1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08.02.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.237 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 1.P.Vellaikkannu 2.Pitchaiammal .. Petitioners Vs. V.Kallanai .. Respondent Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 23.09.2010 passed in Interlocutory Application No.972 of 2009 in Interlocutory Application No.608 of 2009 in Original Suit No.309 of 2007 by the First Additional Sub Court, Madurai. For Petitioners : Mr.R.Vijayakumar ORDER This Civil Revision Petition has been directed against the order dated 23.09.2010 passed in Interlocutory Application No.972 of 2009 in Interlocutory Application No.608 of 2009 in Original Suit No.309 of 2007 by the First Additional Sub Court, Madurai. 2. The respondent herein as plaintiff has instituted Original Suit No.309 of 2007 on the file of the Court below for the reliefs of partition and separate possession of his share, wherein the present revision petitioners have been shown as defendants 1 and 2. In Original Suit No.309 of 2007, the revision petitioners/ defendants 1 and 2 have been set ex-parte and in order to set aside the same, they filed a petition in Interlocutory Application No.608 of 2009, wherein a conditional order has been passed and in order to elongate the time fixed therein, the present petition has been filed in Interlocutory Application No.972 of 2009. The Court below has dismissed the same. Against the dismissal order, the present Civil Revision Petition has been preferred. 3. Considering the nature of the impugned order passed in Interlocutory Application No.972 of 2009 and also considering the conditional order passed in Interlocutory Application No.608 of 2009, notice need not be sent to the respondent and the present Civil Revision Petition is disposed of on merits at the stage of admission. 4. The learned counsel appearing for the revision petitioners has contended that Original Suit No.309 of 2007 has been instituted for the reliefs of partition and separate possession, wherein the revision petitioners have been shown as defendants 1 and 2 and they have been set ex-parte and in order to set aside the ex-parte order, Interlocutory Application No.608 of 2009 has been filed, wherein a conditional order has been passed and in order to elongate the time fixed therein, the present petition has been filed in Interlocutory Application No.972 of https://hcservices.ecourts.gov.in/hcservices/ 2 2009 under Section 148 of the Code of Civil Procedure, 1908, but the Court below has erroneously dismissed the same and therefore the dismissal order passed by the Court below is liable to be set aside. 5. It is an admitted fact that Original Suit No.309 of 2007 has been instituted for the reliefs of partition and separate possession, wherein the present revision petitioners have been shown as defendants 1 and 2 and they have been set ex-parte and in order to set aside the ex- parte order, Interlocutory Application No.608 of 2009 has been filed. In Interlocutory Application No.608 of 2009, the Court below has directed the revision petitioners/defendants 1 and 2 to pay Rs.100/- to the respondent therein on or before 26.08.2009. The revision petitioners have failed to comply with the condition imposed against them in Interlocutory Application No.608 of 2009 and in order to elongate the time fixed therein, Interlocutory Application No.972 of 2009 has been filed under Section 148 of the Code of Civil Procedure, 1908 and the same has been dismissed. 6. Considering the nature of the relief sought for in Original Suit No.309 of 2007 and also considering the fact that in Interlocutory Application No.608 of 2009, a conditional order has been passed, wherein the revision petitioners have been directed to pay Rs.100/- to the respondent on or before 26.08.2009 and they failed to comply with the condition and subsequently they filed the present petition in Interlocutory Application No.972 of 2009, this Court is of the view that for giving better opportunity, the dismissal order passed in Interlocutory Application No.972 of 2009 can be set aside on such terms as stated infra. 7. In fine, this Civil Revision Petition is allowed without costs and the order passed in Interlocutory Application No.972 of 2009 in Interlocutory Application No.608 of 2009 in Original Suit No.309 of 2007 by the First Additional Sub Court, Madurai is set aside. The revision petitioners/petitioners/defendants 1 and 2 are directed to pay Rs.1000/- to the respondent/plaintiff before the end of February, 2011. If the revision petitioners/petitioners/ defendants 1 and 2 complied with the condition mentioned supra, the Court below is directed to allow the petition filed in Interlocutory Application No.608 of 2009 in Original Suit No.309 of 2007. If they failed to comply with the condition as mentioned supra, the order passed in Interlocutory Application No.608 of 2009 stands good. The Registry is directed to send a copy of this order forthwith. Consequently, connected Miscellaneous Petition is closed. Sd ASST REGISTRAR ( CO ) /TRUE COPY/ SUB ASST REGISTRAR smn To:: The First Additional Subordinate Judge, Madurai. 1CC TO MR. R. VIJAYAKUMAR, ADVOCATE, SR: 4903: DM:2011:FEB:11: C.R.P(PD)(MD)No.237 of 2011 and M.P(MD)No.1 of 2011 2P:3C: 08.02.2011 https://hcservices.ecourts.gov.in/hcservices/