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Judgment
Petitioner/complainant has assailed order dated 18.12.2024 of the learned trial court, whereby his complaint under Section 138 Negotiable Instruments Act was dismissed in default.
I have heard learned counsel for both sides.
As reflected from record, the subject complaint case was listed before the learned trial court on 09.12.2024, but despite repeated calls, none appeared for the petitioner/complainant, so the matter was adjourned to 18.12.2024. But on that day also, none appeared for petitioner/complainant despite repeated calls till 02:00pm, so learned trial court dismissed the complaint in default. Hence, the present petition.
The defaults in appearance are explained on behalf of petitioner on the ground that on 09.12.2024, Mr. Kanhiya Lal, uncle of learned counsel for petitioner/complainant passed away, so the counsel could not appear and on 18.12.2024, the counsel was held up in 13th day rituals of his uncle. Petitioner has placed on record the cremation receipt and tehrvi intimation card of Mr. Kanhiya Lal.
Learned counsel for respondent opposes the petition on the ground that there are three counsel for petitioner/complainant and there is no explanation about the remaining advocates, who did not appear.
It is explained by learned counsel for petitioner/complainant that the two of the counsel, namely Ms. Neha Garg and Mr. Mahinder Pratap Singh are wife and husband, while the third counsel, Mr. Ankit Aggarwal had already left their chamber.
The order dated 09.12.2024 of the trial court records that the trial matter was pending before the trial court at the stage of final arguments for past 4-5 years. The learned trial court observed in order dated 09.12.2024 that earlier also, none had appeared on behalf of petitioner/complainant. In other words, it is not a matter of only two defaults in appearance on behalf of petitioner/complainant. Moreover, as mentioned above, on 18.12.2024 and 09.12.2024 as well as earlier dates, matter was repeatedly called but none appeared on behalf of petitioner/complainant. Even the petitioner/complainant himself did not appear before the trial court on those dates. Moreover, if the death Mr. Kanhiya Lal occurred on 09.12.2024, the 13th day ritual cannot fall on 18.12.2024. Apparently, the tehrvi intimation card has been fabricated. So, I am not convinced with the explanation for failure to appear on repeated dates.
Despite the aforesaid, keeping in mind that the matter before the trial court was listed for final arguments at the time of dismissal in default, subject to the petitioner/complainant depositing cost of Rs.20,000/- online with www.bharatkeveer.gov.in within one week, the subject complaint case is restored and one last opportunity is granted to petitioner/complainant to address final arguments before the trial court.
Accordingly, the petition stands disposed of, directing both parties to appear before the learned trial court on 07.09.2026 and on that day, learned trial court shall fix fresh date for final arguments as per its convenience.
Copy of this order be sent to the learned trial court.