Research › Search › Judgment

Bombay High Court · body

2015 DIGILAW 1445 (BOM)

Rekha @ Kanchan v. State of Maharashtra

2015-07-02

A.B.CHAUDHARI

body2015
JUDGMENT : A.B. Chaudhari, J. The petitioner-wife has challenged the judgment and order dated 21.02.2014 passed by District Judge, Yavatmal in Criminal Appeal No. 26/2011 by which the learned Sessions Judge set aside the judgment and order dated 16.02.2009 passed in Misc. Criminal Case No. 199/2007 passed in favour of the petitioner and remanded the proceedings to the trial Court for fresh trial from the stage of filing of the written statement. 2. Assailing the impugned judgment and order of the appellate Court, Mr. Bhuibhar, learned counsel for the petitioner wife, vehemently argued that the judgment and order dated 16.02.2009 was passed by the trial Judge, after following the complete procedure required for conducting the trial. Merely because the respondent no. 2 chose to remain absent before the trial court and allowed the ex parte decree to be passed against him to pay compensation in the sum of Rs.5,00,000/- as against the demand of Rs. 15,00,000/- of the petitioner-wife, the appellate Court was not justified in remanding the matter in the facts and circumstances of the case. He submitted that the only reason given by the lower appellate Court was that the respondent-husband did not have the notice of the proceedings before the trial Judge because his Advocate, Mr. Bhende had withdrawn his Vakalatnama, though by sending notice of withdrawal by registered post acknowledgement due on the last known address when, in fact, the respondent-husband did not reside on that address. The learned lower appellate Court failed to see that it was the duty of the respondent-husband to inform his counsel about his changed correct address if he had left the earlier address and, therefore, there was no occasion to give premium to the omission on the part of respondent-husband in not defending the proceedings. Learned counsel for the petitioner then submitted that the crucial aspect which goes to the root of the matter, has been ignored by the learned lower appellate Court. He submitted that the judgment and order of the trial Court was passed on 16.02.2009 and that was an ex parte. The respondent no. 2- husband did not appear, did not file the reply and did not contest the proceedings, though duly selected. The trial Court passed ex parte order directing him to pay compensation of Rs.5,00,000/- as against the demand of Rs. 15,00,000/- made by the petitioner. The respondent no. 2- husband did not appear, did not file the reply and did not contest the proceedings, though duly selected. The trial Court passed ex parte order directing him to pay compensation of Rs.5,00,000/- as against the demand of Rs. 15,00,000/- made by the petitioner. It was alright up to this stage but thereafter the respondent-husband approached the petitioner-wife on 22.05.2009 entered into the settlement in which it was decided that instead of Rs. 5,00,000/- the respondent would pay Rs. 2,00,000/- to the petitioner towards full and final settlement flowing from said judgment dated 26.06.2009. Not only that, as per the settlement dated 22.05.2009, their marriage was again solemnised i.e. petitioner- wife and respondent-husband in the Marriage Registration Office at Yavatmal on 26.06.2009. After the marriage was solemnised on 26.06.2009, the settlement was thus worked out. Respondent no. 2 filed Criminal Appeal No. 26/2011 on 19.07.2011 i.e. two years after settlement which took place on 22.05.2009 and remarriage which took place on 26.06.2009 and then prayed for condonation of delay in filing the appeal and so on so forth. Thus the reasons given by the lower appellate Court are totally wrong since the respondent himself was a party to the settlement and could not have taken somersault. He, therefore, prayed for reversal of the judgment of the lower appellate court. 