A party should not be penalized for the inaction, omission, negligence, or misdemeanour of his lawyer.

LAHIRI, Actg. C.J. :- Should a party to the appeal be 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 Art.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 Cl. 15 of the Assam Board of Revenue Regulation, 1963, which was registered as Case No. 3 RA(G) (RST) of 1983. Cl. 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 appellants 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 Art.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 Courts 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 par