A litigant should not suffer for the fault of their counsel; courts have discretion to allow late filing of written statements upon showing good cause.

1. Vide the impugned order dated 01.06.2022, the petitioner’s right to file written statement was closed and subsequently his application seeking recall of the said order was dismissed vide another impugned order dated 26.07.2023 passed in HMA No. 1607/2021 by the Learned Judge, Family Court, West District, Tis Hazari Court, Delhi. Dissatisfied by this, the petitioner has preferred to invoke the supervisory jurisdiction of this court under Article 227 of the Constitution of India through the present petition.

2. Barring superfluities, facts are that the parties got married on 24.02.2016 as per Sikh rites and rituals in Delhi. Thereafter, acrimony between the couple ensued which led to parties living separately.

Respondent, then filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005, specifics of which are not relevant for the present petition.

3. Subsequently, the respondent in the year 2021, filed the Divorce Petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 which is pending adjudication before the Learned Judge, Family Court.

4. It is the case of the petitioner that after receiving the summons of the Divorce Petition, the petitioner appeared before the learned Judge Family Court on 16.08.2021, wherein the matter was referred to mediation. The court on 03.09.2021, while the mediation was ongoing, had also directed the petitioner to file the written statement in a closed envelop, in case the matter before mediation is received unsettled. However, the mediation failed and the learned Judge Family Court on 27.10.2021 granted additional two weeks’ time to the petitioner to file the written statement.

5. The petitioner could not appear before the learned Judge Family Court on 01.06.2022 and a proxy counsel appeared on his behalf, who did not have knowledge of the matter but had appeared to seek adjournment. However, the learned Judge Family Court on the said date closed the opportunity of the petitioner to file the written statement and listed the matter for evidence of the respondent.

6. Thereafter, the learned Judge, Family Court proceeded ex-parte against the petitioner as he did not appear before the learned Judge Family Court on 01.05.2023. On 22.07.2023, the petitioner moved an application seeking recall of the orders dated 01.06.2022 & 01.05.2023. The application seeking recall of order dated 01.06.2022 was not pressed however, the application for recall of order dated 01.05.2023 was allowed and the ex- parte order was set aside.

7. The petitioner on 24.07.2023, filed another application seeking recall of order dated 22.07.2023 and 01.06.2023. Vide the impugned order dated 26.07.2023, the application was dismissed thereby foreclosing the right of the petitioner to file written statement. Hence, the present petition. Submissions of the Parties:

8. Mr. Siddhant Sharma, learned counsel for the petitioner submitted that the learned Judge, Family Court erred inasmuch as failing to appreciate that due to the mistake and negligence of the erstwhile counsel of the petitioner, the opportunity to file written statement was closed and the petitioner was not even informed about the same. The petitioner was misguided and had no knowledge of the same as he was suffering from medical issues.

9. Learned counsel submitted that the erstwhile counsel of the petitioner had assured that the matter was being dealt with diligently, however which was not the case and to the utter shock of the petitioner, the opportunity to file written statement being closed came to his knowledge subsequently.

10. Reliance was placed on the judgements in the following, wherein it was held that a litigant should not suffer for the fault of his counsel:

 Rafiq and Anr. Vs Munshilal and Anr AIR 1981 SC 140,  Smt. Lachi and Ors. Vs Director of Land records and Ors. AIR 1984 SC 41,  Tahil Ram Issardas Sadarangani and Ors. Vs Ramchandra Issardas Sadarangani and Anr. AIR 1993 SC 1182 and;

 Malkiat Singh and Anr. Vs