M.M. Sundresh, J.

1. This appeal has been filed by the appellant, who is defendant No.2 in the suit and applicant in Application No.3408 of 2012 in C.S.No.874 of 2012. By order dated 10.08.2012, the learned single Judge was pleased to dismiss the said application.

2. The respondents have filed a suit for partition and separate possession. The appellant has been set ex parte due to non-appearance of his counsel and thereafter, an ex parte decree was passed. An application was filed by the appellant in Application No.3408 of 2012, specifically contending that the appellant's counsel could not be present when the matter was taken up for hearing, as his mother had died on 06.04.2010. It is further stated in the affidavit that the counsel for the appellant went to Salem to attend the death ceremony and due to the prevailing custom, he had to stay in the said place for 30 days, to perform the required ceremonies.

3. The learned single Judge dismissed the application filed by the appellant on the ground that the appellant has not given sufficient reason for setting aside the ex parte decree and the application has been filed with a delay of 714 days. Challenging the same, the present appeal has been filed.

4. The learned counsel for the appellant would submit that the reasoning given by the learned single Judge is factually incorrect. The fact that the counsel's mother died is not in dispute. There is no serious controversy over the same. Further more, the learned single Judge has committed a mistake in misconstruing the application filed to condone the delay of 714 days in representing the application to set aside the ex parte decree, as that of one filed to condone the delay in filing the application to set aside the ex parte decree. Therefore, considering the above said fact and taking note of the fact that the suit is for partition and separate possession, the appeal will have to be allowed.

5. Per contra, the learned counsel appearing for the respondents would vehemently contend that there is no bona fide in the application filed. The learned single Judge has rightly taken into consideration all the relevant materials while dismissing the application and that the appellant was not present on three hearings. The learned counsel also made reliance on the following judgments:-

(i) SALIL DUTTA vs. T.M. AND M.C. PRIVATE LTD., (1993) 2 SCC 185; and

(ii) PARIMAL vs. VEENA ALIAS BHARTI, (2011) 3 SCC 545.

6. The suit filed is for partition and separate possession. It is trite law that in a suit for partition, either party has got the status of a plaintiff. The appellant has filed the application to set aside the ex parte decree within the time prescribed before the learned single Judge specifically making an averment that his counsel could not be present due to sudden demise of his mother. This fact has not been seriously disputed. The learned single Judge also did not find that such averment made by the appellant was not correct. However, what persuaded the learned Judge to dismiss the application was that he has misconstrued the facts in holding that there was delay of 714 days in filing the application and therefore, the application lacks bona fides.

7. However, it is to be seen, as pointed out by the learned counsel for the appellant, that in para 5 of the order it has been observed that the application was filed to condone the delay of 714 days in representing the application, which has been filed to set aside the ex parte decree. It is further to be seen that the said application seeking condonation of delay in representing the application was also allowed on terms. The appellant has complied with the said order. Therefore, the reasoning of the learned single Judge, in our view, is not factually correct.

8. It is also settled position of law that, when a vakalat has been filed by the counsel appearing for the defendant or the plaintiff, as the case may be, and the said counsel has not appeared, it is incumbent upon the Cour