1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR CRI. APPLICATION NO.1859/2009 IN CRI. REVISION APPLICATION NO. 134/2008 (D) Ku. Leela d/o Ramaji Mahakalkar ..vs.. Brajendranath Jha and others ----------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders Mr. R.R. Vyas, Advocate for applicant, Mr. H.I. Kothari, Advocate holding for Advocate Mr.R.S. Sundaram for respondent Nos. 1 to 4. Mrs.T.D. Khade, A.P.P for respondent No.5. CORAM:- R. Y. GANOO, J. DATED :- 29th SEPTEMBER, 2009. 1. Criminal Revision Application No.134/2008 came to be dismissed in default on 3rd April, 2009. By this application, applicant wants that the said order be set aside. The delay in filing the application has already been condoned. 2. I have heard learned Advocates on both sides. 3. A perusal of the application goes to show that the Advocate was earlier appearing for the present applicant did not pay proper attention to the matter and subsequently the present applicant was required to engage another lawyer and there has been some delay on 2 her part to investigate into the matter. Ultimately the applicant was informed that the matter has been dismissed on 3rd April, 2009. A perusal of the application goes to show that the applicant was totally dependent upon the Advocate and because of the improper response he could not look into the matter and ultimately the Criminal Revision Application No.134/2008 came to be dismissed. The applicant was not at fault as regards the dismissal of the application. 4. The learned Advocate Mr. Kothari relied upon the judgment in the case of Hari Singh Mann .vs. Harbhajan Singh Bajwa and others reported in (2001) 1 SCC 169, to submit that once the order of dismissal is passed the Court has no power to set aside. Here taking the statement and submission that the Court cannot look into its earlier order in view of the provisions of Section 362 of the Code of Criminal Procedure. I have perused the said Judgment. The facts referred in the said judgment are different from the present one. In the said case certain orders on merits were passed and thereafter the Hon’ble Supreme Court has observed that no modification is made in the said order as could not be permissible as per Section 362 of the Code of Criminal 3 Procedure. In the present case the application has been dismissed in default that means the application is not dismissed on merits. In my view, the Court can entertain such application. After having seen the reasons the applicant cannot be treated as negligent. This is a fit case where order dated 3rd April, 2009 is liable to be quashed and set aside. In my view, in order to balance equity Rs.1000/- (Rupees One Thousand Only) can be paid to the respondents 1 to 4. Hence, the following order is passed. i) If the applicant deposits in this Court a sum of Rs.1,000/- (Rupees One Thousand Only) on or before 9th October, 2009, the order dated 3rd April, 2009 shall stand set aside and the application shall be restored to the file and shall be posted for admission on 14th October, 2009. If the applicant fails to deposit Rs.1,000/- (Rupees One Thousand Only) as mentioned aforesaid in this Court on or before 9th October, 2009, the application shall stand dismissed without further orders by the Court. ii) Cost when deposited as above, shall be paid over to the respondents 1 to 4 without guarantee or security. JUDGE adgokar