The captioned writ petition is filed by the

defendant No.2 feeling aggrieved by the order of the

learned judge passed on I.A.No.16 filed under Order 9

Rule 7 read with Section 151 of CPC. The 1^st

respondent/plaintiff

has

instituted

a

suit

in

O.S.No.75/2010 seeking relief of specific performance of

contract. The present petitioner who is arrayed as

defendant No.2 failed to contest the proceedings and

therefore, the learned judge has placed the present

3

petitioner exparte and has proceeded with the suit. The

mother of petitioner and the brother who are arrayed as

defendant Nos. 1 and 3 contested the proceedings by

filing independent written statement. The present

petitioner filed an application requesting the Court to set

aside the order placing present petitioner as exparte and

permit the petitioner to contest the proceedings. In the

application, the petitioner contended that since his

mother assured him that they will defend the suit, the

petitioner being a surgeon at KIMS hospital, Bengaluru

was unable to contest the proceedings. The petitioner

further claims that believing his mother and brother and

that his right will be effectively defended did not choose

to contest the proceedings. However, now the petitioner

claims that there is some difference of opinion between

himself and 2^nd respondent and therefore, seeks leave of

the Court to contest the proceedings. The said

application was strongly resisted by the plaintiff by filing

detailed objections. Learned judge has rejected the

4

application on the ground that this application is filed

after lapse of 6 years 9 months. Learned judge was of

the view that summons was served on the present

petitioner

way

back

in

2011

and

therefore,

no

satisfactory reasons are forthcoming in the affidavit filed

in support of the application and therefore, petitioner

cannot be permitted to come on record and contest the

proceedings.

Learned counsel appearing for the petitioner

would submit to this Court that if he is permitted to

contest the proceedings, the 2^nd respondent who is now

seriously objecting to recall the order placing him as an

exparte would not be prejudiced. He would further

contend that petitioner will adopt the written statement

filed by his mother and would not seek reopening of the

plaintiff9s case. However, he pleads and requests this

Court to permit the petitioner to contest the proceedings

by adopting written statement of his mother.

5

In the light of above statement, I am of the

view

that

the

order

under

challenge

requires

interference. However, it is made clear that petitioner

under garb of adopting the written statement filed by

the mother, cannot seek reopening of the evidence. If

3^rd defendant has exhaustively cross examined the

plaintiff, the same would enure to the benefit of the

present 2^nd defendant also. However, since 3^rd defendant

is yet to conclude his evidence, the present petitioner is

at liberty to lead rebuttal evidence if he so chooses to.

With a view to do substantial justice to the parties and

having regard to the fact that statement is made by the

learned counsel for petitioner that he would adopt the

written statement filed by the mother and to advance

justice, I deem it fit to permit the petitioner to contest

the proceedings. Further it is made clear that petitioner

shall not drag on the matter under the garb of leading

rebuttal evidence.

6

4.

With

these

observations,

I

pass

the

following:

ORDER

The writ petition is allowed.

The

order

dated

28.08.2017

passed

in

O.S.No.75/2010 on the file of the Prl. Civil Judge (Sr.Dn)

at Hassan on I.A.No.16 is set aside. Consequently,

I.A.No.16 is allowed.

The petitioner is permitted to adopt the written

statement filed by the mother-defendant No.1. If he

intends to lead any rebuttal evidence, he is entitled to

do so.

Sd/-

JUDGE

NS