IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.08.2008 CORAM: THE HONOURABLE MR.JUSTICE S.TAMILVANAN Civil Revision Petition (NPD) No.1981 of 2004 and C.M.P.Nos.14750 and 14751 of 2004 Ramathal .. Petitioner vs. 1. Palanisamy Gounder 2. Nataraj 3. Samiyappan 4. Lakshmi 5. Sulochana .. Respondents Civil Revision Petition filed against the fair and decreetal order, dated 16.12.2003 passed in C.M.A.No.26 of 2000 on the file of the Subordinate Judge, Tiruppur, confirming the fair and decreetal order, dated 06.09.2000 made in I.A.No.628 of 2000 in O.S.No.502 of 1996 on the file of the District Munsif, Tiruppur. For petitioner : Ms.P.T.Asha for M/s. Sarvabhuman Associates For Respondents : Mrs.Vedavalli Kumar for R1 and R2 No appearance for R3 to 5 O R D E R This Civil Revision has been preferred against the order, dated 16.12.2003 made in C.M.A.No.26 of 2000 on the file of the Subordinate Judge, Tiruppur, confirming the fair and decreetal order, dated 06.09.2000 made in I.A.No.628 of 2000 in O.S.No.502 of 1996 on the file of the District Munsif, Tiruppur. 2. It is an admitted fact that the revision petitioner herein filed the suit in O.S.No.502 of 1996 against the respondents herein, seeking a decree of partition and separate possession of her share in the schedule of property of the plaint. https://hcservices.ecourts.gov.in/hcservices/ 3. Ms.P.T.Asha, learned counsel appearing for the revision petitioner submits that the case was posted on 07.06.2000 for trial. When the matter was called, the learned counsel appearing for the petitioner before the trial court made an endorsement as "no instructions for the plaintiff", hence, the suit was dismissed on the same day, however, the revision petitioner / plaintiff filed the application within 30 days to set aside the exparte order of dismissal and to restore the suit. However, the said application filed under Order IX Rule 9 CPC was dismissed by the court below. Hence, she preferred the aforesaid Civil Miscellaneous Appeal. As per the impugned Judgment, it is seen that the court below has decided that the revision petitioner / plaintiff has not come to court with clean hands. 4. It is not in dispute that the suit has been filed only for partition and that the revision petitioner is a sister, the respondents are her brothers and sisters. According to the revision petitioner, the schedule mentioned properties are the properties belonged to their parents. Based on the pleadings, she filed the suit for partition and separate possession. According to the respondents, there is an earlier partition between the parties, but the same was not decided on merits by the court below. It being a partition suit, merely based on the written statement / counter filed by the respondents herein and the endorsement made by the learned counsel appearing for the plaintiff reporting no instructions, it cannot be decided that the revision petitioner has not come to court with clean hands. As the learned counsel appearing for the revision petitioner / plaintiff had made an endorsement before the court below, the court could have adjourned the case, at least for few days, so as to enable the revision petitioner to engage some other counsel and conduct the case. Merely based on the endorsement made by the learned counsel for the petitioner, reporting no instructions on 07.06.2000, the trial court dismissed the suit on the same day and further, though the application under Order IX Rule 9 CPC was filed to restore the suit within 30 days, the court has not considered it on merits, but has dismissed, by saying that the petitioner has not come to court with clean hands. 5. In such circumstances, I am of the view that there is no justification to confirm the order passed by the trial court by the appellate court in the Civil Miscellaneous Appeal. In passing orders in such applications, interest of justice should be paramount. Had the petition be allowed, the suit could have been disposed of on merits, as contended by the learned counsel appearing for the revision petitioner and therefore, I am of the view, to meet the ends of justice, to allow the petition and to https://hcservices.ecourts.gov.in/hcservices/ set aside the impugned Judgment and Decree passed by the court below. 6. In the result, this Civil Revision Petition is allowed and the impugned Judgment, dated 16.12.2003 made in C.M.A.No.26 of 2000 on the file of the Subordinate Judge, Tiruppur, confirming the fair and decreetal order, dated 06.09.2000 made in I.A.No.628 of 2000 in O.S.No.502 of 1996 on the file of the District Munsif, Tiruppur is set aside. Consequently, connected civil miscellaneous petitions are closed. However, there is no order as to costs. 7. The District Munsif, Tiruppur is directed to restore the suit on file and dispose the same on merits in accordance with law, within three months from the date of receipt of the copy of this order. Tsvn Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Subordinate Judge, Tiruppur 2. The District Munsif, Tiruppur 3. The Section Officer, VR Section, High Court, Madras. C.R.P. (NPD) No.1981 of 2004 MRD(CO) SR/16.9.2008 https://hcservices.ecourts.gov.in/hcservices/