BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)(MD)No.427 of 2006 1.Gomathi Ammal 2.S.P.Manoharan 3.A.Kalaiselvi ... Petitioners Vs 1.P.Mohan 2.V.Durairajan 3.G.Chandrasekaran 4.V.Prema 5.S.P.Ravindran ... Respondents Respondents 4 and 5 set exparte before the lower Court. Hence, given up. Prayer Petition filed under Section 115 of Civil Procedure Code, against the fair and Decreetal order dated 20.03.2006 in I.A.No.43 of 2006 in O.S.No.85 of 2005 on the file of the Additional District Judge, (Fast Track Court No.1), Thanjavur. !For Petitioners ... Mr.M.V.Krishnan ^For 1st Respondents ... Mr.S.Kathirvelu For 2nd Respondent ... Dismissed For 3rd Respondent ... No appearance :ORDER
This Civil Revision Petition is focussed against the fair and Decreetal
order dated 20.03.2006 in I.A.No.43 of 2006 in O.S.No.85 of 2005 on the file of
the Additional District Judge, (Fast Track Court No.1), Thanjavur.
2. Heard both sides. Despite printing the name of the 3rd respondent,
there is no representation for him.
3. A re’sume’ of facts absolutely necessary and germane for the disposal
of this Civil Revision Petition would run thus:
O.S.No.85 of 2005, was filed by one V.Durairajan, second
respondent/plaintiff herein for partition, which was earlier filed before the
Sub Court, Thanjavur, and numbered as O.S.No.8 of 2000 and subsequently
transferred to Fast Track Court No.1, Thanjavur, and renumbered as O.S.No.85 of
2005. While so, the first respondent/15th defendant Mohan remained exparte,
even while the suit was pending before the Sub Court, Thanjavur. It appears
that certain amendments were ordered to be carried out by the plaintiff in
O.S.No.85 of 2005, which was not done. The first respondent/15the defendant
filed an application I.A.No.43 of 2006 for dismissing the said suit, which was
allowed by the Additional District Judge, by the order dated 20.03.2006.
However, the present petitioners who happened to be defendants 10, 11 and 14 and
who have filed Written Statement stating that the suit itself had to be
dismissed, preferred this revision and also filed C.M.P.(MD) No.3946 of 2006 in
that C.R.P. This Court by order dated 21.09.2006 dismissed that C.M.P.(MD)
No.3946 of 2006 by recording the following order:
“The Civil Miscellaneous Petition is dismissed as not sustainable, since
the suit itself has been dismissed, the present application for staying the said
suit is not sustainable and the same is dismissed.”
It is therefore clear that during the pendency of the C.R.P., the suit O.S.No.85
of 2005 was also dismissed.
4. The point for consideration is as to whether the trial Court was
justified in allowing the I.A.No.43 of 2006?
6. Point : The learned counsel for the revision petitioners would point
out that Mohan, the first respondent herein remained exparte in O.S.No.85 of
2005 and accordingly he had no right to file I.A.No.43 of 2006 without getting
the exparte order set aside; counter was filed on behalf of the revision
petitioners contending that Mohan had no right to file any application.
7. The contention of the learned counsel for the revision petitioners is
that the said Mohan, the petitioner in I.A.No.43 of 2006 had no locus-standi to
file the said application.
8. In my opinion, even though Mohan (15th Defendant) was set exparte in
the suit, nonetheless it cannot be held that he could not file I.A.No.43 of
2006. He never sought any positive finding, on the other hand he prayed that the
suit itself should be dismissed; that was considered by the lower Court on
merits and held that certain amendments were also as ordered by the Court were
not carried out by the plaintiff. Hence, the suit was dismissed holding that
the plaintiff could claim his 1/6th share as per law in the one another suit
O.S.No.82 of 2004 pending.
8. The learned counsel for the 1st respondent would correctly argue that
the present revision petitioners are having no locus-standi to file this
revision as they never sought for any relief in I.A.No.43 of 2006 and even then
they have chosen to challenge the order passed in I.A.No.43 of 2006. The
learned counsel for the first respondent also drew the attention of this Court
to the fact that the same revision petitioners herein have already filed Written
Statement in O.S.No.8 of 2000, which was subsequently numbered as O.S.No.85 of
2005, praying for dismissal of the suit itself and in fact that suit was
dismissed as per the order passed in I.A.No.43 of 2006. A fortiori I could hold
that there is no rhyme or reason for the revision petitioners to file this
revision.
9. Accordingly, the Civil Revision Petition is dismissed. No costs.
sj
To
1.The Additional District Judge,
Fast Track Court No.1,
Thanjavur.