No limitation under Article 137 for Order IX Rule 7 CPC; ex parte parties may participate in ongoing proceedings if good cause shown.

ORDER

The present Civil Revision Petition has been filed to set aside the fair and decreetal order dated 14.12.2021 made in I.A.No.1296 of 2021 in O.S.No.208 of 2010 on the file of Hon’ble District Munsif, Dharapuram.

2. Heard Mr.N.Ponraj, learned counsel for the petitioners.

3. The present revision has been filed, challenging the order passed under Order IX Rule 7 of C.P.C., rejecting the same by holding that the same is barred by law of limitation. The application to set aside the ex parte order came to be made on 28.10.2021 by applying Article 137 of the Limitation Act. The same was dismissed as being barred by law of limitation. An application under Order IX Rule 7 would be taken out by the person against whom an ex parte order is passed before the next date of hearing.

4. In the present case, even though the said application has been filed belatedly after 10 years, it is to be noted that the suit is for partition and is in the stage of trial. When the said application was made, recording of evidence has not been completed. In spite of notice to the respondents, the respondents failed to appear before this Court and their names are also printed in the cause list. The e-Court extract of the case status would also indicate that the Court had recorded that there has been a stay of the proceedings and had repeatedly adjourned the case even as of today. In spite of recording of stay granted by the trail Court, the respondents have not taken any steps to appear before this Court to sustain the order passed by the Court.

5. The learned counsel for the petitioners had relied upon a judgment of this Court in the case of S.Santha Vs. M.S.M.K.Packiam & another made in C.R.P.(MD) (PD).No.2473 of 2016 dated 01.12.2016 and another judgment of this Court in the case of Rajasekar Vs. Govindammal (Late) 1.Dhavamani reported in 2020 (6) CTC 724 to contend that in filing an application under Order IX Rule 7, Article 137 is not applicable.

6. He had further relied upon another learned Judge’s judgment in the case of Duraisamy Vs. Aravindh & 2 others made in C.R.P.(PD)No.2569 of 2021 dated 04.01.2024 and had contended that in a similar circumstance, the defendant therein was permitted, to file written statement, holding that Article 137 was held to be not applicable and that there was no limitation for filing an application under Order IX Rule 7 to set aside an ex parte order, and when good cause is shown, the same could be allowed, and such defendant, who had been set ex parte could also be permitted to file his written statement.

7. I have considered the submissions made by the learned counsel appearing for the petitioners and perused the materials available on record. 8. As rightly pointed out by the learned counsel for the petitioners and supported by the judgments relied upon by him, Article 137 cannot be made applicable, as the Limitation Act cannot be applied to an application under Order IX Rule 7 of C.P.C. Hence, the order passed by the Court below is wholly improper and contrary to the well-established principles of law. Even though the petitioner had contended that in the interest of justice, he should also be permitted to file a written statement on being allowed to participate in the proceedings, this Court is also constrained to take into consideration the fact that the petitioners, who are defendants 4 to 6, had entered appearance before the trial Court and an ex parte order came to be passed as they had failed to file their written statement. Such ex parte order came to be passed on 11.10.2010 and thereafter, the matter had been repeatedly adjourned and is at the stage of trial for re