Civil Procedure Code's mandate under Order 9 Rule 13 requires sufficient cause for non-appearance, beyond mere negligence; previous criminal acquittal does not negate civil liability.

JUDGMENT :

Sanjeeb K. Panigrahi, J.

1. In filing this FAO, the Appellants have challenged the order of dismissal dated 17.09.2007 passed by the learned Ad hoc Additional District Judge-cum-FTC-1, Cuttack in CMAPL No.5 of 2007.

I. FACTUAL MATRIX OF THE CASE

2. The brief facts of the case are as follows:

(a) In order to establish her right, title and interest over the property in question the original Respondent being the plaintiff named Nirmala Rana filed a title suit bearing T.S. No.80 of 1999 before the Court of learned Civil Judge (Sr. Divn.), IInd Court, Cuttack seeking following relief:-

(i) Let a decree for damage of Rs.2,07,000/- be passed against the Defendants (present Appellants).

(ii) Let cost of the suit be decreed in favour of the plaintiff.

(b) The cause of action to file the above noted suit arose on 17.05.1998 when the defendants refused to make the damage good by making necessary payments. After filing of the above noted Suit though the Defendants/Appellants entered their appearance through concerned Advocates, they did not file necessary written statement which was a lacuna on the part of the defendants.

(c) It is pertinent to mention here that the occurrence arises out of the allegation made by the husband of the plaintiff in the FIR dated 17.05.1998 lodged at the Salipur Police Station vide Salipur P.S. Case No.172 dated 17.05.1998. Accordingly, G.R. Case No.343 of 1998 was registered in the Court of learned JMFC, Salipur. Upon registration of the said G.R. Case the learned J.M.F.C, Salipur refused to take cognizance of the offence under Section 307 of the I.P.C and the said order was confirmed by this Court vide order dated 02.08.2002 passed in Criminal Revision No.260 of 1999.

(d)The Appellants who were described as accused persons, have already been acquitted by the judgment dated 24.09.2024 passed by the learned JMFC, Salipur in G.R. Case no.343/1998 and Trial No.171/1999. Neither any appeal nor has any revision been preferred against the said order / judgment dated 24.09.2024.

(e) On 12.03.2003 as per the administrative instruction of the learned District Judge, Cuttack the case record of the above noted suit was transferred to the Court of learned Ad hoc Additional District Judge (FTC No.1), Cuttack. On 15.10.2004, the said suit was decreed ex parte against the defendants with cost. Accordingly, the decree was drawn on 06.11.2004. In the year 2006, the Plaintiff as DHR filed Execution Case bearing No.02 of 2006.

(f) On 16.01.2007, the defendants/appellants came to know regarding ex parte judgment and decree of the said suit when the process server came to the village of the defendants and was found making arrangement for proclamation for attachment of property in question. Soon after getting the information regarding ex parte judgment and decree the Defendants/Appellants on 17.01.2007 filed a petition under Order 9 Rule 13 of C.P.C for setting aside of the ex parte decree along with a petition for condonation of delay which was registered as CMAPL No.5 of 2007.

(g)Accordingly, the learned Ad hoc Additional District Judge-cum-FTC-1, Cuttack vide order dated 17.09.2007 dismissed the said CMAPL. Being aggrieved by the said order dated 17.09.2007 passed in the above noted FAO the Appellants have preferred the present FAO.

II. SUBMISSIONS ON BEHALF OF THE APPELLANTS

3. Learned counsel for the Appellants earnestly made the following submissions in support of his contentions:

a. Learned counsel for the Appellants submits the Suit in question was not maintainable during pendency of the above noted criminal