# RAFIQ & ANR v. MUNSHILAL & ANR

- **Citation:** [1981] 3 S.C.R. 509
- **Court:** Supreme Court of India
- **Decided:** 1981-04-16
- **Case number:** Civil Appeal No. 1415 of 1981
- **Bench:** D.A. Desai, Baharul Islam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rafiq-anr-v-munshilal-anr-8077
- **Pages:** 3

## Headnote

Procedure-Litigant entrusted appeal to an advocate-Advocate failed to
appear in Court at hearing-Appeal dismissed-Litigant, whether entitled to have
the appeal restored for hearing.
Costs-Appeal dismissed on account of absence of advocate at hearingCosts, if could be recovered from Advocate.
On knowing that the High Court had dismissed his appeal on the ground
that his Advocate was not present in the Court when the matter was taken up
for hearing the appellant moved an application for the recall of the order
dismissing the appeal and for permission to participate in the hearing of the
appeal. The High Court rejected this application stating that no satisfactory
explanation had been furnished by the Advocate for his slackness in filing the
affidavit for nearly 15 days after it was drafted.
On the question whether the litigant is entitled to have his case reheard
by the High Court.
A
B
c
D
HELD : It is not proper that an innocent litigant, after doing everything
E
in his power to effectively participate in his proceedings by entrusting his case
to the Advocate, should be made to suffer for the inaction, deliberate omission
or misdemeanour of his agent. For whatever reason the Advocate might have
absented himself from the Court, the innocent litigant could not be allowed to
suffer injustice for the fault of his Advocate. [511 Bl
The respondent's costs should be recovered from the Advocate who
F
absented himself from Court. [511 D]
[The Court directed the appeal to be restored to its original position
in the High Court and heard.]

## Text

509
RAFIQ & ANR.
v.
MUNSHILAL & ANR.
April 16, 1981
[D.A. DESAI AND BAHARUL ISLAM, JJ.]
Procedure-Litigant entrusted appeal to an advocate-Advocate failed to
appear in Court at hearing-Appeal dismissed-Litigant, whether entitled to have
the appeal restored for hearing.
Costs-Appeal dismissed on account of absence of advocate at hearingCosts, if could be recovered from Advocate.
On knowing that the High Court had dismissed his appeal on the ground
that his Advocate was not present in the Court when the matter was taken up
for hearing the appellant moved an application for the recall of the order
dismissing the appeal and for permission to participate in the hearing of the
appeal. The High Court rejected this application stating that no satisfactory
explanation had been furnished by the Advocate for his slackness in filing the
affidavit for nearly 15 days after it was drafted.
On the question whether the litigant is entitled to have his case reheard
by the High Court.
A
B
c
D
HELD : It is not proper that an innocent litigant, after doing everything
E
in his power to effectively participate in his proceedings by entrusting his case
to the Advocate, should be made to suffer for the inaction, deliberate omission
or misdemeanour of his agent. For whatever reason the Advocate might have
absented himself from the Court, the innocent litigant could not be allowed to
suffer injustice for the fault of his Advocate. [511 Bl
The respondent's costs should be recovered from the Advocate who
F
absented himself from Court. [511 D]
[The Court directed the appeal to be restored to its original position
in the High Court and heard.]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1415 of
1981.
Appeal by special leave from the judgment and order dated the
7th January 1981 of the Allahabad High Court in Civil Misc.
Application No.
113 of 1981 in Second Appeal No.
1484 of
1973.
O.P. Rana, M. Qamaruddin and Mrs. M. Qamaruddin for the
Appellants.
G
H
•
A
B
c
D
E
F
G
•
H
510
SUPREME COURT REPORTS
A.K. Sanghi for Respondent No. I.
The Judgment of the Court was delivere,d by
DESAI, J. Special leave granted.
[1981] 3 S.C.R.
We have heard
Mr. 0. 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.
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. Maybe he is better
informed on 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 ~iscourage 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
r
RAFIQ v. MUNSHILAL (Desui, J.)
511
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 wh::i would suffer would not be the lawyer who
did not appear but the party whose interest he represented. The
problem that agitates us is w:1ether it is prop~r 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. 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 orginal 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 c::>sts 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.
A
B
c
D
Appeal allowed to the extent indicated with costs in the manner
E
indicated.
P.B.R.
Appeal allowed.