Skip to content


Nirmal Das Gupta Vs. Prasanta Das Gupta and ors. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberM.A. (F) 85 of 1983
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 35 - Order 41, Rules 17 and 19
AppellantNirmal Das Gupta
RespondentPrasanta Das Gupta and ors.
Appellant AdvocateK.P. Sen and A.K. Laskar, Advs.
Respondent AdvocateS.K. Senapati and B.L. Singh, Advs.
DispositionAppeal allowed
Excerpt:
- - 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 inqure 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. the party had done everything within his power to effectively prosecute the appeal and by rejecting the appeal the person guilty of slackness or negligence was not penalised, but the punishment was visited upon the appellant who left the charge of the case, in supreme confidence, to his lawyer......penalty on him for the remiss of the lawyer. whileturning down the prayer for restoration, learned judge held that there was nonecessity of the appellant's presence on the date of hearing and learned counselwas 'responsible for delaying disposal of the appeal' so the learned judgedismissed the application for restoration of the appeal with cost of rs. 20/-. hence thepresent appeal. 3-4. can we sustain the impugned order of refusal to restore the appeal to file in view of the law laid down by the supreme court in rafiq.v. munsilal, air 1981 sc 1400. therein, the allahabad high court disposed of the appeal in the absence of the learned counsel for the appellant and the appellant being aware of the fact that his appeal had been disposed of in absence of his advocate, filed an.....
Judgment:

Lahiri, J.

1. We despise slow motion justice and long distance litigation. Accordingly we propose to hear the appeal dispensing with the preparation of the paper book and the records of the Court below and the learned counsel for both the parties lent their support and agreed to the proposal to uphold the cause of justice. We record our appreciation for the stance taken in assisting the Court to dispose quick justice.

2. Misc. Appeal 30 of 1982 was filed by the appellant in the Court of the Assistant District Judge No. 1, Silchar. He had engaged lawyer. The appeal was posted for hearing on 27-11-1982 on which day it was called on for hearing but neither the

appellant nor his advocate appeared whereupon the appeal was dismissed. The

petitioner filed an application for restoration of the appeal stating that he

had been blissfully ignorant about the date of hearing, he had engaged lawyer and the

dismissal amounted to inflicting penalty on him for the remiss of the lawyer. While

turning down the prayer for restoration, learned Judge held that there was no

necessity of the appellant's presence on the date of hearing and learned counsel

was 'responsible for delaying disposal of the appeal' So the learned Judge

dismissed the application for restoration of the appeal with cost of Rs. 20/-. Hence the

present appeal.

3-4. Can we sustain the impugned order of refusal to restore the appeal to file in view of the law laid down by the Supreme Court in Rafiq.v. Munsilal, AIR 1981 SC 1400. Therein, the Allahabad High Court disposed of the appeal in the absence of the learned counsel for the appellant and the appellant being aware of the fact that his appeal had been disposed of in absence of his advocate, filed an application to recall the order of dismissal and permit him to prosecute the appeal. However, the High Court rejected the application on the ground that slackness on part of the learned advocate was writ large. White reversing the order of the High Court, the Supreme Court observed in Rafiq (supra) (at p. 1401) :

'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 inqure 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...........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. May be 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 this 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 excute that order is reserved with the party represented by Mr. A.K. Sanghi.'

5. The present ease fairly and squarely falls within the four corners of Rafiq (supra). The appellant engaged his lawyer, reposed confidence in him that he would do the rest of the things in the appellate Court where his presence was not at all necessary which, in fact, is the finding of the learned Judge and it was due to the negligence or slackness on the part of the advocate that the appeal was dismissed for default. The party had done everything within his power to effectively prosecute the appeal and by rejecting the appeal the person guilty of slackness or negligence was not penalised, but the punishment was visited upon the appellant who left the charge of the case, in supreme confidence, to his lawyer. We cannot watch lazily if an innocent litigant suffers injustice because he had chosen an advocate who was slow, slack or negligent Therefore, we allow this appeal, set aside the impugned orders both dismissing the appeal and refusing to recall the order of dismissal We direct that the appeal be restored to its original number in the Court of the Assistant Dist. Judge and be disposed of according to law. If there was any stay order, it will continue till disposal of the appeal by the learned Judge.

6. Who should pay the cost to the respondent at this end? We have held that the appellant was not responsible because he has had done whatever was possible within his mite and was within his power. The cost of the appeal which we assess at Rs. 150/- payable to the respondents should be recovered from the learned advocate who absented himself. The right to execute this order is reserved with the party represented by Mr. Senapati.

7. In the result, the appeal is allowed to the extent indicated above with cost executable in the manner alluded and with a positive direction that the appeal should be heard and disposed of within 2 months from the date of receipt of the order by the learned Judge. The parties shall appear before learned Asstt. Dist. Judge No. 1 on 22-12-83, on which date learned Judge shall post the appeal for hearing.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //