A party should not be penalized for the bonafide and unavoidable absence of their counsel, such as a medical emergency; in such cases, a dismissal in default may be set aside to ensure the matter is decided on merits.

Order

1. By way of filing the instant petition, a challenge has been led to the impugned order dated 06.03.2017, passed by the Additional Chief Metropolitan Magistrate No.22, Jaipur Metropolitan, by which the complaint submitted by the complainant-petitioner under Section 138 of the Negotiable Instrument Act , has been dismissed in default.

2. Learned counsel further submits that counsel appearing on behalf of the complainant-petitioner before the Trial Court was suffering from heart disease. On the fateful day, he suffered a heart attack and therefore, he could not appear before the Trial Court. Hence, under these circumstances, the complaint filed by the complainant-petitioner has been dismissed in default by the Trial Court vide the impugned order.

3. Counsel further submits that the reason for absence of the counsel appearing on behalf of the complainant-petitioner before the Trial Court was bonafide on account of the fact that he suffered a heart attack. Hence, under these circumstances, the complainant-petitioner cannot be allowed to suffer on account of the unavoidable circumstances suffered by his counsel. Hence, under these circumstances, interference of this Court is warranted.

4. None has put appearance on behalf of the respondent, in spite of service.

5. Heard and considered the submissions made at the Bar and perused the material available on record.

6. Considering the arguments put forward by the counsel for the complainant-petitioner and looking to the fact that on the fateful day when the complaint was listed before the Trial Court on 06.03.2017, the counsel appearing on behalf of the complainant-petitioner before the Trial Court suffered a heart attack, hence, he could not appear before the Trial Court and this fact could not be brought into the notice to the complainant-petitioner and the complaint was dismissed in default by the Trial Court vide the impugned order. Absence of the counsel for the complainant-petitioner was bonafide and the complainant-petitioner cannot be allowed to suffer on account of the unavoidable circumstances faced by his counsel.

7. In view of the reasons stated above, the impugned order dated 06.03.2017 is liable to be and is hereby quashed and set aside. The matter is remitted back to the Trial Court for disposal of the complaint in accordance with law.

8. Looking to the fact that the matter pertains to year 2013, it is expected form the Trial Court to take all possible endeavors to decide the complaint, expeditiously, as early as possible.