Lahiri, Actg. C.J.
1. Should a party to the appeal he penalised for the inaction, deliberate omission, negligence or misdemeanour of his lawyer? The answer obviously is in the negative, in view of the decisions of the Supreme Court in Rafiq v. Munshilal, (1981) 3 SCR 509 = AIR 1981 SC 1400; Goswami Krishna Murarilal Sharma v. Dhan Prakash, (1981) 4 SCC 574; Smt. Lachi Tewari v. Director of Land Records, AIR 1984 SC 41.
2. Shortly put the relevant facts necessary to answer the questions posed in this application under Article 226 of the Constitution are that a revenue appeal was taken by the petitioner to the Assam Board of Revenue, statutory Tribunal, which was registered as Case No. 176 RA(G) of 1982. The appeal was hung up for hearing on 20-10-82. The lawyer engaged by the appellant defaulted, and, accordingly, the appeal was dismissed for default. Learned lawyer appeared and explained the reasons in writing, under Clause 15 of the Assam Board of Revenue Regulation, 1963, which was registered as Case No. 3 RA(G) (RST) of 1983. Clause 15 enables a party to so apply for and obtain an order of restoration of an appeal dismissed for default, if the party satisfies the Board that he was prevented by sufficient cause from appearing when the appeal was called for hearing. Naturally, the Board has had jurisdiction to restore: an appeal. Learned Member of the Board of Revenue rejected the explanations offered by the lawyer, took note of the fact that learned lawyer had taken four adjournments, and, rejected the application for restoration of the appeal. The appeal in question involved valuable property. It was dismissed for failure of the appellant's lawyer to appeal and argue the case on the date of hearing. The party lost the appeal, without even getting any opportunity to put forward his case. The Board found fault with the lawyer but penalised the litigant to suffer a heavy loss.
3. Is the order just, proper, reasonable and valid? Is the order violative of Article 141 of the Constitution? Should we allow the impugned order to stand in view of the law laid down by the Supreme Court? These are the questions which have come up for consideration in this writ application.
4. The disturbing features prevailing under our present adversary legal system and the helpless condition of a party involved in an appeal have been pictured by their Lordships of the Supreme Court in Rafiq v. Munshilal, (AIR 1981 SC 1400) (supra). Their Lordships have also answered the question whether it is proper that a party should suffer for the inaction, omission, negligence or misdemeanour of the lawyer/agent and answered it in the negative. Their Lordships observed as follows :
'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 require 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 watch-dog of the Advocate that the latter appears in the matter when it is listed. It is no part of his job.
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 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. May be that the learned Advocate absented himself deliberately or intentionally.'
5. Indeed, it is a disturbing feature that in our present adversary legal system the litigants contest an appeal through their Advocates. This case was no exception. The petitioner selected his lawyer, briefed him and entrusted him to do the rest of the things in the appeal. Naturally, after engaging the lawyer the petitioner had nothing to do with the appeal. He remained supremely confident that his lawyer would look after his interest. The personal appearance of the appellant-petitioner was not only not required but it was hardly useful.
6. It is thus seen that insofar as the petitioner-appellant was concerned he had done everything within his power to effectively participate in the proceedings and he was not required to attend at the hearings to enquire as to what happened in the appeal. He was
not required to act as a watchdog of the Advocate to see that the latter appeared in the matter when it was hung up for hearing. Under these circumstances, when the appellant had done everything required to be done he should not have been penalised for the absence, or default, or carelessness or negligence of his lawyer. Even if the lawyer for the appellant absented himself deliberately or intentionally, we cannot penalise the litigant for the inaction, deliberate omission or misdemeanour of his agent. Under these circumstances, in the instant case, we must hold that for the fault of the lawyer, the penalty of dismissal of the appeal was imposed on the litigant. The same view has been taken by their Lordships in Goswami Krishna Mufarilal Sharma, ((1981) 4 SCC 574) (supra) and Smt. Lachi Tewari, (AIR 1984 SC 41) (supra). We have several decisions within the High Court wherein similar view has been taken, vide Nirmal Das Gupta v. Prasanta Das Gupta, AIR 1985 Gau 3; State of Assam v. Basanta Burman, AIR 1985 Gau 13; and Binod Barua v. Ratul Chandra Goswami, Misc. Case No. 72 of 1985 decided on 19-6-1985 : (AIR 1987 Gau 7......).
7. We are, therefore, of the opinion that the impugned order is violative of Article 141 of the Constitution of India. The law laid down by the Supreme Court is binding on the High Court and also the Tribunal. Under these circumstances, the impugned order cannot be allowed to stand on the authority of the decisions laid down by the Supreme Court.
8. In the result, the petition must be accepted, which we hereby do, upon setting aside the impugned order dated 21-7-1983 passed in Case No. 3 RA(G) (RST)/83 and the order dated 23-2-83 in Case No. 176 RA(G) of 1982. We direct the Board of Revenue to restore the appeal to file and also direct both the parties through their Advocates to appear before the Board of Revenue on the 19th July, 1985 to take necessary orders which may be passed by learned Board of Revenue. On appearance of the parties, learned Board shall hear and dispose of the appeal in accordance with the provisions of law.
9. Now comes the question of awarding cost. We feel that Respondent No. 2 should not suffer. Following the directions contained in Rafiq (AIR 1981 SC 1400) (supra) we have awarded costs against the defaulting lawyer in some cases. We follow the same principle. We also award a cost of Rs. 300/- against the lawyer who appeared on behalf of the petitioner before the Board of Revenue. However, Mr. B. Sarma, learned counsel for Respondent No. 2 in the true tradition of the Bar stated that the learned lawyers being rather young, should not be burdened with cost. In view of the submission made, we leave the parties to bear their respective costs. Send down the records forthwith.