IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on Delivered on

18.08.2020 02.09.2020 CORAM THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN CRP. PD.No.625 of 2018 and CMP No.3275 of 2018 Rajasekar .. Petitioner Vs.

Govindammal (late)

1. Dhavamani .. Respondent PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, praying to set aside the order and decreetal order in I.A.No.788 of 2017 in O..No.245 of 2011 on the file of Principal District Munsif, Ulundurpet dated

09.10.2017.

For Petitioner : Mrs.R.Poornima For Respondent : Mr. C.D.Vivekanandan

O R D E R

This matter is taken up for hearing through Video-Conferencing.

This Revision is by the second defendant in OS No.245 of 2011, a suit for partition and separate possession of the plaintiff’s half share in the suit properties and for mesne profits.

2. The second defendant was set exparte in the suit on 19.09.2011 for not filing the written statement. The other defendants had filed a written statement and the suit was being proceeded with. According to the second defendant, he had plotted out the items 1 to 5 of the suit properties and sold to the other defendants in the suit, when he approached the other defendants they had informed him that they would be engaging a counsel and prosecuting the suit. Therefore, he thought that his interest would also be protected by the purchasers and required them to conduct the suit on his behalf also.

3. Only on 04.08.2017 he came to know that the other defendants had also remained exparte and the suit is to be decreed in favour of the plaintiff, as proclaimed by the plaintiff in the village. Immediately, he had engaged the present counsel and made search of the records only to find that he was set ex parte on 19.09.2011and since the other defendants also did not prosecute the suit, the evidence of the defendants was closed and the suit was posted for arguments. He would also further aver that he was under the belief that the counsel who had appeared for the other defendants were prosecuting the matter on his behalf also. Claiming that he came to know about the exparte order only on 04.08.2017, he had filed the present application on 07.08.2017, under Order 9 Rule 7 of the Code of Civil Procedure, seeking to set aside the ex parte order passed against him, to permit him to file a written statement and proceed with the suit.

4. This application was resisted by the plaintiff contending that the claim made in the affidavit was false. The second defendant was served with summons and he did not choose to appear through counsel, therefore, he was set exparte as early as on 19.09.2011. Having sold the property he had no interest in the suit properties and hence, he did not choose to engage a counsel to defend the suit on his behalf. The plaintiff would also point out that the evidence on the side of the plaintiff was completed and the 51^st defendant in the suit, who had filed a written statement was examined in chief on 15.03.2016, he was also cross-examined on 20.09.2016 and the suit was posted for arguments. It is at this stage, the second defendant has come up with the present application. It is the further contention on the plaintiff/respondent that the application has been filed only with the object of delaying the proceedings in the suit. It is also contended that the application itself is barred by limitation. The learned Trial Judge, who heard the application concluded that the application filed six years after the order setting the defendant exparte is barred by limitation, in view of the decision of this Court in Visalakshi v. Umapathy, reported in 2015 (5) CTC 67. Upon such conclusion, the learned Trial Judge dismissed the application, hence the Revision.

5. I have heard Mrs.R.Poornima, learned counsel appearing for the petitioner and Mr.C.D.Vivekanandan, learned counsel appearing for the respondent.

6. The main question that arises in this Revision Petition is, as to whether, an application under Order 9 Rule 7 could be sa