RAFIQ & ANR. versus MUNSHILAL & ANR.

Citation: [1981] 3 S.C.R. 509 · Decided: 16-04-1981 · Supreme Court of India · Bench: D.A. DESAI · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

509 
RAFIQ & ANR. 
v. 
MUNSHILAL & ANR. 
April 16, 1981 
[D.A. DESAI AND BAHARUL ISLAM, JJ.] 
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. 
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. 
A 
B 
c 
D 
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. 
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. 
G 
H 
• 
A 
B 
c 
D 
E 
F 
G 
• 
H 
510 
SUPREME COURT REPORTS 
A.K. Sanghi for Respondent No. I. 
The Judgment of the Court was delivere,d by 
DESAI, J. Special leave granted. 
[1981] 3 S.C.R. 
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 
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

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