AZAM KHAN Vs. HITENDER WALIA

JUDGEMENT

(1.) This petition has been preferred against the order dated 20.9.2017 passed by learned Judicial Magistrate 1st Class, Nahan, District Sirmour, H.P. in case No. 15/2 of 2016, titled as Azam Khan Vs. Hitender Walia and another, whereby private complaint filed by petitioner was dismissed in default for non prosecution for want of his representation either in person or through counsel, on the date fixed for recording pre-charge evidence of the complainant.

(2.) Present petition has been filed on 3rd July, 2019 after a period of 1 year and 10 months. It is claimed on behalf of petitioner that his private complaint was fixed before learned Judicial Magistrate on 8.8.2017 and on that date it was adjourned for recording pre-charge evidence of the complainant on 20.9.2017, however, learned counsel representing him had failed to communicate the said date to him, which caused his absence on that date i.e. 20.9.2017and further that neither his counsel had appeared on that date nor had informed dismissal of his complaint on that day, in default for non prosecution. It is further case of Whether the reporters of the local papers may be allowed to see the Judgment? Yes the petitioner that this fact came in his knowledge when he received the summon in a Civil Suit filed by respondent No. 2 Vijay Walia against him for damages on account of malicious prosecution for filing private complaint by the petitioner against him and lastly it is claim of the petitioner that absence before learned Judicial Magistrate was neither deliberate nor intentional, but for the aforesaid reasons and therefore, restoration of private complaint has been prayed for, after setting aside the impugned order.

(3.) Petition has been opposed by the respondents on the ground that even if claims put forth by the petitioner in the petition are admitted to be true, even then there is unexplained inordinate delay in filing the present petition, as copy of impugned order was received by the petitioner on 3.11.2018 and thus at that time, he had gained knowledge about dismissal of his complaint in default for non prosecution and also that claim of the petitioner that on service of summons, he had gathered the knowledge about dismissal of complaint is false, which is evident from the copy of summon placed on record by petitioner himself along with rejoinder, wherein it is clearly mentioned that petitioner Azam Khan had refused to receive the summons on 25.9.2018. It is also canvassed on behalf of respondents that knowledge of dismissal of complaint can also be gathered from the written statement filed by petitioner in the suit preferred by respondent No.2. The said written statement was filed on 4.1.2019 (wrongly mentioned as 4.1.2018), copy whereof has been placed on record along with reply. Further that in this written statement also, instead of taking plea, now taken in the petition, petitioner had contended that complaint was not decided on merits and therefore, suit for malicious prosecution was not maintainable.