Rafiq & ANR Vs. Munshilal & ANR
[1981] INSC 94 (16 April 1981)
DESAI, D.A.
DESAI, D.A.
ISLAM, BAHARUL (J)
CITATION: 1981 AIR 1400 1981 SCR (3) 509 1981
SCC (2) 788
CITATOR INFO :
R 1984 SC 41 (4)
ACT:
Procedure-Litigant entrusted appeal to an
advocate- Advocate failed to appear in Court at hearing-Appeal
dismissed-Litigant, whether entitled to have the appeal restored for hearing.
Costs-Appeal dismissed on account of absence
of advocate at hearing-Costs, if could be recovered from Advocate.
HEADNOTE:
On knowing that the High Court had dismissed
his appeal on the ground that his Advocate was not present in the Court when
the matter was taken up for hearing the appellant moved an application for the
recall of the order dismissing the appeal and for permission to participate in
the hearing of the appeal. The High Court rejected this application stating
that no satisfactory explanation had been furnished by the Advocate for his
slackness in filing the affidavit for nearly 15 days after it was drafted.
On the question whether the litigant is
entitled to have his case reheard by the High Court.
HELD: It is not proper that an innocent
litigant, after doing everything in his power to effectively participate in his
proceedings by entrusting his case to the Advocate, should be made to suffer
for the inaction, deliberate omission or misdemeanour of his agent. For
whatever reason the Advocate might have absented himself from the Court, the
innocent litigant could not be allowed to suffer injustice for the fault of his
Advocate. [511 B] The respondent's costs should be recovered from the Advocate
who absented himself from Court. [511 D] [The Court directed the appeal to be
restored to its original position in the High Court and heard.]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1415 of 1981.
Appeal by special leave from the judgment and
order dated the 7th January 1981 of the Allahabad High Court in Civil Misc.
Application No. 113 of 1981 in Second Appeal No. 1484 of 1973.
O.P. Rana, M. Qamaruddin and Mrs. M.
Qamaruddin for the Appellants.
510 A.K. Sanghi for Respondent No. 1.
The Judgment of the Court was delivered by
DESAI, J. Special leave granted.
We have heard Mr. O. P. Rana, learned counsel
for the appellant, and Mr. A.K. Sanghi, learned counsel for the respondent. The
High Court disposed of the appeal preferred by the present appellant in the
absence of the learned counsel for the appellant. When the appellant became
aware of the fact that his appeal had been disposed of in the absence of his advocate,
he moved an application in the High Court to recall the order dismissing his
appeal and permit him to participate in the hearing of the appeal. This
application was rejected by the High Court on the ground that though the
application was prepared and drafted and an affidavit was sworn on 29th
October, 1980, the same was not presented to the court till November 12, 1980
and that there is no satisfactory explanation for this slackness on the part of
the learned advocate who was requested to file the application.
The disturbing feature of the case is that
under our present adversary legal system where the parties generally appear
through their advocates, the obligation of the parties is to select his
advocate, brief him, pay the fees demanded by him and then trust the learned
advocate to do the rest of the things. The party may be a villager or may
belong to a rural area and may have no knowledge of the court's procedure.
After engaging a lawyer, the party may remain supremely confident that the
lawyer will look after his interest. At the time of the hearing of the appeal,
the personal appearance of the party is not only not required but hardly
useful. Therefore, the party having done everything in his power to effectively
participate in the proceedings can rest assured that he has neither to go to
the High Court to inquire as to what is happening in the High Court with regard
to his appeal nor is he to act as a watchdog of the advocate that the latter
appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi
stated that a practice has grown up in the High Court of Allahabad amongst the
lawyers that they remain absent when they do not like a particular Bench. Maybe
he is better informed on this matter. Ignorance in this behalf is our bliss.
Even if we do not put our seal of imprimatur on the alleged practice by
dismissing this matter which may discourage such a tendency, would it not bring
justice delivery system into disrepute. What is the fault of the party who
having done everything in his 511 power and expected of him would suffer
because of the default of his advocate. If we reject this appeal, as Mr. A.K.
Sanghi invited us to do, the only one who would suffer would not be the lawyer
who did not appear but the party whose interest he represented. The problem
that agitates us is whether it is proper that the party should suffer for the
inaction, deliberate omission, or misdemeanour of his agent.
The answer obviously is in the negative.
Maybe that the learned advocate absented himself deliberately or intentionally.
We have no material for ascertaining that aspect of the matter. We say nothing
more on that aspect of the matter. However, we cannot be a party to an innocent
party suffering injustice merely because his chosen advocate defaulted.
Therefore, we allow this appeal, set aside the order of the High Court both
dismissing the appeal and refusing to recall that order. We direct that the
appeal be restored to its original number in the High Court and be disposed of
according to law. If there is a stay of dispossession it will continue till the
disposal of the matter by the High Court. There remains the question as to who
shall pay the costs of the respondent here. As we feel that the party is not
responsible because he has done whatever was possible and was in his power to
do, the costs amounting to Rs.200/- should be recovered from the advocate who
absented himself. The right to execute that order is reserved with the party
represented by Mr. A.K.Sanghi.
Appeal allowed to the extent indicated with
costs in the manner indicated.
P.B.R. Appeal allowed.
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