C. RAVEENDRAN Vs. SREEKUMAR

JUDGEMENT

(1.) THE seventh defendant who was set exparte earlier filed applications to set aside the order setting him exparte and to receive the written statement filed. The court below has by the orders impugned set aside the order setting the seventh defendant exparte and received the written statement filed by him on terms. This order is under challenge at the instance of the plaintiff in this original petition under Article 227 of the Constitution of India. The court below has the jurisdiction to set aside the order setting the seventh defendant exparte and also condone the delay in filing the written statement. This is notwithstanding the negative language employed in the proviso to order VIII Rule I of the Code of Civil Procedure. The court below has exercised its discretion in resorting to this course particularly since the seventh defendant was impleaded only subsequently in the suit. The power of the court to condone the delay and receive the written statement can be exercised with caution (see Kailash V/s. Nanhku, : (2005) 4 SCC 480 and Mohammed Yusuf V/s. Faij Mohammad and others : (2009) 3 SCC 513).

(2.) THE order impugned in this original petition is therefore affirmed and the original petition is dismissed. The plaintiff examined as PW1 is entitled to lead further evidence in denial of the contention raised in the written statement filed by the seventh defendant. The time fixed for payment of costs as directed by the court below is also extended till 31.07.2012. The amount can either be paid to the counsel for the respondent appearing in this original petition or deposited in the court below.