1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:23.03.2011 CORAM: THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.R.P(PD)(MD)No.589 of 2011 and M.P(MD)NO.1 of 2011 1. Pandiyan @ Pandiyarajan 2. Vinoth @ Vinoth KUmar 3. Rajeswari 4. Priya .. Petitioners -vs- 1. Balanagammal 2. Alagar 3. Babychandra 4. Agilandam 5. Vijayalakshmi 6. Mangammal 7. Santhadevi .. Respondents PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, against the order and decree of the Additional District and Sessions Judge (Fast Track Judge No.III), Madurai dated 08.02.2011 passed in I.A.No.146 of 2011 in I.A.No.784 of 2010 in O.S.No.123 of 2007. For Petitioner : Mr.M.Thirunavukkarasu ORDER This Revision Petition has been filed against the dismissal of the petitioners' application to set aside ex-parte order passed against them in I.A.NO.784 of 2010. 2. The case of the petitioners is that the first respondent filed a suit for partition against the father of the petitioners and others. Based on the written statement filed by the second respondent/the father of the petitioners, the first respondent/plaintiff belatedly filed an application in I.A.No.784 of 2010 to implead the petitioners herein as defendants in the suit. The said application was allowed, as the petitioners did not choose to contest the said application. To set aside the said ex-parte order only the petitioners filed I.A.NO.146 of 2011 and the said petition was dismissed. Against the order of the dismissal, the present Civil Revision Petition has been filed. 3. The learned Counsel for the petitioners submits that the petitioners are entitled a hearing before their impleadment in the suit. Only when the petitioners are heard, the petitioners could reveal their defence in the said application as they are not necessary parties. Secondly, he submits that only after the parties were examined in the suit, the first respondent/plaintiff belatedly filed an application to implead. Therefore he seeks for setting aside the order passed by the trial Court and seeks rehearing of impleading application. 4. A perusal of the records would show that the suit was filed by the first respondent against the father of the petitioners herein. In the said suit, the second respondent father filed a written statement that the https://hcservices.ecourts.gov.in/hcservices/ 2 properties were settled in favour of the petitioners by his father Mani Kounder. In paragraph No.5 of the written statement, it has been mentioned about the settlement of the properties. In view of that, the second respondent/plaintiff took out the impleading petition. Inspite of receipt of notice and entering appearance through Counsel, the petitioners did not choose to contest the said application and therefore the trial Court allowed the said application impleading the petitioners as parties to the suit. 5. To set aside the said order to implead the petitioners, I.A.No.146 of 2011 was taken out. The trial Court after noting the fact that based on the written statement only, the petitioners were sought to be impleaded by the respondent/plaintiff and the presence of the petitioners in the suit proceedings is necessary for effective and complete adjudication of the issues involved in the partition suit. The trial Court also found that after considering the objections raised by the petitioners' father and the other respondents only, the impleading petition was allowed. When the second respondent's father contested the impleading application, the order has been passed on merits and it cannot be said as an ex-parte order and therefore the petition itself is not maintainable. This Court completely agrees with the reasonings given by the trial Court and the order has been passed on merits and it cannot be set aside. If the petitioners did not choose to contest the matter by filing counter, it is their own invitation and they should be blamed for the situation. 6. The learned Counsel for the petitioners relied upon a judgment of this Court in Valleeswari Vs. Kamalakannan and another reported in 2010(1) MWN (Civil)581, wherein it has been decided that there is no period of limitation is prescribed for deciding an application to set aside ex-parte order. There is no dispute with regard to the dictum laid down by this Court. In this case, the impleadment order sought to be set aside by the petitioner as stated above is not ex-parte order. On merits, the trial Court decided that the petitioners are necessary parties. So there is no question of considering the limitation. Therefore, the said judgment is not of any use to the petitioners. 7. In the result, the Civil Revision Petition stands dismissed Consequently, connected miscellaneous petition is also dismissed. No costs. Sd/- Assistant Registrar(P&A) /TRUE COPY/ Sub Assistant Registrar To The Additional District and Sessions Judge (Fast Track Judge No.III), Madurai. +1cc to Mr.M.Thirunavakkarasu, Advocate SR.No.7552 C.R.P(PD)(MD)No.589 of 2011 and M.P(MD)NO.1 of 2011 23.03.2011 ssl PA/18.04.2011/2P/3C https://hcservices.ecourts.gov.in/hcservices/