Final Order 2

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. CHANDER JIT SINGH, ADDL.
SESSIONS JUDGE-03 (NEW DELHI DISTRICT) PATIALA
HOUSE COURTS : NEW DELHI
Crl. Revision Petition No. 92/2024
Sh. Pradeep Sharma
S/o Sh. Kailash Chand
R/o K-394, Kaushlya Bhawan
Gali No. 8, Mahipalpur Extension
New Delhi-110 037. … Petitioner
Versus
Sh. Dev Rawat
S/o Late Ganga Singh Rawat
R/o H.No. 623, Sector 22B
Gurgaon, Haryana.
Also at :
H.No. K/6D-1/5A
Mahipalpur Extension
New Delhi-110 037. … Respondent
Date of Institution : 05.02.2024
Date of Arguments : 07.11.2024
Date of Judgement : 27.11.2024
Appearance :
Present : Sh. Amit Chaubey, Ld. Counsel for petitioner.
Respondent in person with Sh. R.B. Sharma, Ld.
Counsel.
J U D G M E N T
1. This order shall dispose of a criminal revision
petition filed on behalf of complainant/revisionist Pradeep
Sharma against the impugned order dated 29.11.2022 passed by
Ld. Court of Special Metropolitan Magistrate.
FACTUAL MATRIX:-
1.1. In brief, facts of this case are that revisionist has
filed complaint against the respondent for offence committed by
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the accused/respondent u/s 138 NI Act. That matter is pending
before Ld. Trial court and at the stage of cross examination of
CW-2. That on 11.10.2022, when revisionist and his witness
came to court, he came to know that the matter has been
transferred to court of Special Magistrate at Rouse Avenue Court
but due to old age of his father, he could not reach at Rouse
Avenue Court and instructed counsel to inform about the date.
That counsel could not inform the revisionist about the next date
of hearing and later informed that he (erstwhile counsel) has left
practice as well as advised revisionist to approach the other
counsel for his case.
1.2 That in the mean time, revisionist’s father was
severely ill and has to go under hospitalization. That therefore,
complainant could not engage any counsel and also did not have
any idea about the case. That Ld. Court of Special Magistrate,
New Delhi District, Patiala House Courts, dismissed the
complaint vide impugned order dated 29.11.2022 and revisionist
did not have any idea about the same.
1.3 That after receiving the certified copies of the
complaint, present counsel for complainant/revisionist had
moved an application for restoration but till that time, the court
of Ld. Special Metropolitan Magistrate was abolished. That Ld.
Counsel moved the application before the court of Chief
Metropolitan Magistrate, who transferred the application before
Ms. Anam Rais Khan, Ld. Metropolitan Magistrate. That when
revisionist and his counsel appeared before Ld. Metropolitan
Magistrate, Ld. Court expressed her inability to restore the
complaint and directed to withdraw the same. That Ld. Counsel
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asked for time to assist the case on the legal prospects. That Ld.
Counsel for the revisionist withdrew the said application on
09.10.2022 and filed the present revision petition.
GROUNDS OF REVISION
2. Impugned order dated 29.11.2022 is assailed on the
ground that revisionist has been diligent with the matter and also
brought his father for recording of evidence. That revisionist
could not appear as he was informed on the date about the
transfer of the matter on the date and he could not accompany his
old aged father due to ill health. That Ld. Special Metropolitan
Magistrate may have issued the notice to the complainant for
appearance but has passed the order in hurried manner. That
there are material irregularity and illegality in the order of Ld.
Magistrate in dismissing the complaint which is against the facts
and law. That Ld. Magistrate has mechanically and hastily
passed the impugned order which is prejudiced the rights and
interests of the petitioner/revisionist as Ld. Magistrate held that
present dispute is purely of civil nature. Hence, the present
petition.
SUBMISSIONS :
3. It is argued on behalf of revisionist that present
petition was dismissed without giving proper opportunity to
revisionist. It is submitted that after transfer of matter to Special
Court constituted for trial of offences under Negotiable
Instrument Act as revisionist was not aware of such transfer and
therefore, could not appear leading to dismissal of his complaint.
It is submitted that subsequently, he has shifted out of Delhi and
therefore, was not able to take up the case. It is submitted that
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his Counsel did not inform him about the the proceedings in the
matter and he got aware about the proceedings only after
engaging a new Counsel. It is submitted that this revision
petition be allowed and matter be decided on merits. It is
contended that revisionist was diligent with his matter. It is
submitted that Ld. Special Magistrate should have issued the
notice to revisionist. It is submitted that the order regarding
dismissal of complaint is wrong in law having being passed
mechanically. It is submitted that the present revision petition be
allowed.
4. On behalf of respondent, it is argued that revisionist
was never serious about the case and did not pursue his case
properly. That revisionist has not placed on record any document
to support his contention. It is also contended that in absence of
any material being placed on record, present revision petition
should be dismissed.
Discussion
5. Having heard the contentions of both the parties and
perused the record, short question before the court is whether
revisionist was diligent in pursuing his matter or should have
been notified about transfer of matter to another court and
deserves a chance to pursue the matter on merits.
5.1 Impugned order dated 29.11.2022 is challenged on
the ground that there is material irregularity in order dated
29.11.2022, by which complaint of revisionist was dismissed-in-
default. It is argued that no notice was issued to complainant and
the order was passed in a hurried maner. Perusal of record shows
that on 06.09.2022, complainant had appeared in person but did
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not appear on the next date of hearing fixed for 11.10.2022. On
that date, Ld. Presiding Officer of Special Court, NI Act, had
postponed the matter for 29.11.2022 for appearance of
complainant. It is note worthy to mention that on both dates,
Counsel for accused was present. On 29.11.2022, the matter was
awaited till 2:40pm and due to non-appearance of complainant,
matter was dismissed for non-prosecution.
5.2 Along with the revision, an application seeking
condonation of delay in filing revision petition has also been
submitted. It is stated in the revision petition that an application
seeking restoration of the complaint was moved before the Ld.
Court concerned and on inability shown by Ld. Court concerned
to restore the complaint case in question, Ld. Counsel withdrew
the same. Even after withdrawal of application seeking
restoration, this revision was filed after about three months since
then.
6. Complainant/revisionist has stated that he could not
pursue his case as he was not briefed by his Counsel regarding
dates of hearing, as his Counsel had left the practice. Though, it
is not stated in so many words by revisionist but necessary
implication of contentions in revision petition is that due to lapse
on the part of earlier counsel, revisionist was not aware or
apprised about date of hearing in his case.
6.1 In the revision petition, it is stated by the revisionist
that he along with his witness had come to court on 11.10.2022
and had learnt that matter was transferred to the court of Ld.
Special Magistrate at Rouse Avenue Court, but, due to the reason
that revisionist was accompanied by his old age father who had
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to depose as CW-2, he could not go to Rouse Avenue Court and
asked his Counsel to inform the next date of hearing. That
Counsel could not inform the revisionist about the next date of
hearing. Thus, he was not able to appear on next date of hearing
despite pursuing with his counsel and later, his Counsel informed
that he left practice as well as advised revisionist to approach
other Counsel.
6.2 One of the major contention on behalf of revisionist
is that no notice was issued by Ld. Special Court and this led to
cause prejudice to complainant/revisionist. The purpose of
notice being issued to a litigant is to inform about the change in
court which will conduct trial. However, once there is an
admission in writing that revisionist was aware about change of
court along with details where that court shall sit, the fact that
notice was not issued is of no consequence.
6.3 It is also contended that due to the reason of father
of revisionist being severally ill and under hospitalization,
revisionist could not engage any other Counsel nor had any idea
about the case. Revisionist had, thus, cited the reasons of his
Counsel not informing the date as a ground for his non-
appearance. It is an admitted position that revisionist was aware
of transfer of matter to the court of Ld. Court of Special
Magistrate at Rouse Avennue Courts. It is a matter of common
knowledge that post Covid-19, hybrid hearings are going on in
the courts at Delhi. Thus, if for any reason, revisionist was not
able to appear physically, he could have joined the proceedings
through video-conferencing but, there is absolute silence on this
aspect. Further, as per the complaint filed by the
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complainant/revisionist, he was working at Airport area and was
engaged in business.
6.4 It is also contended that revisionist has some
business in Goa as he stated that he shifted to Goa for business
purposes. Therefore, there is every possibility of revisionist
being conversant with use of internet. All the information
regarding the cases are being up-loaded by the District Courts of
Delhi and it can be accessed through internet. Therefore, even if
the Counsel had not informed revisionist date of hearing, there is
no contention that he had made any effort regarding finding out
the date of hearing. This aspect is important variable in
considering whether complainant/revisionist exercised due
diligence in pursuing his matter. Contention has been raised
about ill health of his old age father, but, no document has been
placed to substantiate the said contention.
7. Further, in respect of contention regarding
negligence of the Counsel, this court is guided by the recent
judgment of Division Bench of Hon’ble Supreme Court of India
in the case Rajneesh Kumar & Anr. v Ved Prakash in S.L.P.(CI-
VIL) Nos.935-936 of 2021, wherein, inter-alia, Hon’ble Supreme
Court of India has held 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
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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 courtmay, 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 a 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
1981SC 1400 must not be understood as an absolute proposition.
As we have mentioned hereinabove, this was a non-going suit
posted for final hearing after a lapse of seven years of its
institution. It was not a second appeal filed by a vilager residing
away from the city, where the court is located. The defendant is
also not arustic ignorant vilager but a private limited company
with its head office at Calcutta itself and managed by educated
business men who know where the 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. Maybe,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
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accepted and ought not to have been accepted.”
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, (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 in active 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 sub-veniunt (the laws give help to those who
are watchful and not to those who sleep). Therefore, the object
of the statute 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.”
8. In view of this position of law settled by abovesaid
judgment, it is the duty of the litigant to remain vigilant and
cannot take advantage on the ground of alleged negligence of his
Counsel. Hence, as a sequel to above discussion, present
revision petition is dismissed.
9. Copy of the order be sent to trial court concerned.
TCR be sent back to court concerned/Record Room as the case
may be.
10. File be consigned to record room.
Announced in the open court (Chander Jit Singh)
on 27.11.2024 ASJ-03/NDD/PHC/New Delhi
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