Holding

An innocent litigant should not suffer for his advocate's default; the appeal must be restored and costs awarded against the absent advocate.

Summary

Rafiq appealed to the Allahabad High Court, but his appointed advocate failed to appear, resulting in the dismissal of the appeal. Rafiq filed an application seeking recall of the dismissal and permission to participate, which the High Court rejected due to the advocate's delay in filing an affidavit. The Supreme Court examined whether an innocent litigant should suffer for the misconduct or negligence of his counsel. It held that the litigant, having fulfilled his duty by engaging and briefing the advocate, cannot be penalised for the advocate's absence. Consequently, the Supreme Court restored the appeal to its original number for hearing and ordered that the respondent's costs of Rs.200 be recovered from the absent advocate. The appeal was allowed with costs awarded against the advocate.

Issues considered

Whether an appeal dismissed because the appellant's advocate was absent can be restored for hearing.
Whether the costs of the respondent may be recovered from the advocate who failed to appear.

Subjects

appeal dismissaladvocate absencerestoration of appealcosts against counsellegal representationprocedural default

Judgment

509

RAFIQ & ANR. A
v.
MUNSHILAL & ANR.

April 16, 1981

[D.A. DESAI AND BAHARUL ISLAM, JJ.] B
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. c
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 D
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 E
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 Bl

The respondent's costs should be recovered from the Advocate who F
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.
G
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 H
Appellants.
510 SUPREME COURT REPORTS [1981] 3 S.C.R.

A A.K. Sanghi for Respondent No. I.

The Judgment of the Court was delivere,d by

DESAI, J. Special leave granted.

B We have heard Mr. 0. 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
c 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
D 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,
E 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
F 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
G 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
H practice by dismissing this matter which may ~iscourage 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
RAFIQ v. MUNSHILAL (Desui, J.) 511

power and expected of him would suffer because of the default of A
his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited
us to do, the only one wh::i would suffer would not be the lawyer who
did not appear but the party whose interest he represented. The
problem that agitates us is w:1ether it is prop~r 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 B
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 c
refusing to recall that order. We direct that the appeal be restored
to its orginal 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 c::>sts of the respondent here.
As we feel that the party is not responsible because he has done D
whatever was possible and was in his power to do, the costs amount-
ing 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 E
indicated.

P.B.R. Appeal allowed.

r