cri.wp.142.12
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL WRIT PETITION NO. 142 /2012
Hetram Kashinath Shende
Aged about 42 years, occu: Service
Jail Quarters, Central Jail
Nagpur. ...PETITIONER
ig v e r s u s
1) Sangeeta w/o Hetram Shende
Aged about 35 years, occu: Household
R/o C/o Vitthalrao Sahane, Plot No.25,
Balajee Nagar, Infront of Mahakalkar Lawns
Pardi Bhandara Road,
Nagpur
2) Prakash s/o Hetram Shende
Aged 10 years, being Minor
Through Guardian mother
Petitioner no.,1 ...RESPONDENTs
...........................................................................................................................
Mrs. Sonali M Saware, Advocate for petitioner
Mr. K K Soloman Adv.for respondents
............................................................................................................................
CORAM: M.L.TAHALIYANI, J.
DATED : 3rd October, 2012
ORAL JUDGMENT :
1. This Court has on 30th August, 2012 appointed Mrs S. W.
Deshpande, learned Advocate to represent the respondents 1 and 2.
::: Downloaded on - 09/06/2013 19:12:47 :::cri.wp.142.12 2 Since the Advocate for the respondents 1 and 2 Mr K K Solomon has now appeared and he is wiling to continue with the matter, Smt. S.W.
Deshpande, Advocate is discharged.
2. Rule. Rule made returnable forthwith. Heard finally by consent of parties. Heard Smt. Sonali Saware, learned counsel for the petitioner and Mr. K.K. Solomon, learned counsel for respondents 1 and 2. The petitioner has been directed by the Family Court to pay an amount of Rs. 1700/- to the respondents 1 and 2 by way of monthly maintenance. The respondent no.1 and 2 are the wife and son respectively, of the petitioner.
3. The above-mentioned order granting maintenance was passed ex-parte on 29th October, 2004. The petitioner filed an Application bearing MJC No. 5/2005 for setting aside the said ex-parte order. The said MJC No. 5/2005 came to be dismissed for default on 20th April, 2006. The petitioner, therefore, filed a fresh Application being MJC No. 9/2010 for setting aside the order of dismissal of earlier MJC No. 5/2005. MJC No. 9/2010 was beyond limitation period.
Therefore, an Application for condonation of delay was filed. The prayer of the applicant for condonation of delay has been rejected by ::: Downloaded on - 09/06/2013 19:12:47 ::: cri.wp.142.12 3 the Family Court by the impugned order.
4. Learned counsel Mrs.S.M.Saware for the petitioner has submitted that the delay in filing MJC No.9/2010 for setting aside the dismissal of MJC No. 5/2005 was caused because the petitioner did not know that MJC No. 5/2005 had been dismissed on 20th April, 2006. He was not informed by his Advocate. He came to know about the dismissal only when execution proceedings were initiated against him in the year 2009. It is submitted by Mrs. Saware that the petitioner may not be punished for the mistake committed by his lawyer.
She has relied upon the judgment of this Court reported at AIR 2004 BOM 8 in the matter of Ashok Ravji Vadodriya vs. Municipal Corporation of Greater Bombay. The observations on which reliance is placed runs as under :-
"6............................ It is a duty of an advocate engaged for conducting a cause on behalf of suitor to keep himself fully informed of the proceedings in the Court and be present when his case is called out. The litigant cannot be said to have any responsibility, legal and otherwise, after having engaged the services of an advocate and Vakalatnama is filed in his behalf, to attend the Court to take dates of the proceedings and ::: Downloaded on - 09/06/2013 19:12:47 ::: cri.wp.142.12 4 convey them to his advocate, whether Vakalatnama sets out all the terms of the agreement between the advocate and his client or it may be that it may not set out all such terms. It is not the job of the client........................"
She has also relied upon the judgment of the Hon'ble Supreme Court reported at AIR 1981 SC 1400 in the matter of Rafiq and another vs. Munshilal and another. Reliance is placed on the following portion of the judgment :-
"3. ..................... The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. "
Reliance has also been placed on the judgment of this Court reported at 2005(3) Mh.L.J.681 in the matter of Shivaji Kadge and ::: Downloaded on - 09/06/2013 19:12:47 ::: cri.wp.142.12 5 others vs. Chief Officer, Municipal Council, Kannad. The portion relied upon by Mrs. Saware, is part of the judgment relied upon by this Court, reported at AIR 1987 SC 1353, which runs as under :-
"5................... 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.........."
5. I have considered the submissions made by Mrs. Saware, learned counsel for the petitioner, in the light of the judgments cited by her. I agree with Mrs. Saware that the innocent litigant should not suffer for the mistake - deliberate or intentional - on the part of the Advocate. However, at the same time, the litigant who claims to be innocent, has to demonstrate that he was diligent enough and that in spite of due diligence on his part the Advocate engaged by him defaulted which resulted in his suffering. The learned trial Court has examined this argument submitted on behalf of the petitioner. It is categorically stated by the learned trial Court that the vague statements have been made by the petitioner and that petitioner has not ::: Downloaded on - 09/06/2013 19:12:47 ::: cri.wp.142.12 6 even stated the approximate date on which he came to know about dismissal of his MJC No.5/2005. There is no material to indicate that it was purely on account of default on the part of the Advocate. In the circumstances, it is difficult even to calculate as to what could be the delay even if it is counted from the date of knowledge. The delay is of four years and four months. Such a huge delay has to be explained by submitting a reasonable and acceptable explanation. The delay of four years and four months cannot be condoned on the basis of vague allegations against the Advocate and on the pretext of some minor illness. The petitioner is working as a Guard in Central Prison, Nagpur. It is not that he is a rustic villager and did not know anything of the court proceedings. As such, I do not find any infirmity in the order of learned trial Court. The petition deserves to be dismissed and is accordingly dismissed. Rule discharged.
JUDGE sahare ::: Downloaded on - 09/06/2013 19:12:47 :::