Mohamed Anwar, v. Abdul Ajeed,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 25.06.2018 Coram:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN C.R.P.(NPD)No.1805 of 2018 and C.M.P.No.10151 of 2018 Mohamed Anwar ... Petitioner Vs.
1. Abdul Ajeed
2. Pakkir Beevi (Deceased)
3. Ameena Begum ... Respondents Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decreetal orders passed in I.A.No.63 of 2017 in O.S.No.34 of 2003 dated 07.03.2018 on the file of the District Munsif-cum-Judicial Magistrate, Kattumannarkoil. For Petitioner : Mr.A.Muthukumar
ORDER
The civil revision petition has been filed against the order dated 07.03.2018 passed in I.A.No.63 of 2017 in O.S.No.34 of 2003 by the learned District Munsif-cum-Judicial Magistrate, Kattumannarkoil.
The first respondent herein is first plaintiff and second and third respondents are defendants 1 and 3 respectively and the petitioner herein is 2nd defendant in the original suit in O.S.No.34 of 2003.
The first respondent and another filed a suit in O.S.No.34 of 2003 before the learned District Munsif-cum-Judicial Magistrate, Kattumannarkoil for partition. The said suit was dismissed on 19.01.2006 for default. The first respondent/1st plaintiff filed an application in I.A.No.63 of 2017 without impleading the 2nd plaintiff seeking to condone the delay of 1868 days in filing application to restore the above suit. The trial Court by an order dated 07.03.2018 allowed the same with cost. Aggrieved against same, the second defendant preferred this present revision petition. The learned counsel appearing for the revision petitioner/2nd defendant would submit that originally there are two plaintiffs in the suit in O.S.No.34 of 2017. The first respondent herein is the first plaintiff and without impleading the second plaintiff as party, he filed I.A.No.63 of 2017 seeking to condone the delay of 1868 days in filing application to restore the suit, which was dismissed for
default on 19.01.2006 itself. The trial Court without considering the above said fact and since the suit filed for partition all the parties are necessary for disposal of the suit as well the application in I.A.No.63 of 2017, erroneously allowed the application. Hence the order dated 07.03.2018 is liable to be set aside.
Heard the learned counsel appearing for the revision petitioner and perused the materials available on record. On a perusal of the records, it reveal that the first respondent herein, who is the first plaintiff in the suit, filed an application in I.A.N.63 of 2017 without impleading the second plaintiff seeking to condone the delay of 1868 days in filing petition to restore the suit, which was dismissed on 19.01.2006. Since the suit is for partition, all the parties are necessary for all proceedings. The trial Court ought to have directed the first respondent/first plaintiff to file the restoration application along with the second plaintiff. If at all the second plaintiff was not co-operating for filing restoration application jointly then the first plaintiff should have shown the second plaintiff as one of the respondents in the application in I.A.No.63 of 2017. On seeing the records, neither the first plaintiff has shown second plaintiff
as party to the interlocutory application nor the Court has directed to implead him as party to the application.
In view of the above, the order dated 07.03.2018 is hereby set aside and the trial Court is directed to implead the second plaintiff in the application in I.A.No.63 of 2017 either as petitioner or as respondent after obtaining consent from the second plaintiff. If the plaintiffs are not interested to do so, directed to dispose the application in accordance with law after giving due opportunities to all the parties. With the above observations and directions, the civil revision petition is allowed. Consequently, connected miscellaneous petition is closed. No costs.
25.06.2018 Internet: Yes/No cgi To The District Munsif-cum-Judicial Magistrate, Kattumannarkoil.
P.VELMURUGAN, J., cgi C.R.P.(NPD)No.1805 of 2018 and C.M.P.No.10151 of 2018 25.06.2018