Filing an application under Order 9 Rule 13 CPC is necessary before filing an appeal against an exparte judgment and decree. A party who remained exparte in the lower court cannot convert the first appellate court into a trial court by seeking permission to file a written statement and documents to participate in the proceedings.

1. This second appeal is focussed by the defendants 4 and 5, animadverting upon the judgment and decree dated 03.02.2009 passed by the learned Principal District Judge, Erode in A.S.No.42 of 2008 confirming the judgment and decree dated 13.02.2008 passed by the learned Principal Subordinate Judge, Erode in O.S.No.269 of 2006.

2. The parties are referred to here under according to their litigative status and ranking before the trial Court.

3. Heard both sides.

4. The factual matrix lies within a narrow campus, which is pithily and precisely set out thus:

a)The plaintiff filed the suit O.S.No.269 of 2006 seeking the following reliefs:

- for division of the suit properties into 4 equal shares by metes and bounds and with reference to good and bad soil and allot one such share to the plaintiff and put her in separate possession;

- to appoint a commissioner to divide the suit properties as claimed in column (a);

- to restrain the defendants from in any way and in any manner either alienating or encumbering the suit properties including the share of the plaintiff with specific boundaries till final partition is effected by means of permanent injunction;

- to direct the defendants to pay the costs of the suit to the plaintiff.

(extracted as such)

b) Written statement was filed by D9 virtually agreeing to the case of the plaintiff. It appears D1 died. However D2 to D8 remained exparte before the trial court.

c) Whereupon issues were framed. On the side of the plaintiff, she examined herself as PW1 and marked Exs.A1 to A11. The ninth defendant/Mahendran examined himself as D.W.1 and no document was marked.

d) Ultimately the trial court decreed the suit.

e) Instead of filing an application to get the exparte decree set aside, the appellants herein/D4 and D5 preferred appeal before the District Court; whereupon the District Court dismissed the appeal.

5. Challenging and impugning the judgments of both the courts below, this second appeal has been focussed on various grounds inter alia to the effect that the lower appellate court was not right in holding that the proper remedy for the appellants was only to file an application to get the exparte decree set aside; but they did not do so and with that finding the first appellate court simply dismissed the appeal. Even the application filed under Order 41 Rule 27 of CPC was dismissed.

6. Accordingly, suggesting the following substantial questions of law in the memorandum of appeal, this second appeal has been filed.

a. Is the lower appellate court justified in dismissing the appeal stating that as the appellants were set exparte in the trial court, the appeal filed by them is not maintainable?

b. Is the plaintiff/1st respondent entitled to seek partition of the suit properties without proving the title of her father to the same?

(extracted as such)

7. My learned predecessor while admitting the second appeal, framed the following substantial question of law:

Whether the lower appellate court is justified in dismissing the appeal stating that as the appellants were set exparte in the trial court, the appeal is not maintainable?

8. The learned counsel for the appellants/D4 and D5 would submit that filing an application under Order 9 Rule 13 CPC is not a sine qua non, before filing an appeal against the exparte judgment and decree. The party who remained exparte is also entitled to file an appeal and prosecute the appeal, but the first appellate court, ushering in an erroneous proposition of law, simply dismissed the appeal, warranting interference in the second appeal.

9. Whereas by way of torpedoing and pulverising the argument as put forth on the side of the appellants/D4 and D5, the learned counsel for the first respondent/plaintiff would submit that this is a singularly singular case, in which D4 and D5 approached the first appellate court with a distinct plea of their own, as they did not merely find fault with the exparte decree; but they wanted to put forth their case afresh for the