Bombay High Court
Hetram Kashinath Shende vs Unknown on 3 October, 2012
Bench: M.L. Tahaliyani
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.
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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
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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
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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
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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
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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
