Advocates Should Prioritise Legal Aid Matters, Litigants Can't Be Deprived Quality Legal Services Due To Economic Capacity: Bombay High Court

Justice Mahesh Sonak sitting at Goa remarked that the legal community and the judiciary owe this service to litigants who cannot afford an advocate.

“Priorities have to be given by the Advocate to the matters under the Legal Aid Scheme, even though the payment schedule for such matters may not be commensurate to the fees such an Advocate would possibly command in other matters. Ultimately, this is the service that not only the legal community but also the judiciary owes to the litigating member of the public who may not be able to afford the services of an Advocate”, the court held.

The court was dealing with an appeal against order of Ad-hoc District Judge, Margao dismissing a Regular Civil Appeal. Neither Naik nor his advocate was present and the civil appeal was dismissed due to non-appearance on October 9, 2019.

In the application for readmission of the appeal, Naik explained that he could not appear due to personal difficulties. Further, his advocate had some other engagement and hence could not appear in the court when the appeal was dismissed. However, the judge did not restore the appeal. Thus, Naik approached the High Court seeking restoration of his civil appeal.

From the record, the court noted that Naik’s advocate, appointed under the Legal Aid Scheme, was not diligent in pursuing the appeal. Naik and his advocate believed that the Judge would be biased as the same Judge framed the issues in the trial court. Therefore, they were avoiding a hearing on merits, the court noted. Naik also sought transfer of the case on this ground but was denied.

When a matter is accepted under the legal aid scheme, the appointed advocate must attend it diligently, the court said. The court added that the advocate should not continuously give the excuse of being engaged in some other court.

Litigants should not get the impression that they do not receive quality legal services merely because they cannot pay substantial fees of the advocate, the court said adding that access to justice can never be denied based on the economic capacity.

The court further stated that the advocates appointed under the Legal Aid Scheme should not unnecessarily accuse the judge of bias unless supported by the facts. “…it would not be proper for any lawyer, much less the lawyer appointed under the Legal Aid Scheme to avoid appearing before a particular Presiding Officer or keep seeking adjournments based upon some fanciful notion entertained by the litigant about the bias of the Presiding Officer”, the court held.

Naik apologized and stated that he will not make unbiased allegations against the judge. He expressed willingness to pay Rs. 10,000/- as costs for re-admission or restoration of his appeal.

The court noted that Naik did offer some explanation for his absence but it was rejected primarily because of the lack of past diligence. The court opined that Naik deserves an additional opportunity but it will cause some prejudice to the respondent. Therefore, the court awarded costs against Naik and directed the appeal court to dispose of the appeal expeditiously to minimize the prejudice caused to the respondent.

“…the party should not be made to suffer for the fault of his Advocate. However, the same does not mean that the opposite party should be made to suffer for the fault of the Advocate. The interest of all the parties must be balanced to the extent possible”, the court said.

Though past diligence is relevant, it could not be the chief ground to not even consider the appellant’s explanation for absence, the court held.

Therefore, the court directed Naik to the offer costs on Rs. 10,000/- within 4 weeks and restored his Regular Civil Appeal. The court also directed the parties to appear before the appeal court on June 19, 2023 at 2:30 p.m.

The court held that if the appellant does not deposit the costs, then the appeal will be deemed to have been dismissed.

Case no. – Appeal From Order No.12 of 2023

Case Title – Pravin Naik v. Shrinivas Prabhu Dessai

Citation: 2023 LiveLaw (Bom) 246