3. Per contra, Mr. Bhalerao, learned counsel for the respondent, supported the impugned judgment and order and submitted that the notice of the learned Advocate for withdrawal of Vakalatnama was not complete and as such the respondent husband did not know about the progress of the proceedings or that his advocate did not appear and withdrew the Vakalatnama for him because he had already left the house on which it was stated that the registered notice for withdrawal of Vakalatnama was sent. The learned counsel, therefore, contended that there was denial of opportunity to respondent-husband in deciding the case which resulted into ex parte judgment. He relied on judgment in Govinda Bhagoji Kamable & ors v. Sadu Bapu Kamable & ors., 2005 (1) Mh.L.J. 651 to show that an advocate cannot withdraw Vakalatnama without obtaining leave of the Court with reference to Order 3, Rule 4 of the Code of Civil Procedure. He, therefore, prayed for dismissal of the writ petition. CONSIDERATION: 4. He relied on judgment in Govinda Bhagoji Kamable & ors v. Sadu Bapu Kamable & ors., 2005 (1) Mh.L.J. 651 to show that an advocate cannot withdraw Vakalatnama without obtaining leave of the Court with reference to Order 3, Rule 4 of the Code of Civil Procedure. He, therefore, prayed for dismissal of the writ petition. CONSIDERATION: 4. I have perused the impugned judgment and order and upon having conspectus of the facts placed before me, I find that the admitted facts are; judgment of the trial Court granting compensation in the sum of Rs. 5,00,000/- was passed on 16.02.2009 as against the demand for Rs. 15,00,000/-; respondent-husband had not even filed written statement though he had engaged advocate nor he had appeared thereafter to defend the case before the trial Court. His Advocate Mr. Bhende issued him registered notice on his last known address and it was not served on him because he had changed his address. Therefore, responsibility was on the respondent-husband to inform his changed address to his advocate. Hence that may not be a good ground for setting aside the judgment. But then, I do not propose to rely on these facts for deciding the issue since the petitioner-wife has invoked writ jurisdiction of this Court in which the error of jurisdiction could only be dealt with. 5. The following facts have not been considered by the lower appellate Court. Within three months of ex parte judgment on 16.02.2009 by the trial court, the respondent-husband approached the wife and asked for settlement and accordingly on 22.05.2009 both of them entered in to settlement in writing i.e. Hamipatra dated 22.05.2009 in the presence of some persons for reducing the amount of Rs. 5,00,000/- to Rs. 2,00,000/- towards full and final settlement flowing from judgment dated 16.02.2009. This clearly shows that the respondent-husband became fully aware about the judgment dated 16.02.2009 and did not have any objection for accepting the said judgment and that is why instead of Rs. 5,00,000/- he agreed to Rs. 2,00,000/- only. Not only that, he went ahead and performed marriage with the petitioner-wife by registration on 26.06.2009 i.e. after one month of the settlement. 5,00,000/- he agreed to Rs. 2,00,000/- only. Not only that, he went ahead and performed marriage with the petitioner-wife by registration on 26.06.2009 i.e. after one month of the settlement. After performing the marriage on 26.06.2009, surprisingly he filed Criminal Appeal on 19.07.2011 i.e. after almost two years in which lower appellate Court has passed impugned judgment which set aside the ex parte order of the trial Court dated 16.02.2009 on the ground that he was not aware about the proceedings before the trial Judge as the lawyer did not inform him, as per the settled procedure, for withdrawal of the Vakalatnama. Therefore, retrial was required to be held by allowing him to file written statement. 6. This Court is surprised to see the casual manner in which the learned lower appellate Court dealt with the matter in the wake of the above facts. At any rate, the lower appellate Court should have found that the respondent-husband was estopped by conduct in taking recourse to the filing of appeal and seeking condonation of delay on such grounds and then asking for remand for contesting the trial. Apart from the doctrine of estoppel by conduct, it clearly appears that the respondent-husband acted mala fide as is seen from the facts of the present case and his conduct. He did not come to the court with clean hands, therefore, the lower appellate Court committed serious error in extending relief to him. In the wake of above facts, I find that the lower appellate Court clearly committed error of jurisdiction and miscarriage of justice. The judgment of the lower appellate court must be held to be perverse and in excess of jurisdiction. 7. In the result, following order is passed. ORDER (i) Criminal Writ Petition No. 406/2014 is allowed. (ii) Rule made absolute in terms of prayer clause (i).