A defendant retains the right to participate in proceedings even after the rejection of an application under Order IX, Rule 7, provided they appear timely and engage with the trial process.

ORDER :

SANDEEP SHAH, J.

1. The petitioner, by way of the present writ petition, has challenged the order dated 22.05.2018 (Annexure-3) passed by the learned District Judge No.3, Bhilwara, Camp Mandalgarh, whereby though he dismissed the application under Order IX, Rule 7 CPC filed by the respondent No.3, however, he permitted to the respondent to contest in the proceedings in future from the date of the order. The petitioner has also challenged the order dated 25.09.2024, by which application filed by the petitioner under Section 151 CPC for not permitting the respondent No.3 to appear in the proceedings was dismissed.

2. The brief facts of the case are that the petitioner filed a suit for declaration and permanent injunction against the defendants, while submitting that the property in dispute along with some portion of agricultureal land came in his share in pursuant to the partition dated 30.04.1985 and the respondents defendants attempted to forcibly take possession of the petitioner’s land. The respondent No.3- Laxman Singh though did not file a written statement, however, on 07.08.2008, he made a statement before the trial Court adopting the written statement filed by defendant No.1. Subsequently, on 04.10.2008, ex parte proceedings were initiated against respondent No.3 (arrayed as defendant No.5). The respondent No.3 filed an application under Order IX, Rule 7 of CPC while the matter was fixed at the stage of framing of issues and prayed for setting aside the ex-parte proceedings initiated against him. He further asserted that he came to know about the ex-parte proceedings, very late as he engaged the counsel, however, the counsel had not put in appearance and post coming to know of default the application was moved. The learned trial Court by way of the order impugned dated 22.05.2018 has held that the respondent had not set out grounds to condone the delay in filing the application and no reasons were given as to why he did not put in appearance for a period of ten years and therefore, dismissed the application under Order IX, Rule 7 CPC. The learned trial Court, however, permitted the respondent No.3 to participated in the future proceedings in the suit. The matter was thereafter fixed for evidence of the plaintiff. At a later stage, the respondent No.3 filed his affidavit on 21.08.2024, in support of the evidence when the evidence of defendants started. It was at this stage that a writ petition being S.B. Civil Writ Petition No.14975/2024 came to be filed after a delay of around six years by the petitioner challenging the order dated 22.05.2018. The writ petition in question was listed today and has been withdrawn with liberty to challenge the order dated 22.05.2018, in the present writ petition. Liberty prayed for has been granted while disposing of the writ petition. Post filing of the affidavit, the petitioner filed an application under Section 151 CPC raising objection with regard to the respondent participating in the proceedings and the application has been rejected vide order dated 25.09.2024.

3. Being aggrieved against the above mentioned orders, the present writ petition has been filed.

4. Learned counsel for the petitioner submits that once the application under Order IX, Rule 7 was rejected, there was no occasion available for the trial Court to permit the petitioner to participate in the future proceedings in the same suit and the above mentioned order is against the very intent of provisions of Order IX, Rule 7 of CPC. He further submits that when the application under Order IX, Rule 7 was reje