Court No. - 14
Case :- APPLICATION U/S 482 No. - 25225 of 2007
Applicant :- Virendra Kumar Gautam & Others
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Anil Kumar Singh,Birendra Kumar
Counsel for Opposite Party :- Govt. Advocate,J.S.P. Tyagi
Hon'ble Abhai Kumar,J.
1. Criminal Misc. Delay Condonation Application No.177558 of 2015
2. Criminal Misc. Recall Application No.177561 of 2015
3. Criminal Misc. Modification Application No.365447 of 2016 Learned counsel for the applicants and learned A.G.A. for the State are present, whereas none present on behalf of opposite party no.2 even in revised list.
A notice was sent to the opposite party no.2, which has been returned personally served.
Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
The recall application has been filed for recalling of the order dated 2.5.2013 alongwith delay condonation application as recall application is time barred.
It is submission of learned counsel for the applicants that matter was posted for hearing on 2.5.2013 and on behalf of applicants Mr. Virendra Kumar, Advocate appeared and after hearing the parties, the petition was disposed of by order dated 2.5.2013. It is next contended by learned counsel for the applicants that Mr. Virendra Kumar was not authorized to conduct the case and he was only engaged by the applicants for the proceeding that was to be under taken before the Mediation Centre. Learned counsel for the applicants Mr. Anil Kumar Singh was at Bombay at the relevant time. Mr. Virendra Kumar never gave the information regarding dismissal of petition to the applicants. A certified copy of the order is also obtained by Mr. Virendra Kumar and is being handed over to the opposite party no.2, who in return filed it before the lower court concerned. Only after enquiry by the clerk of learned counsel for the applicants Mr. Anil Kumar Singh, certified copy of the order was received on 7.5.2013 by Mr. Anil Kumar Singh, learned counsel for the applicants and in the circumstances, the delay has been caused that is liable to be condoned.
In the modification application, it has been prayed that time of 30 days that was given to the applicants to appear before the court concerned dated 2.5.2013 may be extended.
Learned A.G.A. has opposed the prayer and submitted that petition was disposed of after hearing the parties and contention of applicants that Mr. Virendra Kumar was not authorized to conduct the case is malafide and afterthought.
This is an admitted fact that Mr. Virendra Kumar was engaged by the applicants and as per own admission, he was authorized to conduct the case on behalf of applicants in the mediation proceeding. The applicants have utterly failed to show that Mr. Virendra Kumar was not authorized to conduct the case of applicants. The name of Mr. Birendra Kumar has also been printed as counsel of applicants alongwith Anil Kumar Singh in the order passed by this Court.
Accordingly, this Court is of the view that contention of learned counsel for the applicants that Mr. Virendra Kumar was not authorized to conduct the case, has no force. If certified copy of the order is being provided by complainant to the court concerned, then same cannot be said to be of any consequence and from the above referred order dated 2.5.2013, it is evident that learned counsel for opposite party no.2 was also present on the date of passing of order and, accordingly, if any copy of order is being produced by the complainant before the court concerned, same cannot be of any avail to the applicants.
The contention of learned counsel for the applicants that had applicants were having knowledge of the disposal of case, then they would have appeared before the court concerned and there was no reason for them not to appear before the court concerned. They were ignorant of the order dated 2.5.2013 and in the circumstances time may be extended that was provided by the order dated 2.5.2013. The argument of learned counsel for the applicants is misconceived. From the delay condonation application, it can be inferred that certified copy of the order was received by learned counsel for the applicants Mr. Anil Kumar Singh in the month of July, 2013, whereas the present delay condonation application as well as recall application has been filed in the month of May, 2015 that is almost after two years. The affidavit of Rama Shankar has been filed in support of delay condonation application as well as recall application, who is also an accused/applicant in the case and as per para 13 of affidavit, he was granted bail by learned A.C.J.M. 1st, Varanasi on 2.10.2013. Rama Shankar is co-applicant and brother of husband of opposite party no.2. From that it can be inferred that at that time the applicants were in the knowledge of the order dated 2.5.2013 of this Court and in spite of fact that they were in the knowledge of the fact they did not come before this Court earlier and now they have come before this Court after almost 2 years. The laches on behalf of applicants cannot be said to be bonafide and they have deliberately avoided to appear before the court concerned.
In view of the above, the delay in filing the recall application has not been explained to the satisfaction of this Court and seeing the laches and deliberate avoidance of the applicants to appear before the court concerned, modification application is also not liable to be allowed.
Accordingly, the delay condonation application, recall application as well as modification application are hereby dismissed.
Order Date :- 26.4.2018 Ajeet