ORDER

This misc. petition has been preferred by defendant 2/petitioner challenging the order dated 15.09.2022 (Annexure P/15) passed by Addl. Civil Judge Senior Division, Rampur Baghelan, District Satna in Civil Suit No.492- A/2010, whereby learned court below has dismissed the second application under Order 9 Rule 7 CPC r/w section 5 of the Limitation Act.

2. Record shows that previous application under Order 9 Rule 7

CPC was dismissed by the trial court vide order dated 04.02.2017, which was challenged before this Court by filing W.P. No4040/2017. During pendency of W.P. No.4040/2017 there were compromise talks and in pursuance of which the parties filed joint application dated 03.11.2019 in W.P. No.4040/2017 (Annexure P/7) supported by affidavits of petitioner/defendant 2-Smt. Babita Singh and plaintiff-Smt. Abha Singh, which was taken into consideration by this court on 04.12.2019 and in view of the compromise, as mentioned in para 4 of the application dated 03.11.2019, this Court permitted the petitioner to withdraw the writ petition, but later on the compromise could not be arrived at between the parties, therefore, the petitioner moved another application under Order 9

Rule 7 CPC r/w section 5 of the Limitation Act, which has been dismissed by learned court below vide impugned order dated 15.09.2022.

3. Learned counsel for the petitioner/defendant 2 submits that the case is at its primary stage and plaintiff's evidence has not yet begun and if the petitioner is not permitted to file written statement, her case will be prejudiced and the suit filed by the plaintiff/respondent 1 may be decreed in absence of denial of the averments made in the plaint. Accordingly, he prays for allowing the application under Order 9 Rule 7 CPC.

4. Learned counsel appearing for respondent 1/plaintiff submits that in view of dismissal of previous application vide order dated 04.02.2017 and thereafter in view of dismissal of review petition no.1125/2020 on 27.07.2022 filed to review the order dated 04.12.2019, the learned trial court has not committed any illegality in passing the impugned order. He submits that the defendant 2 is trying to protract the litigation and there is no sufficient cause for allowing the application under Order 9 Rule 7 CPC.

5. Heard learned counsel for the parties and perused the record.

6. Undisputedly, the application filed by the petitioner/defendant 2

under Order 9 Rule 7 CPC was dismissed firstly on 04.02.2017 with liberty to the petitioner to participate in further proceedings, which order was challenged by the petitioner by filing W.P. No.4040/2017, which was permitted to be withdrawn on 04.12.2019 in the light of application filed under Section 151 CPC (Annexure P/7). Undisputedly, in pursuance of said application under Section 151 CPC, the parties did not settle their dispute and now the suit is pending to be decided on merits. In view of the subsequent development, the petitioner again moved application under Order 9 Rule 7 CPC r/w Section 5 of the Limitation Act, which has been dismissed by learned trial court on the ground of previous dismissal of application. As such in my considered opinion, in the light of joint application filed by defendant 2 and plaintiff under Section 151 CPC dated 03.11.2019 (Annexure P/7) there is sufficient ground for allowing the application under Order 9 Rule 7 CPC r/w Section 5 of the Limitation Act.

7. Accordingly, in the interest of justice and upon payment of cost of Rs.10,000/-, (Rs.Ten Thousand) payable to respondent 1/plaintiff, the misc. petition is allowed with the further direction to the learned trial court to permit the petitioner/defendant 2 to file the written statement on or before 19.12.2022, certainly upon payment of cost of Rs.10,000/-. Thereafter learned trial court is free to proceed further with the suit.

8. Since the original civil suit is pending since the year 2009, therefore, trial court shall take every endeavour to decide the suit within a period of one year