Counsel owe a duty of care to their clients and are liable for any negligence that results in prejudice to their clients' interests.

1. Counsel s duty towards the party engaging him is the point in issue here.

2. On may 21, 1980, an appeal was filed by the widow and children of Major Singh deceased who had been killed in a motor accident claiming enhanced compensation. This appeal was dismissed in default on Oct. 31, 1984. It was about three years thereafter, on Oct. 6, 1987 that an application was filed seeking rehearing of appeal on merits, accompanied by an application under Sec.5 of the Limitation Act, asking for condonation of the delay in the filing of this application.

3. The unrebutted averments of the petitioner-Manjit Kaur showed that after engaging counsel for the appeal and its admission to hearing, she went home but her counsel never, thereafter, communicated with her or informed her of the subsequent developments in the case and it is only when she came to Chandigarh on Oct. 5, 1987 and enquired from her counsel that she came to know that her appeal had been dismissed in default in Oct., 1984.

4. In their affidavits, neither of the two counsel (whose names are being deliberately withheld) through whom the appeal had been filed, stated that they had never communicated anything about the appeal to Manjit Kaur. Rather, it was said that they were not aware of the case having been dismissed in default, whereas, according to the opposite party, the case remained on the daily lists for two weeks before it was dismissed in default.

5. Such being the situation, notice was ordered to issue both the counsel for the appellant-Manjit Kaur to show cause, why :

(1) adverse comments be not made with regard to their conduct as counsel in this matter ?

(2) the matter be not reported, by thin Court to the Bar Council of Punjab and Haryana, and;

(3) substantial costs be not imposed upon them for their acts and omissions in this matter ?

6. An unconditional apology is what was put forth in reply by both the counsel. The senior counsel squarely accepted full responsibility for the dismissal of the case in default though he also mentioned his ill-health due to kidney ailment as a contributory factor for his fault; He, however, assured that this would never happen again. Similarly, the Junior Counsel too expressed regret in his affidavit and assured that such lapse would not recur in future.

7. In view of the clear and unconditional aplogy offered by the counsel concerned and taking into account also the serious ailment that the senior counsel is now said to be suffering from, a warning to be careful in future would suffice, but with the further direction to them to return the fee received from the petitioner Manjit Kaur, who on account of their lapse was constrained to engage another counsel and also to compensate her for the amount, namely; Rs. 1,000.00 awarded against her as costs for the rehearing of the appeal. Both counsel very fairly and unhesitatingly agreed to return the fee and also to pay this sum of Rs. 1,000.00 to Manjit Kaur.

8. Before parting with this matter, a comment must be recorded on the judgment of the Supreme Court in Rafiq V/s. Munshilal, AIR 1981 SC 1400, where the matter involved was with regard to an appeal filed by the appellant which was disposed of in the absence of his counsel, as also the rejection of the application for recall of the order of dismissal. In dealing with this matter, the Court observed : -

"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,