[Cites 5, Cited by 0]
Gujarat High Court
Abhesing Rumalbhai Parghi vs State Of Gujarat on 10 March, 2026
NEUTRAL CITATION
R/CR.MA/3477/2026 ORDER DATED: 10/03/2026
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CONDONATION OF DELAY) NO.
3477 of 2026
In F/CRIMINAL MISC.APPLICATION/5396/2026
In R/SPECIAL CRIMINAL APPLICATION/3455/2016
==========================================================
ABHESING RUMALBHAI PARGHI
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MS. DIPA B ZALA(6937) for the Applicant(s) No. 1
MR CHINTAN DAVE, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 10/03/2026
ORAL ORDER
1. By way of filing present Criminal Misc. Application u/s 5
of the Limitation Act, the applicant prays to condone the delay
of 173 days in filing the restoration application to restore
captioned Special Criminal Application.
2. Heard learned counsel for the applicant and learned APP
Mr. Chintan Dave for the respondent State.
3. For condonation of delay, learned advocate for the
petitioner has averred following reasons:-
"5. That, however, on 14.07.2025, when the matter
was listed before this Hon'ble Court, due to
NEUTRAL CITATION
R/CR.MA/3477/2026 ORDER DATED: 10/03/2026
undefined
unavoidable circumstances, the learned advocate for
the applicant could not remain present despite the
matter being called out twice. Consequently, the
captioned Special Criminal Application once again
came to be dismissed for default.
6. That, the absence of the advocate on 14.07.2025
was neither deliberate nor intentional, but purely due
to circumstances beyond the control of the applicant.
The applicant has always been diligently pursuing the
matter and has no intention whatsoever to abandon
the proceedings."
4. Ordinarily, this Court would condone the delay of 173
days caused in preferring restoration application. However,
the peculiar facts of the present case are required to be
noticed.
5. The captioned Special Criminal Application u/s 226 and
227 of the Constitution of India was filed to quash and set
aside FIR being I - C.R. No.12 of 16 registered with Virpur
Police Station, Dist: Mahisagar on 28.4.2016. On 17.6.2016,
the Coordinate Bench of this Court passed an order directing
the investigating officer not to file charge sheet in the present
case without prior permission of this Court. Since, the
petitioner was enjoying interim relief and did not appear in
the Court, the matter continued to hover on the board. Thus,
the intention of the petitioner was to linger the matter, as
interim relief is granted in his favour. In the aforesaid
circumstances, the Coordinate Bench of this Court on
3.4.2024 granted last chance despite learned advocate for the
petitioner did not remain present in both the calls. Same
story continued to operate. Ultimately, the Coordinate Bench
NEUTRAL CITATION
R/CR.MA/3477/2026 ORDER DATED: 10/03/2026
undefined
of this Court vide order dated 2.12.2024 dismissed the Special
Criminal Application for non-prosecution. Thereafter, the
matter was restored and in restoration application, again
learned advocate for the petitioner did not remain present and
therefore, vide order dated 24.1.2025, again the Coordinate
Bench of this Court dismissed the petition for non-
prosecution. Again the matter was restored on the request of
the petitioner. Yet the petitioner continued his act of not
remaining present and enjoyed the interim relief. Thus, on
14.7.2025, this Court has passed following order:-
"On previous two times, learned advocate for the
applicant did not remain present, which constrained
the Court to dismiss the matter and thereafter, it was
restored.
Today when the matter is taken up for hearing,
learned advocate for the petitioner did not remain
present.
Hence, the petition is dismissed for non prosecution."
6. Thus, the petitioner approached this Court for
restoration of the matter fourth time after 173 days pleading
aforesaid reasons for condonation of delay.
7. Perusal of the aforesaid reasons, it appears that the
entire blame has been thrown upon the head of the advocate,
who was appearing for the petitioner in the matter.
8. The Hon'ble Apex Court in case of Rajneesh Kumar &
Anr v. Ved Prakash, reported in 2024 (14) SCALE 406,
noticed over a period of time a tendency on the part of the
NEUTRAL CITATION
R/CR.MA/3477/2026 ORDER DATED: 10/03/2026
undefined
litigants to blame their lawyers of negligence and
carelessness in attending the proceedings before the court.
