BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 08.03.2024 Delivered on : 26.04.2024 CORAM:

THE HON'BLE MR.JUSTICE K.MURALI SHANKAR C.R.P.(MD)No.2054 of 2019

1.Murugeswari 2.Parameswari

3.Pandiamal : Petitioners/Appellants/

Petitioners/Defendants Vs.

S.P.Sivaramakrishnan : Respondent/Respondent/

Respondent/Plaintiff Prayer : This Civil Revision Petition filed under Section 115 of C.P.C., to set aside the fair and decreetal order, dated 06.03.2019 in C.M.A.No.6 of 2016 in I.A.No.76 of 2011 in O.S.No.935 of 2009 passed by the II Additional Sub Court, Madurai.

For Petitioners : Mr.M.Kumar For Respondents : Mr.S.Srinivasa Raghavan

ORDER

The Civil Revision Petition is directed against the order passed in C.M.A.No.6 of 2016, dated 06.03.2019 on the file of the II Additional Sub Court, Madurai, confirming the order passed in I.A.No.76 of 2011 in O.S.No.935 of 2009, dated 15.02.2016 on the file of the Principal District Munsif Court, Madurai Town, dismissing the petition filed under Order IX Rule 13 of the Code of Civil Procedure.

2. The revision petitioners are the appellants/defendants. The respondent as plaintiff has filed the suit in O.S.No.935 of 2009 against the revision petitioners claiming permanent injunction restraining the defendants and their men from interfering with the peaceful possession and enjoyment of the suit property. Since the defendants have not filed their written statement, they were set ex-parte and an ex-parte judgment and decree came to be passed on 26.08.2010.

3. The defendants by alleging that the suit summons were not served on them, have filed a petition under Order IX Rule 13 of C.P.C., for setting aside the ex-parte decree, dated 26.08.2010 in I.A.No.76 of 2011 on the file of the Principal District Munsif Court, Madurai Town. The respondent/plaintiff has filed the counter statement raising serious objections. During enquiry, the revision petitioners/defendants have examined the fourth and third defendants as P.W.1 and P.W.2 respectively and exhibited six documents as Ex.P.1 to Ex.P.6. The respondent/plaintiff has adduced neither oral nor documentary evidence. The learned District Munsif, upon considering the evidence available on record and on hearing the arguments of both the sides, has passed the order, dated 15.02.2016, dismissing the petition. Aggrieved by the order of dismissal, the defendants have preferred an appeal in C.M.A.No.6 of 2016 and the learned II Additional Sub Court, Madurai, upon considering the materials available on record and on hearing the arguments of both the sides, has passed the impugned order, dated 06.03.2019, dismissing the appeal and thereby confirming the dismissal order passed by the trial Court.

Aggrieved by the order of dismissal, the present revision came to be filed.

4. The case of the revision petitioners/defendants 2 to 4 in the petition filed under Order IX Rule 13 of C.P.C., is that they are the owners of the property in Survey Nos.88/9 and 88/10 in Thathaneri, Madurai; that since the respondent attempted to trespass into their properties, they have sent a lawyer notice, dated 17.12.2010 requesting them not to interfere with their possession and enjoyment of their properties; that the respondent having received the said notice, sent a reply notice, dated 23.12.2010; that the respondent in the reply notice stated that he has already filed a suit in O.S.No.935 of 2009 for permanent injunction and that the defendants engaged three advocates and since they have not filed the written statement, an ex-parte decree was passed; that the Court summons in O.S.No.935 of 2009 were not at all served on the defendants 2 to 4; that they have not instructed any advocate to appear on their behalf; that after receiving the said reply notice, they have verified the matter and found that a huge fraud was committed upon the Court and ex-parte decree was obtained by the respondent fraudulently and that therefore, they were constrained to file the above application for setting aside