Research › Search › Judgment

Andhra High Court · body

2003 DIGILAW 542 (AP)

S. Shankaramma v. S. Ramakrishna Reddy

2003-04-07

C.Y.SOMAYAJULU, G.BIKSHAPATHY

body2003
G. BIKSHAPATHY, J. ( 1 ) THE application is filed to condone delay of 1205 days in filing the petition to restore the L. P. A. , which was dismissed for default. ( 2 ) IN the affidavit filed in support of the application to condone the delay it is stated that the L. P. A. was entrusted to one mr. Uday Kumar Joshi, Advocate and he has been looking after the case. The L. P. A. was dismissed on 10-9-1999 with the following endorsement:"neither the appellant nor his counsel is ready. Hence the appeal is dismissed for default". The petitioners submitted that till the 2nd petitioner approached the Advocate in the last week of December, 2002 to file a petition to bring on record the legal representative of the first appellant, who died on 6-12-2002, he was under the impression that the L. P. A. was still pending. It is only when he enquired from the Computer Section of High Court, he came to know that the L. P. A. was dismissed on 10-9-1999. Thus, there was a delay in filing the application and the delay was neither willful nor wanton, but only on account of the default made by the counsel. ( 3 ) MR. Uday Kumar Joshi also filed his personal affidavit in this case stating as follows:"i did not notice the case in the cause listen 10-9-1999 and when the case was called for hearing it was by accidental mistake on his part, the appeal was dismissed for default. There was no deliberate omission on the part of the advocate for the dismissal of the appeal". ( 4 ) THE learned Senior Counsel mr. T. Veerabhadrayya appearing for the appellants submits that the delay cannot be attributed to the petitioners-appellants as what they were expected to do to deal with the appeal was done by them. The counsel did not deal with the matter required to be dealt with as a counsel holding the brief and therefore the delay has to be condoned. T. Veerabhadrayya appearing for the appellants submits that the delay cannot be attributed to the petitioners-appellants as what they were expected to do to deal with the appeal was done by them. The counsel did not deal with the matter required to be dealt with as a counsel holding the brief and therefore the delay has to be condoned. He relies on the Judgment of the Supreme Court reported in Rafiq v. Munshilal, wherein the supreme Court 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 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 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. Mr. A. K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. May be we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. 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. 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 the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the high Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by mr. A. K. Sanghi". Yet in another Judgment Lachi Tewari v. Director of Land Records the same view was expressed referring to the earlier decision referred to above. Para 3 of this Judgment is relevant in this regard, which is extracted below : one Dwarika Nath Tewari, who is now dead, had obtained the rule nisi in civil Rule 217 of 1976 in the High Court of Assam, Nagaland, Meghalaya, manipur and Tripura. When rule nisi came up for hearing on April 21,1983 which appears to be the first day of hearing after the rule was issued, the learned Judges of the Division Bench of the High Court made an order which reads as under:-"none to press this application. Accordingly the same is rejected. When rule nisi came up for hearing on April 21,1983 which appears to be the first day of hearing after the rule was issued, the learned Judges of the Division Bench of the High Court made an order which reads as under:-"none to press this application. Accordingly the same is rejected. The rule is discharged. That stay order granted by this Court on 6-5-1976 stands vacated". It appears that soon thereafter within a span of about 10 days an application was moved on behalf of the petitioner pointing out to the court the circumstances in which neither the petitioner nor his three learned counsel were present and sought the indulgence of the court to recall the order dated april 21, 1983 on the ground that april 21, 1983 happened to be a day on which the court reopened after Bihu holidays and that the learned Senior counsel who had gone to Calcutta during the vacation had not been able to return on account of the irregularity of air services. It was further stated that the two other learned counsel were busy in Court Nos. 2 and 3 when the matter was called for hearing and a request made to pass over the matter. This ground did not favour with the learned Judges of the High Court and the application for recalling the order was rejected. Hence this appeal by special leave. ( 5 ) IN the fact situation of this case it is true that the petitioners cannot be found fault with. Once they have handed over the brief to the counsel, it is the solemn duty of the counsel to take care of the matter and intimate the client at frequent intervals. But in the instant case the counsel exhibited a totally callous attitude in dealing with the matter. The cause-list is being printed by the High court on day-to-day basis only to enable the advocates to know the position of their cases and getting ready with the matters. It is also not disputed that the matter was listed on two or three occasions when the counsel was absent and there was no representation on his behalf. Under these circumstances even though we do not find fault with the petitioners-appellants, but we find that there was any amount of latches on the part of the counsel. It is also not disputed that the matter was listed on two or three occasions when the counsel was absent and there was no representation on his behalf. Under these circumstances even though we do not find fault with the petitioners-appellants, but we find that there was any amount of latches on the part of the counsel. It is the duty of the counsel when once the brief is entrusted by the client to him, to bestow his attention and discharge his professional obligation to the best of his ability. But keeping away from the case and the Court enures to nobody s benefit and on the other hand it exhibits professional delinquency thereby subjecting the noble profession to public criticism. A litigant always keeps the counsel in high esteem and great confidence. Therefore the counsel all the more ought to feel more responsible and responsive to keep such a fiduciary relationship alive thus ensuring greater confidence by the client towards the counsel. If this minimum requirement is not achieved the public tend to lose confidence in the lawyers. It need not be emphasized that if the brief entrusted to the Advocate by the client is dealt with in such a manner, the clients would tend to lose confidence in the advocates and bring disrepute to the institution itself. It is also not uncommon that third party rights would accrue consequent on the order of dismissal passed by this Court on acceunt of enormous delay of more than three years in this case. ( 6 ) MERELY stating that he could (not) notice the case is not a sufficient ground to extricate him from the responsibility which he owes to the client. Even though the client has got remedy by filing an appropriate application before the Court, but yet we cannot ignore the laxity which is exhibited by the Advocate in this case more especially when he is having more than 25 years of standing at the Bar. This type of attitude on the part of the advocates has to be deprecated. The counsel mr. Uday Kumar Joshi did not even appear before this Court though his name was printed in the cause list. This type of attitude on the part of the advocates has to be deprecated. The counsel mr. Uday Kumar Joshi did not even appear before this Court though his name was printed in the cause list. Though it is a fit case for reporting the matter to the Bar Council for taking action against the counsel for his deliberate and unexplained latches, we feel that mulcting the costs on the Advocate to be paid personally by him would meet the ends of justice. ( 7 ) ACCORDINGLY we direct Mr. Uday kumar Joshi, Advocate to pay a sum of rs. 10,000/- (Rupees ten thousand only) towards costs personally to the counsel for the respondents. However, the learned counsel Mr. B. Adinarayana Rao, appearing for respondents fairly submits that the amount of costs may be credited to Chief justice Relief Fund. Accordingly Mr. Uday kumar Joshi shall pay the said costs to the chief Justice Relief Fund within a period of three (03) weeks from to-day. ( 8 ) THE delay is accordingly condoned subject to the above terms. ( 9 ) POST after three (03) weeks for further orders.