The observation of the Hon'ble Apex Court reads as under:-
"[10] It appears that the entire blame has been thrown
on the head of the advocate who was appearing for the
petitioners in the trial Court. We have noticed over a
period of time a tendency on the part of the litigants to
blame their lawyers of negligence and carelessness in
attending the proceedings before the court. Even if we
assume for a moment that the concerned lawyer was
careless or negligent, this, by itself, cannot be a ground
to condone long and inordinate delay as the litigant owes
a duty to be vigilant of his own rights and is expected to
be equally vigilant about the judicial proceedings
pending in the court initiated at his instance. The
litigant, therefore, should not be permitted to throw the
entire blame on the head of the advocate and thereby
disown him at any time and seek relief."
[11]. In the aforesaid context, we may refer to a decision
of this Court in the case of Salil Dutta v. T.M. & M.C.
Private Ltd. reported in (1993) 2 SCC 185 , wherein
this Court observed as under:-
8. The advocate is the agent of the party. His acts and
statements, made within the limits of authority given to
him, are the acts and statements of the principal i.e. the
party who engage him. It is true that in certain
situations, the court may, in the interest of justice, set
aside a dismissal order or an ex parte decree
notwithstanding the negligence and/or misdemeanour of
the advocate where it finds that the client was an
innocent litigant but there is no such absolute rule that a
party can disown its advocate at any time and seek
relief. No such absolute immunity can be recognized.
Such an absolute rule would make the working of the
system extremely difficult. The observations made in
Rafiq [AIR 1981 SC 1400] must not be understood as an
absolute proposition. As we have mentioned
hereinabove, this was an on-going suit posted for final
NEUTRAL CITATION
R/CR.MA/3477/2026 ORDER DATED: 10/03/2026
undefined
hearing after a lapse of seven years of its institution. It
was not a second appeal filed by a villager residing away
from the city, where the court is located. The defendant
is also not a rustic ignorant villager but a private limited
company with its head office at Calcutta itself and
managed by educated businessmen who know where
their interest lies. It is evident that when their
applications were not deposed of before taking up the
suit for final hearing they felt piqued and refused to
appear before the court. May be, it was part of their
delaying tactics as alleged by the plaintiff. May be not.
But one thing is clear they chose to non-cooperate with
the court. Having adopted such a stand towards the
court, the defendant has no right to ask its indulgence.
Putting the entire blame upon the advocate and trying to
make it out as if they were totally unaware of the nature
or significance of the proceedings is a theory which
cannot be accepted and ought not to have been
accepted. (Emphasis supplied)
[12] As regards the law of limitation, we may refer to
the decision of this Court in Bharat Barrel & Drum MFG
Go. v. The Employees State Insurance Corporation,
reported in 1971 2 SCC 860, wherein this Court held as
under:-
'The necessity for enacting periods of limitation is to
ensure that actions are commenced within a particular
period, firstly to assure the availability of evidence
documentary as well as oral to enable the defendant to
contest the claim against him; secondly to give effect to
the principle that law does not assist a person who is
inactive and sleeps over his rights by allowing them
when challenged or disputed to remain dormant without
asserting them in a Court of law. The principle which
forms the basis of this rule is expressed in the maximum
vigilantibus, non dermientibus, jura subveniunt (the laws
give help to those who are watchful and not to those who
sleep). Therefore, the object of the statutes of limitations
is to compel a person to exercise his right of action
within a reasonable time as also to discourage and
suppress stale, fake or fraudulent claims.' (emphasis
supplied)."
NEUTRAL CITATION
R/CR.MA/3477/2026 ORDER DATED: 10/03/2026
undefined
9. In view of above, present Criminal Misc. Application,
whereby the petitioner has thrown the entire blame on the
head of the advocate and thereby disown him at any time and
seek relief is not permissible. Rather, it appears that the
petitioner is enjoying the interim relief since 2016 in the form
of direction to the investigating officer not to file charge sheet
without prior permission of the Court. The offence against the
petitioner is u/s 409 of the IPC. The petitioner accused is a
police constable and he has kept the papers with him despite
he has been transferred from one station to another station.
Looking to these aspects, according to this Court, the
petitioner has failed to establish his germane conduct and
thus, this Court is not inclined to exercise discretion and to
condone the delay.
10. Accordingly, present Criminal Misc. Application stands
dismissed. Consequently, registration of Criminal Misc.
Application for restoration is refused.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
