A subsequent partition suit cannot be maintained without including all necessary parties if the earlier suit was dismissed for non-prosecution, ensuring complete adjudication of disputes.

O R D E R

This Civil Revision Petition has been filed to set aside the Fair and Decreetal Order dated 03.10.2019 in I.A.No.2/2019 in I.A.No.1/2019 in O.S.No.65/2017 on the file of the learned Principal Subordinate Judge, Erode.

2. Mr.M.V.Venkataseshan, learned Senior Counsel for Mr.Kiran Kishan B.M appearing for the Petitioners invited the attention of this Court to the genealogical tree, which is extracted hereunder:

Chella Naicker @ Chella Boyan (Died on 01.10.2006)

Pappayammal Died in the year of 2007 Achiyammal Nachimuthu Kolandasamy Palanisamy Pappathi (D-3) (Died) (D-2) (Plaintiff) (D-6)

Dharmaraj (D-1)

Eswaran Murugesan (D-4) (D-5)

2.1. The Plaintiff is Palanisamy. The father of Palanisamy viz., Chella Naicker had executed a Will in favour of the Plaintiff/Palanisamy and Dharmaraj the son of pre-deceased son Nachimuthu. Therefore, in the light of the above alleged Will, the Plaintiff had instituted the Suit in O.S.No.1/2014 on the file of the learned District Munsif, Erode in which the Revision Petitioners herein were also Defendants. After receipt of summons from the Court, the Defendants entered appearance and disputed the claim of the Plaintiff in the Plaint averments. The claim of the Plaintiff in O.S.No.1/2014 that it was a self-acquired property of the Plaintiff's father/Chella Naicker which was disputed by the Defendants stating that it is an ancestral property of Chella Naicker and Chella Naicker could not have executed Will in favour of the Plaintiff and the son of the pre-deceased brother. The alleged Will is not a bona fide Will. It is to be verified by sending it to the Expert regarding hand writing and signature of the deceased/Chella Naicker. After filing of the written statement, the Plaintiff/Palanisamy let the Suit in O.S.No.1/2014 for dismissal. Subsequently, he had filed the Suit in O.S.No.65/2017 with the same prayer claiming that the father of the Plaintiff/Chella Naicker had executed a registered Will in favour of the Plaintiff/Palanisamy and son of the pre-deceased son Dharmaraj and no other legal heirs of Chella Naicker were parties to the Suit. The said son of the pre-deceased son Dharmaraj remained ex parte. Based on the Will, the Suit was decreed ex parte (preliminary decree) and partition was granted in favour of the Plaintiff/Palanisamy.

2.2. Based on the ex parte preliminary decree, the Plaintiff/Palanisamy filed I.A.No.1/2014 in which the Defendants in the earlier Suit in O.S.No.1/2014 filed Petition to implead them as Defendants in O.S.No.65/2017 and seeking to set aside the preliminary decree for partition in I.A.No.1/2014.

2.3. It is the contention of the learned Counsel for the Revision Petitioners that in O.S.No.65/2017, Palanisamy had examined himself as P.W-1, the scribe of the Will was examined as P.W-2. Therefore, the Petition filed by the Defendants in the earlier Suit in O.S.No.01/2014 as Petitioners herein seeking to set aside the ex parte decree in favour of Palanisamy was dismissed by the learned District Munsif, Erode. Aggrieved by the same, the Petitioners in I.A.No.02/2019 in I.A.No.1/2019 in O.S.No.65/2017 had approached this Court seeking to set aside the Order of preliminary decree and to implead themselves as party Respondents/Defendants in the Suit. The Respondents had filed counter. Based on the counter, after due enquiry, the learned District Munsif dismissed the I.A.No.2/2019. Aggrieved by the same, the Petitioners are before this Court with this Petition.

2.4. It is the contention of the learned Counsel for the Petitioners that after a Suit was dismissed for default, the party has to restore the Suit. Here, the Plaintiff in O.S.No.1/2014 is the Plaintiff in O.S.No.65/2017 had not attempted to restore the earlier Suit under Order IX, Rule 9 of Civil Procedure Code. He had filed the Suit in O.S.No.65/2017 straight away.

2.5. It is the further contention of the learned Counsel for the Petitioners that the partition Suit is always maintainable, it may be filed at any time. At