Allowed

Tanuja Ajit Thatte v. Ajit Ramchandra Thatte and Ors.

Bombay HC24 Feb 2012APPLN/1088/2010

Case brief

AI extract

What is this about?

The Single Judge allowed the applicant's criminal application challenging the dismissal of a miscellaneous application for condonation of delay. The High Court held the trial court was wrong to dismiss by default when the notice was merely returned unserved, directing the lower court to hear the matter on merits. (quit)

What did the court decide?

The impugned order was quashed; the Additional Sessions Judge was directed to hear the miscellaneous application on merits within four weeks.

Tanuja Ajit Thatte Vs Ajit Ramchandra Thatte… — Civil Procedure and Limitation | Bombay HC (2012)

SSK/926

APPLN 1088.10

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 1088 OF 2010

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Smt. Tanuma Ajit Thatte ....Applicant Versus Shri Ajit Ramchanddra Thatte & ors. ...Respondents

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Mr. Prakash Naik, advocate for the applicant. Mr. Rajiv K. Kakkara, advocate for respondent Nos. 1 to 3.

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CORAM : RANJIT MORE, J.

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DATED : 24^th FEBRUARY, 2012.

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P.C.:

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Heard learned counsel for the respective parties.

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The applicant by this application is challenging the order dated 31^st October, 2009, whereby learned Additional Sessions Judge at Kalyan dismissed the Miscellaneous Application No.44 of 2002 in default.

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The applicant is the complainant and respondent Nos. 1, 2 & 3 are the original accused. The applicant got married with respondent No.1 in the year 1993. It is the case of the applicant that respondents, however, subjected her to cruelty. On 3^rd December, 1998, the applicant lodged complaint under Section 315 of the IPC against the respondents contending

SSK/926

APPLN 1088.10

that on 20^th January, 1994, when she was admitted in the hospital for delivery, the respondents/accused in connivance with each other had a common intention to cause the death of the child which was about to be delivered by her. At this stage, it is worth to mention that ultimately the child was saved.

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The private respondents preferred an application for discharge before learned Magistrate. Learned JMFC by his order dated 14^th February, 2002 was pleased to discharge the respondents. The applicant, thereafter, filed revision application challenging the discharge order in the Sessions Court at Kalyan. Since there was delay, she filed Miscellaneous Application No. 44 of 2002 for condonation of 68 days delay. This application as stated above was dismissed by learned Sessions Judge, and therefore, the present criminal application. Learned Additional Sessions Judge in the impugned order has made an observation that the applicant is appearing in person since long time and that she was absent. It was further observed that the Court notice was also issued to the applicant, however, it was returned unserved. Learned Additional Sessions Judge, thereafter recorded the conclusion that the applicant is not interested in the matter, and accordingly, dismissed the application in default.

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SSK/926 3

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APPLN 1088.10

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Having heard learned counsel for the respective parties, in my view, the impugned order cannot be sustained. Learned Additional Sessions Judge himself observed that the applicant was appearing in person, and therefore, issued Court notice. This Court notice was returned unserved. In my view, learned Additional Sessions Judge, having issued Court notice ought to have waited till the notice was actually served on the applicant. As stated above, the notice was returned unserved, and therefore, the applicant cannot said to be aware of the issuance of the Court notice. The conclusion of learned Sessions Judge that the applicant was not interested in the matter is not supported by reasons or borne out by any other facts. In the above circumstances, in my view, interest of justice will be subserved, if learned Additional Sessions Judge is directed to hear the applicant’s application for condonation of 68 days delay on its own merits.

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6. The criminal application is, accordingly, disposed of by passing the following order :

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The impugned order is quashed and set-aside.

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Learned Additional Sessions Judge at Kalyan is directed to

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hear and dispose of Miscellaneous Application No.44 of 2002 on merits as expeditiously as possible and in any case,

SSK/926

APPLN 1088.10

within a period of four weeks from the date of receipt of this

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order.

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The applicant/original complainant is directed to appear either in person or through advocate on each and every date of hearing before learned Additional Sessions Judge,

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Kalyan.

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(RANJIT MORE, J.)

Tanuja Ajit Thatte v. Ajit Ramchandra Thatte and Ors.

Case brief

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Tanuja Ajit Thatte v. Ajit Ramchandra Thatte and Ors.

Case brief

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