Madhya Pradesh High Court
Narmada Motors vs Shri Sunil Kumar Lauvanshi on 19 June, 2015
M.Cr.C.No.7232/2015
M.Cr.C.No.7232/2015
19.6.2015 Shri Wajid Hydar, counsel for the applicant.
The present matter is filed for restoration of
M.Cr.C.No.9518/2013, which was dismissed in
compliance to the order dated 12.12.2013, in which
the respondent was not served and therefore, there
is no need to hear the respondent.
Heard the learned counsel for the applicant on the main application of restoration and application for condonation of delay.
The facts of the case, in short, are that, the applicant has filed an application for grant of leave to appeal against the respondent challenging the judgment dated 2.5.2013 passed by JMFC, Hoshangabad in criminal complaint case No.1174/2011, whereby the JMFC has acquitted the respondent from the charge of offence under Section 138 of Negotiable Instruments Act. On 5.8.2013, the case was listed before the Court and none appeared for the applicant. However, the Court has given one opportunity to make the default good within 3 days. Thereafter, again the case was listed on 12.12.2013. On that day, none appeared for the applicant. However, the single Bench of this Court gave a further opportunity of two weeks to make the default good but, a peremptory order has also been M.Cr.C.No.7232/2015 passed and in consequence of order dated 12.12.2013, leave application was dismissed in want of prosecution. The applicant has moved the present restoration application on 1.5.2015 alongwith application for condonation of delay. Though the Registry of this Court did not give any serial number to that application.
After hearing the learned counsel for the applicant, it appears that the learned counsel for the applicant took two main grounds in the case. Firstly, that delay may be liberally condoned because the case was dismissed due to fault of the Advocate and party should not suffer for the mistake committed by the counsel. He has placed his reliance on various judgments passed by Hon'ble the Apex Court in case of "Rafiq and another Vs. Munshilal and another", [AIR 1981 SC 1400], "State of Karnataka Vs. Kuppuswamy Gownder", [AIR 1987 SC 1354] and "N.Balakrishnan Vs. M.Krishnamurthy", [AIR 1998 SC 3222] to show the view of Hon'ble the Apex Court that delay may be condoned in favour of the concerned applicant, if a good cause has been shown or the matter was dismissed due to mistake committed by the Advocate. The second contention which was taken by the learned counsel for the applicant that it is the M.Cr.C.No.7232/2015 settled view of the Apex Court that due to mistake committed by an Advocate, the litigant should not be punished and therefore, matter be restored again.
So far as the first point of the applicant as advanced by his counsel is concerned, in criminal cases, there is no specific provision for restoration of any matter, if dismissed in absence of the party or Advocate and therefore, that matter is to be considered under the inherent powers of this Court as provided in Section 482 of the Cr.P.C. and in the Limitation Act there is no time limit provided to move a petition under Section 482 of the Cr.P.C. Hence, the Registry of this Court did not mark the application filed for condonation of delay as an interlocutory application and no serial number was given to that application. Hence, in the present case, there is no reason to discuss about the grounds to condone the delay in filing the present application. However, delay in filing the application may be taken into consideration while assessing the good cause to restore the previous matter.
It would be apparent from the case file that after filing the leave application, default was pointed out by the Registry and case was listed on 5.8.2013 as well as on 12.12.2013 but, none appeared for the applicant on those two dates and therefore, the M.Cr.C.No.7232/2015 matter was dismissed. Consequently, the previous matter was dismissed on 12.12.2013 and application for its restoration was filed on 1.5.2015 i.e. with delay of 18 months. Learned counsel for the applicant has vehemently argued that for mistake of the Advocate, the litigant should not suffer. He has placed his reliance upon the judgment passed by Apex Court in case of Rafiq (supra), in which it has been held that party should not suffer for misdemeanour or inaction of his counsel.
It is true that parties should not suffer for any mistake or misdemeanour of his counsel but, it is to be also considered that such a ground cannot be so much stretched in favour of the litigant. An Advocate shows a complete inaction for 18 months. If such type of restoration application is allowed then, the Advocate would be free on the instruction of his party not to appear before the Court when case is listed for some purpose and as and when he thinks fit, he may apply for restoration because there is no limitation prescribed to move a petition under Section 482 of the Cr.P.C. on the basis of misdemeanour of the Advocate. Anybody cannot be permitted to defeat the rules and law and to act before the Court in such a manner, so that Court M.Cr.C.No.7232/2015 would lose its control over the pendency of cases and litigations. In such cases, it is to be examined as to whether it is a mistake of an Advocate or a mistake of litigant. When a litigant engages an Advocate then, the Advocate who is expected to be a Court officer has to assist not only the litigant and to give advice, so that litigant may file a matter before the concerned Court as well as he has to assist the Court and therefore, it is not the duty of the Advocate to act as a servant of the litigant and inform him about the various dates of litigation to his client but, it is the duty of the litigant to remain in contact with his Advocate and to get information about the development of the case proceedings. In the present case, it appears that on the instructions of the applicant, the learned counsel for the applicant has filed a leave application but, thereafter, he did not receive any instruction from the applicant and therefore, he did not appear before the Court when case was listed for considering the default in filing the leave application on two consecutive dates i.e. on 5.8.2013 and 12.12.2013. In the previous leave application, the Registry has pointed out that Court fees deposited by the applicant was deficit by Rs.15/- and incorrect particulars were mentioned in para 4 of the M.Cr.C.No.7232/2015 application. It is not expected from an Advocate to deposit the Court fees from his pocket. It was the duty of the litigant i.e. the applicant to deposit the deficit Court fees before the Court with help of his Advocate and therefore, the default pointed out by the Registry could be cured, if the applicant would have taken any interest to do so and therefore, prima facie it cannot be said that for such dismissal, the applicant was not responsible. When an Advocate is working before the High Court, he must be aware of the status of his case through the cause list and it is not possible for an Advocate, not to appear before the Court for two consecutive dates only because he was busy in another Court. If the applicant was in contact of his counsel then, certainly he could know about the status of his case, soon after its dismissal in default, an application for restoration would have been moved but, delay of 18 months in filing the restoration application indicates that in those 18 months, he did not contact his Advocate and therefore, his Advocate could not move an application for restoration in want of instructions. Hence, it is a gross mistake of the applicant and it cannot be said that it was a mistake committed by the Advocate for which the applicant shall not be punished.
M.Cr.C.No.7232/2015In this connection, a judgment passed in the case of "Balwant Singh (dead) Vs. Jagdish Singh and others" [(2010) 8 SCC 685] may be referred in which, the Apex Court has referred a judgment of "Perumon Bhagvathy Devaswom Vs. Bhargavi Amma" [(2008) 8 SCC 321]. In para 13 of that judgment, the Apex Court has laid the principles which could be the basis while dealing with the application for restoration and application for condonation of delay. The principles nos.3 and 4 may be read as under:-
(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a Court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for M.Cr.C.No.7232/2015 condonation of delay in re-filing the appeal after rectification of defects.
If facts of the present case are considered in the light of these principles then, certainly the explanation given by the applicant is not satisfactory. Even it does not fall within the category "good" cause.
In the light of judgment passed by Apex Court in case of Balwant Singh (dead) (supra), if the facts of the present case are considered then, it would be apparent that after filing of the leave application, learned counsel for the applicant did not appear before the Court on two consecutive dates, which were fixed in the duration of four months and thereafter, no application for restoration was filed for 18 months and therefore, it was a gross mistake of the litigant that he did not contact his counsel to prosecute the matter and there is no reason shown by the applicant as to why he did not contact his counsel for 22 months. The matter may be restored to its original number, if any good cause is shown by the litigant. In the present case, the applicant could not show any reason as to why he did not contact his counsel for 22 months and what was the reason he could not prosecute his leave application. Hence, M.Cr.C.No.7232/2015 in absence of any good cause, the restoration application filed by the applicant cannot be accepted and consequently, it is hereby dismissed.
(N.K.GUPTA) JUDGE Pushpendra