The court emphasized the importance of considering the reason assigned in the affidavit for non-appearance and clarified the application's maintainability despite the intervening summer vacation.

1. This revision filed under Article 227 of the Constitution of India arises out of the order of the learned Principal Subordinate Judge, Tindivanam dated 04.08.2011 dismissing I.A.No.342/2011 in O.S.No.2/2009 on the file of the said court. The revision petitioner figures as the 11th defendant in the above said suit. The respondents 1 to 4 are the plaintiffs in the said suit.

2. The suit is one filed for partition of the suit properties. The revision petitioner is the purchaser of one of the items of the suit properties from Vasantha @ Vasanthakumari and Selvalingam, who figure as the defendants 9 and 10 in the original suit. Claiming to be the co-owner of the suit properties along with defendants 1 to 10 in the suit, the respondents herein/plaintiffs in the original suit filed the suit for partition and separate possession and other reliefs. In the suit, all the defendants including the revision petitioner (11th defendant), remained ex-parte and an ex-parte preliminary decree for partion as prayed for came to be passed on 17.03.2009.

3. The revision petitioner (11th defendant) filed an application (unnumbered) under Order IX Rule 13 of the Code of Civil Procedure to set aside the ex-parte decree. As the said application came to be filed with a delay of 776 days, it was filed along with an application under Section 5 of the Limitation Act, 1963 and the said application was taken on file as I.A.No.228/2009. When the said application stood posted on 27.04.2011 for hearing, due to absence of representation, the said application was dismissed by the trial court for non-prosecution. Praying for the restoration of the said application viz. I.A.No.228/2009, the revision petitioner/11th defendant filed an application under Order IX Rule 9 of the Code of Civil Procedure and the same was taken on file as I.A.No.342/2011.

4. In the supporting affidavit to I.A.No.342/2011, it was averred that since one Maniraj, the sister's son of the petitioner, died in an accident, the petitioner could not appear in the court on the date of hearing, namely 27.04.2011 and that when she met the advocate on 31.05.2011, she was informed that her application had been dismissed for non-prosecution on 27.04.2011. It is pertinent to note that the application for restoration of I.A.No.228/2009 was filed on the very same day on which the petitioner allegedly got knowledge of the dismissal of I.A.No.228/2009.

5. The petition was resisted on the basis of the averments made in the counter affidavit of the first respondent filed on behalf of the respondents. Besides making general denial of the averments made in the supporting affidavit, it was also contended that the application for restoration itself had been filed after the expiry of the period of limitation and that hence such an application for restoration, without accompanied by an application under Section 5 of the Limitation Act, 1963 was not maintainable.

6. The learned trial judge, without going into the question of limitation, passed an order on merit holding that the reason assigned by the petitioner for the non-appearance in I.A.No.228/2009 on the date of hearing was not sufficient and that hence the said application, which was dismissed for non-prosecution, could not be restored. As against the said order, the present revision has been filed.

7. The arguments advanced by Ms.B.Archana, learned counsel appearing for Mr.R.Kannan, learned counsel on record for the petitioner and by Mr.R.Sunil Kumar, learned counsel appearing for the respondents are heard. The materials produced in the form of typed set of papers are also perused.

8. It is the contention of the learned counsel appearing on behalf of the counsel on record for the petitioner that the court below committed an error in considering the averments made in I.A.No.228/2009, which was dismissed for default and was sought to be restored, without considering the scope and sustainability of the averments made in support of the application filed under O