LexTHE SECRETARY, DEPARTMENT OF HORTICULTURE, CHANDIGARH & ANR. versus RAGHU RAJ
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[2008] 14 S.C.R. 580 A THE SECRETARY, DEPARTMENT OF HORTICULTURE,· ~_,.,-- CHANDIGARH & ANR. \C RAGHU RAJ (Civil Appeal No. 6142 of 2008) B OCTOBER 17, 2008 [C.K. THAKKER AND D.K. JAIN,. JJ.] 'r Code of Civil Procedure, 1908 - 0. XU, rr 17 and 19 rlw c 0. XL/Ir. 1 - Appeal from Appellate Decree - Second appeal - Dismissal of, on merits in absence of counsel for the appel- /ant - Propriety of - Held: Not proper - Appeal can be dis;. missed for default but cannot be decided on merits in absence of appellant or his advocate - On facts, appeal which was ad- D milted in 1980 came up for final disposal in 2006 - Also sub- stantial question of law· framed for the first time in 2006 - Jn view thereof, High Court ought to have granted opportunity to t the counsel for appellant to make his submissions by adjourn- ing the matter - Thus, order of High Court dismissing Second E Appeal as a/so recall application set aside -:-- Matter remitted to High Court for fresh disposal. Advocate - Absence/Non-appearance of - Held: Can- not be excused if sufficient cause not shown - Advocate is duty bound to appear and argue the case as and when it is F called out for hearing or make alternative arrangement - Fail- ure to do so would be unfair to the client and discourteous to \ 1' the Court and must be severely discountenanced - However, when advocate fails to appear, party should not suffer on ac- count of default or non-appearance of advocate. G Aggrieved, by the decree passed by the lower ap- pellate court re-instating the responclent-workman, appel- !ant-employer filed second appeal. The appeal was ad- v mitt~d in year 1980 and was pending for final disposal. In year 2006, the High Court dismissed the appeal on merits H 580 THE SECRETARY, DEPT. OF H., CHANDIGARH 581 & ANR. v. RAGHU RAJ _, -4 in absence of the counsel for the appellant. Application A for recalling the said order was also dismissed. Hence, the present appeal. Allowing the appeal and remitting the matter to the High Court, the Court. B HELD: 1.1 It cannot be gainsaid that an advocate has "") no right to rem.ain absent from the Court when the case of his client· comes up for hearing . .He is duty bound to attend the case in Court or to mak~ an alternative arrange- ment. Non-appearance in Court without 'sufficient cause' c cannot be excused. Such absence is not only unfair to the client of the advocate but also unfair and discourte- - dus to the Court and can never be countenanced. At the same time, however, when a party engages an advocate who is expected to appear at the time of hearing but fails D to appear, normally, a party should not suffer on account + of default or non-appearance of the advocate. [Paras 27 and 28] [589-D-F] 1.2 It is clear that this Court has always insisted ad- · vocates to appear and argue the case as and when it is E called out for hearing. Failure to do so would be unfair to the client and discourteous to the Court and must be se- verely discountenanced. At the same time, the Court has also emphasized doing justice to the cause wherein it is appropriate that both the parties are present before the F ... ; Court and they are heard. Once a party engages a coun- sel, he thinks that his advocate will appear when the case will be taken up for hearing and Court calls upon the coun- sel to make submissions. It is keeping in view these prin- ciples that the Court does not proceed to hear the matter G in absence of the counsel. [Para 34] [592-D-F] ~.~ Rafiq & Anr. V Munshi/al & Anr. (1981) 2 SCC 788; Smt. Lachi Tewari & Ors. v. Director of Land Records & Ors, 1984 Supp. SCC 431; Mangi Lal & Ors. v: State of M.P, (1994) 4 .... SCC 564; Tahil Ram /ssardas Sadaranganj & Ors. v . H 582 SUPREME COURT REPORTS [2008] 14 S.C.R. A Ramchand /ssardas Sadaranganj & Anr., 1993 Supp (3) SCC 256 - referred to. 2.1 In the instant case, the advocate, appearing for the appellants, has filed an affidavit in support of the re- call application. It is clear from the order dated April 19, 8 2006 that at the time of hearing of arguments, the counsel for: the appellant was not present. The arguments on be- half of the respondent-workman were heard and the or- der was reserved. But, in the subsequent order dated April 25; 2006, the Judge who had heard the matter on April 19, C 2006 noticed that a substantial question of law had not been framed while admitting the appeal. Therefore, the Judge orde
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