Amar Singh vs Parkash Chand And Others

Ajay Mohan Goel, J

By way of this petition, the petitioner has prayed for the following relief: “That keeping in view the aforesaid circumstances, it is most

respectfully prayed that petition may kindly be allowed and the order dated 18.03.2021, passed by learned Trial Court in private complaint No.

3011/2020 be ordered to be set aside and the private complaint may kindly be ordered to be restored to its original number or any other order may be

passed, which this Hon’ble Court deems fit and proper in the facts and circumstances of the case.â€​

Though certain private persons have been arrayed as respondents in the petition, but learned counsel for the petitioner informs the Court that when

the matter was listed before the Hon’ble Co¬ordinate Bench yesterday, the case was ordered to be listed for today, to enable him to have

instructions from the petitioner as to whether the private respondents have been served before the learned Court below or not. Learned counsel for

the petitioner informs the Court that no notice had yet been issued to the private respondents as on date when the impugned order was passed.

Heard learned counsel for the petitioner.

Brief facts necessary for the adjudication of present petition are that a Complaint under Sections 499, 500 and 120(B) of the Indian Penal Code was

filed by the complainant before the Court of learned Additional Chief Judicial Magistrate, Palampur, H.P., which was registered as a Private

Complaint bearing No. 20/2020.

According to learned counsel for the petitioner, after filing of the case, the same was not listed before the Court for some time on account of

COVID¬19 pandemic and in the interregnum, learned counsel through whom the complaint was filed, erroneously lost track of the case. In these

circumstances, when the matter was listed before learned Court below on 18.03.2021, after calling the case on more than one occasions, the following

order was passed:

“Called after lunch

18.03.2021 Present: None for complainant. Complaint repeatedly called

after lunch but none appeared for complainant. It seems that the complainant is not interested to pursue the present complaint. It is 03.40 P.M. Hence,

the present complaint is dismissed in default. After needful, be consigned to records.â€​

As per learned counsel for the petitioner, as nonappearance on the part of the petitioner before the learned Court below was bonafide and not

intentional, therefore, in these circumstances, order dated 18.03.2021 be recalled and the learned Court below be directed to restore the complaint to

its original number and decide the same on merit.

Having heard learned counsel for the parties and after perusing the impugned order, this Court is of the view that per se there is no perversity with

the order passed by the learned Court below on 18.03.2021, as learned Court below had no option, but to dismiss the case in default, because none

was pursuing the same before it. However, taking into consideration the fact that previously the functioning of the Courts was indeed staggered on

account of COVID¬19 pandemic, in the considered view of the Court, it will be in the interest of justice in case order vide which the case was

dismissed in default by the learned Court below is set aside and the learned Court is called upon to restore the case to its original number and decide

the same, in accordance with. This is, more so, for the reason that it appears that none appearance of the petitioner or the lawyer before the learned

Court below was bonafide and not intentional, which is further apparent from the fact that after passing of order dated 18.03.2021, the petitioner has

immediately approached this Court for recalling the said order.

In these circumstances, this petition is allowed, without notice to the private respondents, as no notice was issued to them at the time when the

impugned order was passed by the learned Court below. Impugned order dated 18.03.2021, vide which, the Complaint was dismissed in default is

quashed and set aside, with further direction to the learned Court below to restore the case to its original number and decide the same, in accordance

with law. Complainant to bring the order passed by this Court into the notice of the learned Court below by filing an appropriate application.

Miscellaneous applications, if any, also stand disposed of