MRS. REKHA @ KANCHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitionerwife 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 petitionerwife, 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 petitionerwife, the appellateCourt 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 respondenthusband 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 Bhende had withdrawn his Vakalatnama, though by sending notice of withdrawal by registered post acknowledgement due on the last known address when, in fact, the respondenthusband did not reside on that address. The learned lower appellate Court failed to see that it was the duty of the respondenthusband 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 respondenthusband 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. It was alright up to this stage but thereafter the respondenthusband approached the petitionerwife 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 solemnized i.e. petitioner wife and respondenthusband in the Marriage Registration Office at Yavatmal on 26.06.2009. After the marriage was solemnized 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 respondenthusband 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 respondenthusband in deciding the case which resulted into ex parte judgment. He relied on judgment in Govinda Bhagoji Kamable & ors..vs.Sadu Bapu Kamable & ors, 2005 1 MhLJ 651 to show that an advocate cannot withdraw Vakalatnama without obtaining leave of the Court with reference to Order III Rule 4 of the Code of Civil Procedure. He, therefore, prayed for dismissal of the writ petition. CONSIDERATION: