IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.04.2024 CORAM:

THE HONOURABLE MR. JUSTICE P.DHANABAL C.R.P. No.3808 of 2022 Narayaanamma D/o. Ramaiah ... Petitioner Vs.

Ramaiah (died)

1. Suresh S/o. Lakshmaiah

2. Prasanth S/o. Lakshmaiah

3. Muniraj S/o. Gurappa

4. Lakshmaiah S/o. Gangappa

5. Nirmala D/o. Lakshmaiah 6. Nithiya D/o. Lakshmaiah

7. Chandrappa S/o. Muniraju ... Respondents PRAYER: The Civil Revision Petition is filed under Article 227 of Constitution of India praying to set aside the fair and decreetal order dated 26.08.2022 made in I.A. No.4 of 2022 in I.A. No.1 of 2021 in O.S. No.138 of 2007 on the file of the Court of Principal Subordinate Court, Hosur, Krishnagiri District.

For Petitioner : Mr. C. Prabakaran For Respondents : No appearance.

ORDER

The Civil Revision Petition is filed by the petitioner to set aside the order passed in I.A. No.4 of 2022 in I.A. No.1 of 2021 in O.S. No.138 of 2007 on the file of Principal Subordinate Court, Hosur, Krishnagiri, wherein the petitioner herein filed a petition before the Trial Court to set aside the dismissal order dated 27.04.2022 passed in I.A. No.1 of 2021 filed to restore the Suit, which was dismissed for 'default'.

2. According to the petitioner, he is the plaintiff in the main Suit and he filed the Suit for partition and other reliefs and the Suit was posted for amendment due to the death of one of the defendants and at that time, they filed amendment petition and the same was returned and thereafter due to non-filing of amendment petition, the Suit was dismissed for default. Hence the petitioner filed an application in I.A. No.1 of 2021 to restore the Suit, which was dismissed for default on 22.09.2021. In that I.A., the Trial Court has passed a conditional order by directing the plaintiff to file a amendment petition to record the death of the 1^st defendant and to pay the cost of Rs.3,000/- to the respondent / defendant on or before 21.04.2022. Thereafter, the case was posted on 21.04.2022 for compliance. On that date, cost was paid and amendment petition was re-presented. But unfortunately, the petition was returned for some compliance. Therefore, the Trial Court, on 27.04.2022, dismissed the I.A. No.1 of 2021 for non- compliance of the earlier order. In fact, the amendment petition was returned and on the same day itself, the petition to restore the Suit was dismissed without giving opportunity to re-present the amendment petition.

Hence, the order passed by the Trial Court is liable to be set aside.

3. No counter was filed by the respondents. Even after serving notice and names of respondents printed in the cause list, none appeared on the side of respondents.

4. The learned counsel appearing for the petitioner would contend that the petitioner has filed a Suit for reliefs of partition and separate possession and for other reliefs. During the pendency of Suit, the 1^st defendant died and hence the Suit was posted for amendment to record the death of the 1^st defendant and the amendment petition was filed and the same was returned and further, due to non-filing of amendment petition after compliance of condition, the Suit was dismissed for default and thereafter, the petitioner /plaintiff filed another IA No.4 of 2022 to restore the Suit which was dismissed for default on 27.04.2022. The said application was allowed on condition that the petitioner / plaintiff has to file amendment petition to record the death of the 1^st defendant and to pay a cost of Rs.3,000/- and the cost was also paid and thereafter the case was posted for reporting compliance. At that time of filing of amendment petition, it was returned for compliance. Thereafter, the Trial Court passed an order by dismissing the amendment petition vide order dated 27.04.2022. In fact, on 27.04.2022, the Trial Court returned the amendment petition for complying certain defects and no time was given to re-present the petition and the I.A. No1 of 2021 was dismissed by the Trial Court on the same day i.e., on 27.04.2