Bansilal and others vs Mukundas

This application affords a good example of how utter want of attention and lack of sense of responsibility on the part of an Advocate leads to disastrous results in so far as the case of a party is concerned. We have here to deal with a series of applications for restoration. An appeal was filed by Bansilal and others, the petitioners before us, against the decree passed by the Original Side of the High Court against them for a sum of Rs. 74,080/- together with interest at 10 annas per cent, per mensem. This appeal was filed on 22nd Shehrewar 1354 F. On 5th Khurdad 1357 F. when the appeal came on for hearing, the appellants and their Advocate were absent while the respondent''s Advocate was present. The appeal therefore was dismissed for default. The appellants filed an application for restoration of the appeal on 12th Amardad 1357 F., alleging that the appellants Nos. 1 to 3 were seriously ill and they were not able to attend to the case and relied upon their Advocate. It was also stated in the application that the Advocate appearing for the appellants had given up practice in pursuance of a movement to stop practice temporarily. Setting out these grounds it was prayed that the appeal may be restored. The Court directed notice of this application to be issued to the other party. This order was passed on 4th Azur 1358 F. and the appellants took time to pay the necessary process, from 20th Azur 1358 F. to 7th Farwardhi, 1358 F. and when the necessary process for the issue of notice to the respondent was not deposited, the Court dismissed the application for restoration on 7th Ardibhehist 1358 P.

The appellants filed a second application for restoration on 5th Khurdad 1353 F. In this application the appellants alleged that their Advocate, Mr. Laxman Rao waroodkar had gone out, that the letters intimating the fact that process had to be paid were received by their clerk, Bankatlal, but as Bankatlal had left the place on account of the disturbed conditions in the State they could not know about it and therefore the necessary process could not be paid in time. This application came on for hearing on 11th Azur 1359 F. and as neither the appellants nor their Advocate was present, the Court having waited till the close of the day''s sitting viz. 4 p. m. dismissed the application for default.

After this for the third lime the appellants filed an application on 9th Dai 1359 F. wherein they stated that on 11th Azur 1359 F. when the restoration application was put up before the Bench their Advocate, Mr. Laxman Rao Waroodkar was busy in the Judicial Committee. They alleged that as Mr. Laxman Rao Waroodkar was busy in the Judicial Committee till the close of the days sitting, he could not appear in the High Court when the application for restoration was called for hearing. This application of 9th Dai 1359 F. came on for hearing before the Bench on 11th July 1950 when again on account of the absence of the petitioners and their Advocate the petition was dismissed for default with costs.

Now for the fourth and the last time an application was filed on 19th July 1950 and the grounds set out in this application are that at the time when the restoration application came on for hearing before the Bench the appellants'' Advocate was busy before another Bench in the High Court and he was busy in the office and therefore was not able to be present at the time when the application came on for orders. It is this last application that has come up for consideration and if this is allowed then we shall have to consider the other three petitions and instead of considering those petitions separately we thought it better to consider all the petitions together to avoid further delay.

The Vakil appearing for the respondent strenuously contested and objected to the granting of the application for restoration on the ground that these were the dilatory tactics of the defendant to deprive the plaintiff of the fruits of the decree. Prima facie, the long time during which these petitions were pending and the filing of repeated petitions for restoration are such circumstances that lend support to the contention of the respondent that the defendant is adopting delaying tactics. The Advocate for the petitioners vehemently argued before us that there was no necessity to pay process fee and therefore the dismissal on 7th Ardibihest 1358 F. for non-payment -of process fee was wrong. When the first application for restoration was filed the Court directed notice to be taken and the Advocate for the petitioners took time after time to pay the process. In the face of this we were really startled to hear this argument of the Advocate. If it was a fact, as it is argued, that the order for deposit of process fee was wrong then this very ground could have been urged in the petition for restoration. We do not find this ground in the petition while on the contrary it is mentioned therein that the petitioners did not get the intimation regarding payment of process in time and as appellant No. 2''s sons had died and the Munim to whom the letters were addressed had left the State the process could not be paid in time. Thus we do not find any substance in this contention of the Advocate.

So far as the last two applications are concerned the dismissal appears to have been caused on account of the absence of the Advocate. In the third application for restoration the cause for the non-appearance given is that the Advocate was busy in another Court and in the office, we must strongly deprecate the practice of an Advocate keeping himself busy In the office and other places without making arrangements for his being informed when his case is put up. This conduct certainly amounts to negligence on the part of the Advocate and as regards the conduct of the Advocate of the petitioners, we will be making our observations later in this order. But we feel that as far as possible the sins of an Advocate should not be allowed to visit on the party. Therefore, without the rights of the party being affected prejudicially we think that the interests of justice would be met, if we mulct the defendants-petitioners in costs.

At the outset we desire to point out that we expect that an Advocate for a party would conduct a case with all the sense of responsibility which he is expected to have in the discharge of his duty to his client. In cases where an appeal is dismissed for default where the question arises as to whether there are sufficient grounds for the restoration of the appeal, Courts would ordinarily be inclined to restore the appeal unless there has been gross negligence on the part of the party, because the Courts are there only for the advancement of justice and ordinarily would not be inclined to deprive a litigant of his right. As was observed by Lord Thankerton in the case of ''Srinivas Prasad Singh v. Keshava Prasad Singh'', 63 Ind App 12 PC "every litigant has the right to have his case heard and disposed of but that right must not be abused..............". Having regard to the principle enunciated above, the party should not be made to suffer for the negligence or default of his Advocate and so far as the other party is concerned, as has always been held, costs are always a Panacea for all ills, he could be compensated by way of costs for the inconvenience caused.

We feel that in this case the conduct of the Advocate in the discharge of his duty has been most reprehensible. We are of opinion that he has in the most light-hearted manner put in petitions for restoration whenever the applications were dismissed for default and each time has conveniently trotted out some excuse for his not being present at the time when the application was put up. We want to make it clear that Advocates cannot trifle with Courts in this manner. There is a grave responsibility on the Advocate and there is a duty both to the client as well as to the Court. We should have taken steps against the Advocate on the administrative side but we refrain from doing so now. But here we would make it clear that every Advocate should be present at the time when a case is called on for hearing and if he is likely to be busy in any other Court, we expect that he would move the Court to put his case by. We will not countenance an application for restoration where the party or his Advocate does not appear in Court, but later flies an application merely alleging that his Advocate was busy in another Court and hence he could not appear in time. We expect the Advocate to conform to the Advocate''s Rules wherein it is provided that when an Advocate is busy in another Court he should submit a memo intimating about the Advocate being busy in another Bench and pray for the case being put by; it will not do for an Advocate to get the case dismissed for default with impunity and then file an application for restoration stating that his absence was accidental. We cannot help remarking that the attitude of the Advocate in this case has been far from satisfactory and it does not become an Advocate of this High Court to get his applications dismissed for default and flourish applications for restoration in succession expecting that they would be allowed in the usual course. We expect that the Advocate would mend his ways and discharge the duties of an Advocate with the sense of responsibility that is necessary.

We grant these applications for restoration on condition that the petitioners-appellants pay the respondent a sum of Rs. 500/- on account of costs, within two months of this order.

This will be a condition precedent to the appeal being restored. If the amount of costs is not paid within the specified period the applications shall stand dismissed.