PRAYER

: Civil Revision Petition is filed under Article 227 of Constitution of India, to call for the records and set aside the fair and decretal order dated 25.09.2025 in I.A.No.2 of 2023 in O.S.No.65 of 2014 on the file of the learned Principal District Munsif Court, Kulithalai.

ORDER

The defendants in the suit for partition are the petitioners herein.

O.S.No.65 of 2014 was presented by the sole respondent/ plaintiff seeking partition and separate possession of his alleged 1/3 rd share in the subject property.

Summons were served on the defendants. However, having failed to file a written statement, they were set ex-parte. Finally, a preliminary decree for partition was passed on 29.07.2016.

To set aside the ex-parte preliminary decree so passed, the petitioners herein presented I.A.No.2 of 2023 before the learned Principal District Munsif, Kulithalai. By the time the application was filed, the prescribed period of 30 days had long expired. Hence, they sought the indulgence of the Court to condone the delay of 2531 days in filing the application under Order IX Rule 13 of the Code of Civil Procedure. The learned Judge ordered notice in the application. After receipt of a counter, he dismissed the same. Aggrieved by the said order, the present revision.

Heard Mr.M.Suresh for the petitioners and Mr.AN.Ramanathan for the respondent.

It is the plea of the petitioners that they were not in a position to instruct the counsel on account of the fact that Mr.Shanmugam, the 5th revision petitioner, was afflicted with stroke and simultaneously, with jaundice. As he was taking Ayurvedic treatment for these afflictions, it took a long time for him to recover. After recovery, he had approached the counsel only to realize that the suit had already been decreed on 29.07.2016. They came to have the knowledge of the ex-parte decree only when the final decree application in I.A.No.1 of 2022 was filed, after the lapse of six years, from the date of passing of the preliminary decree.

Mr.M.Suresh appearing for the petitioners urges that even before the partition suit had been filed, the plaintiff had already alienated his property in favour of one Chellammal, W/o.Kuruvanaicker, by way of a registered document in Doc.No.406 of 1989 on 15.02.1989. He states that the parties had entered into negotiations to settle the matter after the preliminary decree and consequently, the delay had occurred.

Mr.AN.Ramanathan states that the affidavit does not disclose any sufficient cause to condone the delay and the claim of the petitioners is absolutely without any merits. He adds that no medical records had been produced before the Court to substantiate the plea of jaundice and stroke and consequently, seeks dismissal of the revision.

I have carefully considered the submissions of both sides and have gone through the records.

The suit is one for partition. The defendants contended that the 5th petitioner herein, had suffered a stroke and in addition thereto, was also afflicted with jaundice. The affected fifth petitioner was taking treatment through traditional Ayurvedic methods. The fact that he had been so suffering was vouched for by a third party, namely, Manikandan, who was examined as P.W.2 in the proceedings relating to the petition to condone the delay.

In addition, the encumbrance certificate for the property had also been filed as Ext.P2, in order to point out the plaintiff had already alienated the property as early as 15.02.1989.

A perusal of the impugned order shows the learned trial Judge had not gone into detail with respect to the evidence of P.W.2 or the documents filed by the defendants, indicating the alienation of the property, even prior to the presentation of the suit.

When a person is afflicted with a stroke, it would be too harsh on the Court to expect him, despite his debilitating condition, to be present in his counsel’s office and give instructions to oppose the suit for partition. Medical reason is certainly a sufficient cause for the