Communication gap between party and advocate held to be sufficient reason for non-appearance; Court to decide case on merits rather than going into technicalities: Bombay HC

Bombay High Court: A Single Judge Bench comprising of A.M. Badar, J. allowed an appeal filed against the order of the trial court whereby the appellant’s complaint against the respondent-accused was dismissed for want of prosecution.

The appellant had lodged a complaint against the respondent alleging the commission of offences punishable under Sections 323, 337, 341, 352, 504 and 506 IPC. The trial court recorded the verification statement of the appellant. Similar statement of one eye-witness was also recorded. Subsequently, the trial court issued process for offences punishable under Sections 323, 504 and 506 IPC against the respondent. When the matter was posted for recording of appellant’s evidence, he did not appear for three consecutive dates. The respondent moved an application under Section 256 CrPC which was allowed by the trial court and therefore the complaint was dismissed for want of prosecution. This order of the trial court was impugned in the instant appeal.

The High Court perused the record and considered the submissions made by the parties. Although the counsel for the respondent-accused vehemently opposed; however, the Court was inclined to remand the matter back to trial court for a decision on merits. It was observed that primary function of the Court is to adjudicate the dispute on its own merit rather adhering to technicalities of law. On perusal of the roznama, the High Court was satisfied that the appellant was diligent in prosecuting his case. The reason stated for non-appearance was stated to be communication gap between the appellant and his advocate, which found favour with the Court. Hence, the order impugned was set aside and the complaint was restored to the file of the trial court for deciding the same in accordance with law. [Ambaji Ganu Gurav v. Sachin Chandrakant Narkar, 2018 SCC OnLine Bom 2772, dated 21-08-2018]

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