BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.08.2024 CORAM THE HON'BLE MR.JUSTICE G.ILANGOVAN C.M.A.(MD).No.439 of 2024 and C.M.P.(MD).No.5817 of 2024 S.Elangovan ... Appellant/Petitioner/1^st Defendant Vs.

1.Ranjitham

2.Panchamirtham

3.Pushpam ... Respondents 1 to 3/Respondents 1 to 3/

Plaintiffs 1 to 3

4.S.Rajendran

5.S.Duraisamy ... Respondents 4 & 5/Respondents 4 & 5/

Defendants 2 & 3 PRAYER : Civil Miscellaneous Appeal is filed under Order 43 Rule 1(d) of CPC, to call for the records and set aside the fair and decreetal order passed by the learned V Additional District & Sessions Judge, Madurai, in I.A.No.625 of 2022 in O.S.No.130 of 2016, dated

31.01.2024.

For Appellants : Mr.S.Srikanth for M/s.APN Law Associates For Respondents : Mr.R.G.Shankar Ganesh for R1 to R3 For R4 & R5 – No Appearance

JUDGMENT

This appeal has been filed to set aside the fair and decreetal order passed by the learned V Additional District & Sessions Judge, Madurai, in I.A.No.625 of 2022 in O.S.No.130 of 2016, dated 31.01.2024.

2.The facts in brief:

The suit in O.S.No.130 of 2016 was filed by the respondent herein namely Ranjitham, before the District Judge, Madurai, seeking the relief of partition and separate possession of the plaintiff's 2/6 shares and for costs. In the suit, the appellant herein remained exparte. To set aside the exparte decree, the petition in I.A.No.625 of 2022 was filed by the appellant herein, who is the first defendant before the trial Court, stating that they went to the property on 01.03.2017 for taking measurement. At that time, the first respondent prevented the petitioner from measuring the property stating that the suit was allowed and partition decree was passed. So they should not measure the property. Only at that time, the petitioner came to know that exparte decree was passed in the main suit. The petitioner was working in police department in 2007. From 2009, he is residing in Balaji Nagar, Thiruparankundram. He never lived in Meinuthupatti. Even though he is having house in Meinuthupatti, because of family situation, he shifted the residence. He never received any summons either from the trial Court or from the Advocate of the respondents. The decree dated 01.07.2017 was brought to his notice ony on the date of event. So the petition is filed.

3.That was resisted by the respondent herein by filing the counter that in spite of the receipt of summons he did not appear before the trial court. He is living in the address mentioned in the summons. It is also denied that passing the exparte decree came to his notice only in the month of May 2022. Having known the filing of the suit, he refused to receive the summons. So exparte decree was passed, which requires no interference.

4.On hearing both sides, the trial Court dismissed the petition.

Against which, this appeal is preferred.

5.Heard both sides.

6.The learned counsel for the appellant would submit that a wrong address was mentioned in the plaint. So summon was sent to the wrong address. He never refused to receive the summon. So the exparte decree passed by the trial Court requires to be set aside. Facts recorded by the trial Court on that aspect is not legal and proper.

7.Per contra, the learned counsel for the respondent would submit that the appellant herein refused to receive the summons issued by the Court. Before the trial Court four witnesses were examined. Only on going through the evidence on record, decree was passed, which requires no interference.

8.To know whether proper summons was served upon the appellant, the records were called fro from the trial Court. It is a clear finding by the trial court in the order itself that summons were issued to the defendants 1 to 3. They remained exparte. Hence, exparte order was passed on 09.11.2021. So far these appellants are concerned summons was returned, stating that there is no residence. Later summons sent to the appellant was returned as refused on 14.12.2016. So the defendants were set exparte and for exparte