He was set ex parte on 03.06.2009. The revision petitioner filed I.A.No.334 of 2012 in O.S.No.48 of 2008 under Order IX Rule 7 CPC seeking to set aside the ex parte order dated 03.06.2009, on the ground that he was doing cultivation since six years at Ballary and he has no knowledge about the court affairs and that as he was called absent and set ex parte in the suit. The Court below, relying on various decisions cited before it, allowed the petition, permitting the revision petitioner to participate in the suit proceedings from the stage at which the suit stands posted as on date i.e. at the stage of arguments. Assailing the said order, the present Civil Revision Petition came to be filed.

Heard the learned counsel for the petitioner and Sri Venkateswarlu Chakkilam, learned counsel for the 1[st] respondent.

MGR, J

C.R.P.No.5854 of 2012

Learned counsel for the revision petitioner would contend that the Court below erred in allowing the petition for some extent permitting the revision petitioner to participate in the proceedings from the stage at which the suit stands posted as on date. He submits that it is not possible to the revision petitioner to argue the case without having evidence and written statement on record and that there would be possibility of causing much prejudice, if he would not be permitted to adduce evidence as the nature of the suit is a partition suit.

On perusal of the order under revision, it is evident that the Court below categorically held that the plea of the revision petitioner that he was not aware of the proceedings as he has been residing at Ballary for the last six years is not at all acceptable and tenable, on the ground that they are in joint possession and enjoyment of the schedule property. It was further held that the revision petitioner did not chose to file any document to prove that he was residing at Ballary for the last six years and that nearly after more than three and half years, the revision petitioner came up with the present application seeking to set aside the ex parte. The Court below further held that as per the amended C.P.C., after expiry of statutory period, the revision petitioner cannot be permitted to file written statement. However, relying on the decisions of the Hon’ble Supreme Court in Sangram Singh v. Election Tribunal, Kotah (AIR 1955 SC 425) and in Arjun Singh v Mohindra Kumar (AIR 1954 SC 993), the Court below permitted to revision petitioner to MGR, J

C.R.P.No.5854 of 2012

participate in the proceedings from the stage at which the suit stands posted as on date i.e. at the stage of arguments.

In the facts and circumstances of the case, considering the submission of the counsel and on perusal of the record, this court found that in the light of the settled legal position, the reasons assigned by the court below in permitting revision petitioner to participate in the proceedings are just, reasonable and well founded and the same do not suffer from any illegality or irregularity warranting interference of this court in exercise of restricted revisional jurisdiction, and hence, the Civil Revision Petition is liable to be dismissed.

Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.

As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.

Conclusion

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M. GANGA RAO, J

Date: 17-10-2019

Sdp/Ksn