Sufficient cause for non-appearance under Order IX Rule 9 of the CPC must be evaluated based on the circumstances of the specific date of dismissal, and a party cannot be penalized for antecedent conduct or previous negligence when deciding a restoration application.

ORDER

Heard Sri Mahesh Raje, learned counsel appearing for the petitioner/plaintiff and none appeared on behalf of the respondents despite service of notice. Perused the material available on the record.

2. This Civil Revision Petition is preferred by the petitioner/plaintiff aggrieved by the order dated 22.11.2021 (hereinafter referred to as “the impugned order”) passed by the learned VII Additional District Judge (FTC), Nirmal in C.M.A No. 31 of 2018. By the impugned order, the learned Trial Court dismissed the petitioner’s appeal filed for setting aside the order and decreetal order dated 07.06.2018 passed by the learned Junior Civil Judge, Bhainsa in I.A.No.69 of 2017 in O.S.No.63 of 2011.

3. For the sake of convenience, the parties herein are referred to as per their status before the learned Trial Court.

BRIEF FACTS

4. The factual backdrop leading to the present revision as borne out from the record, is that the lis originates from O.S. No.63 of 2011 filed by the petitioner/plaintiff seeking declaration of title and recovery of possession in respect of the suit schedule property against the respondents/defendants. However, the said suit was dismissed for default on 24.04.2017. Subsequently, the petitioner/plaintiff filed an interlocutory application vide I.A.No.69 of 2017 under Order IX Rule 9 CPC, to set aside the said dismissal order. The learned Trial Court dismissed the said interlocutory application by order dated 07.06.2018.

5. Aggrieved thereby, the petitioner/plaintiff preferred C.M.A.No.2 of 2018 on the file of learned Senior Civil Judge Court, Nirmal. Thereafter, the said appeal was transferred to the Court of learned VII Additional District Judge (FTC), Nirmal and re-numbered as CMA No.31 of 2018. The learned appellate Court dismissed the said appeal vide order dated 22.11.2021. Challenging the dismissal of CMA No.31 of 2018, the present Civil Revision Petition has been preferred by the petitioner/plaintiff.

SUBMISSIONS ON BEHALF OF THE PETITIONER/ PLAINTIFF

6. The learned counsel for the petitioner/plaintiff contended that the learned appellate court failed to consider that the restoration petition was filed within prescribed period of limitation and without any delay. It is further contended that once the learned Trial Court had recorded a finding that the reason assigned by the petitioner/plaintiff was genuine, it ought not to have dismissed the application. The learned appellate Court, it is urged, failed to appreciate this aspect.

ISSUE FOR CONSIDERATION:

7. Upon consideration of the submissions of the learned counsel for the petitioner/plaintiff and perusing the material on record, the only issue that arises for consideration in this civil revision petition is:

“Whether the impugned order suffers from any illegality, irregularity, or jurisdictional error warranting interference by this Court in exercise of its supervisory jurisdiction?”

ANALYSIS:

8. At the outset, it is pertinent to note that the respondents/defendants, despite of service of notices failed to engage any counsel before the learned Trial Court, however, they reported that they do not have any means to engage counsel. Accordingly, the respondents/defendants were advised to avail free legal aid by approaching Mandal Legal Services Authority, however, thereafter, the respondents/defendants did not appear before it or filed any counter. Hence, the respondents/defendants were set