Rajanikanta Mahalik vs Debashree Mohanty Vs

G. Satapathy, J.

This revision is directed the impugned order dated 26.06.2023 passed by the learned Judge, Family Court, Cuttack in Criminal Proceeding No.108 of 2022 refusing to set aside the exparte judgment dated 26.04.2022 passed in CRP No.58 of 2020 in an application U/S.126(2) of CrPC.

The relevant facts for the disposal of this revision  are  that  the  OP-wife  had  instituted  a proceeding U/S.125 of CrPC in Criminal Proceeding No.58 of 2020 against the petitioner-husband and such proceeding was disposed of exparte by the learned Judge, Family Court, Cuttack on 26.04.2022, since on 28.02.2022, the petitioner did not appear in the said proceeding and he was set exparte. However, the petitioner-husband filed a petition U/S.126(2) of CrPC on 11.07.2022 to set aside the exparte order passed in Criminal Proceeding No.58 of 2020, but the learned trial Court after taking evidence dismissed the said proceeding U/S.126(2) of CrPC on the ground that the petitioner could not establish the good cause for his non-appearance on the date fixed.

In the course of hearing, Mr. Pratap Kumar Nayak, learned counsel appearing along with Mr. Durgadatta Mohapatra, learned counsel for the petitioner submits that although there was a communication gap between the petitioner and his counsel, but the learned trial Court has erroneously appreciated the facts and evidence and refused to set aside the exparte order passed in Criminal Proceeding No.58 of 2020, but the non-appearance of the petitioner-husband was neither intentional nor deliberate, however, due to a reason beyond control of the petitioner. Accordingly, Mr. Nayak prays to set aside the impugned order and restore back the proceeding in CRP No.58 of 2020 for fresh disposal in accordance with law.

3.1. In reply, Mr. Pravat Kumar Mohanty, learned counsel for the OP-wife submits that not only the petitioner-husband had neglected to attend the Court, but also the date of hearing of the case was within his knowledge, however, subsequently when exparte order was passed, he is taking plea of communication gap between the petitioner-husband and his counsel to harass the OP-wife. Accordingly, Mr. Mohanty prays to dismiss the present revision.

After having considered the rival submissions upon perusal of record, since the plea of the petitioner is for communication gap between him and his advocate, this Court right now perused the impugned order to see as to whether any illegality or impropriety has been committed by the learned trial Court in passing of the impugned order. It is the plea of the petitioner-husband that due to communication gap between him and his advocate, he could not appear in the case, but fact remains that the petitioner-husband himself has admitted in cross-examination that he had appeared in CRP No.58 of 2020 on 28.08.2020 through his advocate, but the judgment in CRP No.58 of 2020 was passed on 26.04.2022 and, thereby, there is a gap of around one year and ten months between the appearance of the petitioner in the case concerned and the final judgment passed in this case. It is not expected for a client to remain idle for such a long period by taking the plea of communication gap between him and his advocate. Had there been communication gap between the petitioner and his counsel, he could have verified the same by engaging another counsel.

Furthermore, it also appears from the impugned order that the pleadings of the petitioner disclose that he could not know about the date of hearing of the case due to communication gap as his advocate did not receive his phone calls. True it is that the advocate might not have received the phone calls of the petitioner, but it is not expected from him to remain idle for such a long period of one year and ten months on the ground of communication gap. Further, no specific date on which the petitioner’s advocate did not pick up the phone has been stated in the petition.

For clarity, this Court wish to extract the plea on which the petitioner seeks for setting aside the exparte order, which has been stated in paragraph-6 of the petition for setting aside the exparte order, which reads as under:-

“6. The non-appearance of the petitioner on 28.02.2022 is neither deliberate nor intentional but due to communication gap with the conducting counsel, he could not be able to know the progress and status of the case and it was not possible on his part to appear in-person before this Hon’ble Court on the date fixed i.e., 28.02.2022 because, the Lalbag Police was trying to arrest the petitioner in Lalbag P.S. Case No.07/2022 corresponding to G.R. Case No.53/2022 pending in the court of Learned S.D.J.M. (Sadar), Cuttack for awaiting submission of Final Form.”

On the other hand, the deposition of the petitioner as produced by the OP reveals that the petitioner-husband has admitted that he has appeared once in Criminal Appeal No.25 of 2021 during the above period and for the purpose of appearing before the Court, he has never taken leave during the aforesaid period. Further, a party cannot blame his lawyer for his own fault without producing any valid materials to establish the negligence of his counsel. Had there been any negligence on the part of the conducting counsel, the petitioner could have engaged another counsel or appeared before the Court to permit him to engage another counsel. It is for the party to remain vigilant and take stock of the proceeding, to which he is a party.

In the aforesaid facts and circumstance, especially when the petitioner could not establish his bona fide or sufficient cause as enumerated in Section 126(2) of CrPC to show that he was prevented by sufficient cause to appear before the Court on the date on which exparte order was passed in this case, this Court does not consider it proper to set aside the impugned order in this case.

In the result, the revision being unmerited stands dismissed on contest, but in the circumstances, there is no order as to costs.

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