Lahiri, Actg. C.J.
1. This is an application for restoration of Second Appeal No. 48 of 1982 which was dismissed on 4-3-1983, for default on the part of the counsel for the appellant/petitioner. The appellant-petitioner comes from a distant village in the district of Lakhimpur. The subject-matter of the appeal is an immovable property and it involves a sizeable area of land measuring 6 B. 1 K. and, in a part of which, the appellant-petitioner is having his residential house and is residing with the members of his family. As already stated, the aforesaid Second Appeal No. 48/82 was dismissed on 4-3-1983 on account of laches on the part of the counsel for the appellant. The petitioner came to know of the same on 2-1-1985 from the Nazir of the Assistant District Judge at Lakhimpur. He filed objection, which was, however, rejected. It is stated in the petition that due to financial constraints and illness, the petitioner could come to Gauhati only on 8-4-85 and met his counsel who, after looking into the case file, informed him about the aforesaid dismissal of the appeal. Accordingly, this petition for restoration was filed on 12-4-1985.
2. Mr. B.K. Goswami, learned counsel for the opposite party submits that the appellant-petitioner must have knowledge about the dismissal of the appeal, as, after dismissal execution proceeding ensued and he participated in it.
3. However, the primary question is whether for the default or carelessness and/or negligence of the lawyer should the litigant be punished? When the default is due to the negligence of the lawyer, the poor litigant should not be penalised therefor, as he was never aware of the fact that the execution proceeding continued on account of dismissal of the appeal due to default of the lawyer engaged in the appeal. We are of the firm opinion that the appellant, who is a villager, could not have comprehended that his appeal had been dismissed due to default of the lawyer. In Ram Sumiran v. D. D. C. (1985) 1 SCC 431 : (AIR 1985 SC 606) a delay of 6 years in filing application for bringing LRs of deceased-respondent on record has been condoned after setting aside the abatement on the score that the appellants in that case were admittedly from the rural area and in a country like ours where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time.
4. This petition must be allowed also on the authority 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; Smti Lachi Tiwari v. Director of Land Records, AIR 1984 SC 41. In Rafiq (supra), their Lordships stated thus :
'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 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.'
4A. The principle has been confirmed in Goswami Krishna Murarilal Sharma (supra) and further reinforced in Smti Lachi Tewari (supra).
5. The principle finds new dimension in a recent decision of the Supreme Court in Nirankar Nath Wahi v. Fifth Additional District & Sessions Judge, Muradabad C. A. No. 2562 of 1984 decided on 7-6-1984 (reported in AIR 1984 SC 1268) coram: A. P. Sen and Thakkar, JJ. In an adversary system obtaining in India, a country inhabited mostly by poor, non-literate or semi-literate persons, unaware of basic knowledge of substantive and procedural laws enough chances and opportunities should be given to the litigants to fight out litigation in a 'fair manner'. Subject to the constrains in law, a contestant should be afforded 'free and fair' opportunity to contest an action in Court. Is it not antithesis to fair play if an adversary is permitted to take an ex parte decision or decree in a contested action? Indeed, there may be exceptional cases, say, where a party who does not contest a proceeding at all even after notice of the action or where a contumacious litigant delays the trial to cause sufferance to its adversary and the Court. It would not be 'unfair' to allow ex parte hearing of the matter in such circumstances. However, in the present day socio-economic order obtaining in India, it is too much to expect a litigant to be aware of our intricate and technical procedural law. In our opinion, the legal services have not as yet communicated even the principles of elementary laws to the poor, non-literate or semi-literate people and practically nothing has been done to promote awareness of their legal rights and obligations. Indeed, it is the need of the hour to provide preventive Legal Aid Service for communicating the law to the poor, non-literate or illiterate mass. Those who should have been informed about their legal rights and obligations have not been given any such education and still they continue to be ignorant. Should we punish those illiterate and ignorant people when the State and the legal services have failed to inform them about their legal rights and obligations? In this constituency, the State is obligated by and under the Directive Principles of State Policy and it is the fundamental duty of every citizen under Article 51A to provide preventive legal aid services for communicating laws to the poor, non-literate and illiterate mass and for promoting awareness for their legal rights and obligations. Should we punish those wretched and down-trodden for their illiteracy and ignorance when they are not provided with the basic information necessary to be communicated to them? The State has a constitutional obligation, the learned members of the noble profession, the natural leaders and social workers have fundamental duties. We are of the view that legal aid in the Indian context to be effective and more meaningful must progressively adopt dynamic, strategies and affirmative action programmes for eradicating conditions of poverty and ignorance in our society. Legal literarcy and legal advice should be given due weightage and importance along with the traditional legal aid in Court. Unless it is done, the Courts must be liberal in view of semi-total absence of legal literacy in the country.
6. In the instant case, the petitioner's case is squarely covered by the aforesaid pronouncements of the Supreme Court. The petitioner also comes from a far-flung village of the district of North Lakhimpur and he took steps to come to Gauhati all the way from a distant village in the district of Lakhimpur and filed an application on coming to know about the fate of his appeal from his lawyer, which was dismissed on account of his lawyer's laches. He should not be penalised for the fault of his lawyer. Being a villager, he may not be aware of technicalities of procedural laws. In our opinion, it is preeminently a fit case where the appeal should be restored to file, which we hereby do.
7. This Second Appeal shall come up before a single Bench for hearing. This order has been made by a Division Bench as desired by the learned counsel for the parties. The order disposes the Misc. Case.