India: Effects Of Non-Appearance Of The Counsel

Last Updated: 10 March 2017
Article by Ramya Verma

Most Read Contributor in India, July 2017

Order IX of the Code of Civil Procedure deals with the Non-appearance of the Parties and such default may have the effect of the dismissal of the suit or ex-parte decision by the Courts. Now, the law does not require the personal presence of the Parties unless especially required by the Court. The appearance of the pleader is a deemed presence of the litigant. However, there are instances wherein the cases are dismissed for the default caused due to the negligence of the Counsel.

The disturbing feature of our present adversary legal system where the parties generally appearing through Advocates, the obligation of the Parties is to select the 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. The party may, on the other hand, be a litigant who engages an advocate with the belief that his case will be duly represented. 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 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 cannot be decided whether such non-appearance is the cause of the negligence of the Advocate or the negligence of a litigant himself. However, every time, it becomes a responsibility of the Court to allow such applications for restoration or appeals only for the possibility of justice being denied to an innocent litigant.

The Hon'ble Apex Court has discussed this aspect in the case of The Secretary, Department of Horticulture, Chandigarh and Anr. Vs. Raghu Raj1 and held that, "Even if there is default on the part of advocate in not appearing at the time of hearing, Appellant shall not suffer injustice."

It was pleaded by one of the counsels that the appellant had engaged a counsel and were under the impression that the lawyer will take care of the case and appear when the appeal will be called out for hearing. It was observed that the counsel is duty bound to attend the case in Court or to make an alternative arrangement. Non-appearance in Court without `sufficient cause' cannot be excused. Such absence is not only unfair to the client of the advocate but also unfair and disCourteous to the Court and can never be countenanced. At the same time, however, when a party engages an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party should not suffer on account of default or nonappearance of the advocate.

It is true that no Court is obliged to adjourn a case because of the difficulty of a Counsel. In fact, it is the solemn duty of every Court to proceed with judicial business fixed for the day yet in an appropriate case where no fault lies at the door of litigant, Court should not be in a hurry to dismiss the case in default or for non-prosecution on account of absence of his counsel. The Court must be considerate while dealing with an application for recall of dismissal or ex-parte order if a justifiable cause for non-appearance of counsel was made out, the simple reason being; ultimately, it would be the litigant who will have to suffer the consequences of the Order.2

Law always requires the test of reasonableness. Meaning thereby, the cause of non-appearance of the Advocate must be justifiable. It is the professional obligation of an Advocate to appear on behalf of his Client or make such alternate arrangements as necessary. But, if there is no sufficient reason and the Advocate by choice, omits to appear for a particular matter or before a particular bench, then is the innocent litigant to suffer injustice?

The Hon'ble Apex Court has discussed this aspect in the case of Rafiq and Anr. v. Munshilal and Anr.3 it was submitted by one of the counsels that a practice had grown up in the Hon'ble High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular bench. It was observed, If any counsel does not want to appear in a particular Court, that too for justifiable reasons, professional decorum and etiquette require him to give up his engagement in that Court so that the party can engage another counsel. But, retaining the brief of his client and at the same time abstaining from appearing in that Court, that too, not on any particular day on account of some personal inconvenience of the counsel but as a permanent feature, is unprofessional as also unbecoming of the status of an advocate.4

This practice can only be discouraged by rejecting such applications for restoration or appeals, as the case may be. However, the end result of every case should be justice. The Party who has shown faith in the judicial system must not be disappointed because of the default of his duly engaged Advocate. The Advocates Act and other rules of the Bar Council require an Advocate to argue the case of his Client in the best possible manner and keeping uphighest professional standards.

The Court observed, "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 such appeals/ applications are rejected, 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 before 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. Maybe, that the learned advocate absented himself deliberately or intentionally. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted."

Conclusion :

This scenario creates a very critical position in the justice delivery system. Where, on one hand, the Honble Court is duty bound to dismiss the proceedings if sufficient reasons are not established which has become the need of time owing to the large number of cases pending at all stages, on the other hand the Court cannot deviate from the very own objective of the judicial system, i.e. Justice for all. The Court by taking a strict or technical view of the procedures prescribed cannot cause prejudice to the innocent party who has faith not only on the Advocate he has engaged but the ultimate faith in Judiciary that the Court, in no circumstances would cause anything to affect the rights of the Parties. This kind of situation necessarily calls for a new practice duly prescribed by law so that neither the innocent Party suffers due to the default or negligence of an Advocate but the Courts can adopt the procedures meant for doing substantial justice keeping in mind the Right to speedy trial in every case, be it Civil or Criminal so that the faith in the Indian Judicial system remains alive.

Footnotes

1 2009 (1) ALT 38 (SC)

2 Lakhi Narayan Sonowal v. State of Assam & ors.

3 [1981] 3 SCR 509

4 Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. [1999(1) KLJ530]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.