The innocent litigant could not be allowed to suffer injustice for the fault of his Advocate

The innocent litigant could not be allowed to suffer injustice for the fault of his Advocate

Supreme Court of India

 Equivalent citations: 1981 AIR 1400, 1981 SCR (3) 509

Author: D Desai

Bench: Desai, D.A.

RAFIQ & ANR.                     .. .. ..PETITIONER


MUNSHILAL & ANR.                      .. .. ..RESPONDENT

DATE OF JUDGMENT : 16/04/1981



 1981 AIR 1400

 1981 SCR  (3) 509

 1981 SCC  (2) 788

  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.

 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 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

This entry was posted in Code of Civil Procedure 1908, Order IX, Order IX Rule 9, Uncategorized. Bookmark the permalink.

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