Back
BAHARUL ISLAM, D.A.DESAI
Rafiq – Appellant
Versus
Munshilal – Respondent
How to restore an appeal dismissed for default due to an advocate's absence? What is the remedy for a party suffering due to an advocate's default in an appeal? What are the criteria for awarding costs when the advocate-absent default affected the party’s interest?
Key Points: - The Court allowed the appeal to be restored and set aside the High Court's dismissal due to advocate's default, emphasizing the party's lack of fault (!) . - The decision directs that the appeal be restored to its original number and disposed of according to law, with stay of dispossession continued until disposal (!) . - Costs of Rs. 200/- should be recovered from the advocate who absented himself; the party represented is not to bear those costs (!) . - The judgment notes the obligation of parties to engage and pay for advocates, but rejects penalizing the party for advocate’s default, highlighting the justice delivery concern (!) . - The appeal was disposed of with costs in favor of the party on the basis of restoration and handling of costs, and the right to execute is reserved with the party (!) . - The judgment references the principle that a party should not suffer due to the inaction or default of his agent, and restores the appeal to be heard on merits (!) . - The conclusion: appeal allowed to the extent indicated with costs as specified; order to be issued accordingly (!) . - Citation: AIR 1981 SC 1400 (!) .
Judgment
DESAI, J.:- Special Leave granted.
2. We have heard Mr. O. P. Rana, learned counsel for the appellant and Mr. A. K. Sanghi, learned counsel for the respondent. The High Court disposed of the appeal preferred by the present appellant in the absence of the learned counsel for the appellant. When the appellant became aware of the fact that his appeal had been disposed of in the absence of his advocate, he moved an application in the High Court to recall the order dismissing his appeal and permit him to participate in the hearing of the appeal. This application was rejected by the High Court on the ground that though the application was prepared and drafted and an affidavit was sworn on 29th October, 1980, the same was not presented to the Court till November 12, 1980 and that there is no satisfactory explanation for this slackness on the part of the learned advocate who was requested to file the application.
3. 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 advo
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
