Punjab-Haryana High Court
Nitesh Housing Finance Pvt Ltd vs Ajay Mehra on 23 April, 2024
Neutral Citation No:=2024:PHHC:056699
2024:PHHC:056699
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
227 CRM-A-2064-MA-2017
Date of Decision : April 23, 2024
NITESH HOUSING FINANCE PVT LTD
-APPLICANT/APPELLANT
V/S
AJAY MEHRA
-RESPONDENT
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Suresh Kumar Arya, Advocate
for the applicant/appellant.
Mr. S.S. Majithia, Advocate
for the respondent.
***
KULDEEP TIWARI, J. (ORAL)
1. The instant application, seeking grant of leave, is directed
against the order dated 15.07.2017, rendered by learned Judicial
Magistrate Ist Class, Amritsar, whereby, merely owing to the complainant
(applicant/appellant herein) remaining unrepresented, the complaint
instituted by him under Section 138 of the Negotiable Instruments Act,
1881 (hereinafter referred to as the 'N.I. Act') was dismissed in default
for want of prosecution, and, the accused (respondent herein) was
acquitted.
2. Since the principal grievance canvassed by the applicant/
appellant herein, hinges upon dismissal of his complaint, merely owing to
him remaining unrepresented before the learned Magistrate concerned,
therefore, this Court deems it inessential to augment this remand order
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with factual matrix of the present case, and consequently, proceeds to pen
down an opinion upon the grievance (supra).
3. The learned counsel for the applicant/appellant submits that,
prior to the dismissal of complaint (supra) for want of prosecution, the
applicant/appellant and his counsel had been regularly appearing before
the learned Magistrate concerned. The defence proffered by the
applicant/appellant behind him remaining unrepresented before the
learned Magistrate concerned, is that, owing to some communication gap,
his counsel had inadvertently noted down wrong date of hearing.
Therefore, there was no mala fide intention on the part of the
applicant/appellant for not appearing before the learned Magistrate
concerned, rather his absence was bona fide.
4. This Court has heard the learned counsels for the contesting
litigants and also perused the entire record.
5. For the sake of convenience and ready reference, the
impugned order dated 15.07.2017 is reproduced hereinafter:-
"Despite awaiting appearance of complainant none has
turned up on behalf of complainant. Perusal of file shows
that none on behalf of complainant had appeared on the last
date of hearing and even today none has turned up on behalf
of complainant. Case called several times since morning but
neither complainant nor his counsel nor any person on his
behalf is appearing whereas accused is present since
morning. It is 3.45 P.M. As such, the present complaint is
dismissed in default for want of prosecution. Accused is
acquitted. His bail bonds stands discharged. File be
consigned to record room."
6. The inference, as becomes generated from the record is that,
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the applicant/appellant could have, in no way, derived any benefit from
his absence in the complaint (supra), rather it would be him, whose rights
would be and have indeed been adversely affected in such circumstances.
The absence of the complainant or his counsel cannot be enure to the
benefit of the respondent/accused. This inference garners strength from
the fact that, there is nothing available on the record, which may even
remotely suggest that there was any mala fide intention on the part of the
applicant/appellant behind his absence from the proceedings. Moreover,
since the applicant/appellant had remained unrepresented only on two
hearings, therefore, the learned Magistrate concerned, instead of
straightway adopting such a harsh approach of dismissing the complaint
(supra) for want of prosecution, ought to have exercised some leniency,
inasmuch as, mere absence of the complainant on two dates, cannot
constitute the bedrock for dismissal of the complaint.
7. Gainful reference in the above regard can be made to
Purushotam Mantri v. Vinod Tandon alias Hari Nath Tandon, 2008(3)
Punjab Law Reporter 595 (P&H), wherein, it has been observed that "..it
would be too harsh on the petitioner to non-suit him merely for his non-
appearance on one date...."
8. Furthermore, reference can also be made to case titled as
"Narender Parashar Versus Jagbir Singh", Law Finder Doc Id #
192748, wherein, a Co-ordinate Bench of this Court, while dealing with
an identical issue, has made the hereinafter extracted observations:-
"...The doctrine of 'audi alteram partem' too contemplates
that no one should be condemned unheard. If the impugned
order is allowed to hold ground without any fault of the
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appellant, he will feel prejudiced in his right. In the words of
F. Bucan "Nothing rankles more in the human heart than
brooding sense of injustice." If the appellant is not afforded
the opportunity to substantiate the allegations contained in
complaint by leading evidence, it will go on rankling in his
mind that injustice has been done to him. The Courts are
here to administer justice...."
9. Also, in case titled as "Nitesh Kumar Vs. Sonu alias Sunil
Kumar", Criminal Appeal No. AS-88 of 2016, Decided on: 06-04-2017,
a Co-ordinate Bench of this Court has held that the cause of merit and
substantial justice is to prevail over technical consideration. The relevant
paragraph of this judgment is reproduced hereinafter:-
"8. In the facts and circumstances of the present case, I find
that the impugned order passed by the learned Judicial
Magistrate Ist Class, Gurgaon, has caused miscarriage of
justice. If this order is not set aside, the
complainant/appellant will suffer irreparable loss. It is
settled law that the rights of the parties should be decided on
merit as far as possible. The Court should do substantial
justice between the parties and should not go into the
technicalities of the law. Where technical consideration and
merit or cause of substantial justice are pitted against each
other, the cause of merit and substantial justice is to
prevail."
10. In view of the law laid down in judgments (supra), as also
taking into account the well settled proposition of law that, owing to fault
of counsel, a party to litigation cannot be made to suffer, and that, the
rights of the parties should be decided on merit as far as possible,
therefore, this Court deems it just and appropriate to set aside the
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impugned order dated 15.07.2017, and, to remand the complaint (supra) to
the learned Magistrate concerned, otherwise the applicant/appellant will
suffer an irreparable loss.
11. Consequently, the impugned order dated 15.07.2017 is set
aside and the complaint (supra) is ordered to be restored to its original
number and its proceedings shall continue from the stage from where it
was dismissed by the learned Magistrate concerned. The learned
Magistrate concerned is directed to proceed further as per law, after
giving notice to the parties concerned.
12. Disposed of accordingly.
(KULDEEP TIWARI)
April 23, 2024 JUDGE
devinder
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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