Can't Make Party Suffer For Counsel's Non-Appearance Or Failure To Make Alternate Arrangement For Appearance: Rajasthan High Court

While hearing a writ petition, Rajasthan High Court upheld an order of the trial court that set aside an ex-parte decree against the respondents on the ground that the counsel of the respondents had underwent eye surgery and thus owing to his health conditions, he was not able to make an appearance before the court for the proceedings.

The bench of Justice Nupur Bhati held that merely because the counsel failed to make alternative arrangements for his appearance, the respondents could not be made to suffer for the same as that would not be in the interest of justice.

The Court referred to the Supreme Court case of Rafiq v Munshilal in which it was observed that by engaging a lawyer and having done everything in his/her power to effectively participate in the proceedings, a party could be rest assured and remain supremely confident that the lawyer would look after his/her interests and it was not part of the party's job to act as a watchdog of the lawyer.

“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. 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.”

The writ petition was filed by a petitioner challenging the order of the Additional District Judge wherein an application under Order IX Rule 13 filed by the respondents was allowed by the trial court.

A civil suit was filed by the petitioner for cancellation of a sale deed entered with the respondents on account of non-payment by the latter, and perpetual injunction. Ex-parte proceedings were initiated, and the trial court decreed the suit in the favour of the petitioner.

Respondents filed an application for setting aside the ex-parte decree on the grounds that their counsel had undergone surgery for cornea transplant and was taking eye treatment, hence he could not appear before the court for proceedings. This application was allowed by the trial court against which the petitioner filed the writ petition.

It was argued by the petitioner that it was the duty of the counsel to make alternative arrangements for his appearance making sure that the respondents were properly represented and only because he could not have travelled 70 Kms from his place of practice owing to his health issues, the ex-parte decree could not have been set aside by the trial court.

On the contrary, the respondents relied upon the Coordinate bench decision of the Rajasthan High Court, LRs of Late Smt. Keshar Devi & Ors. v Smt. Vajeera and argued that the case observed that litigant should not be made to suffer for counsel's negligence. And in the present case, the respondents were in a better position since there was no negligence on the counsel's part who could not appear owing to his health issues.

After hearing the arguments, the Court perused Order IX Rule 13, CPC and highlighted that the ex-parte decree could be set aside where the defendant satisfied the Court that he was prevented by any sufficient cause from appearing. The Court highlighted that the respondents tried to contact their counsel but could not get in touch with him due to his health issues. And as soon as the counsel came to know about the ex-parte decree, an appropriate remedy was availed.

In this light, the Court ruled that the respondents had shown sufficient cause that prevented them from appearing before the court, and rejected the argument put forth by the petitioner that it was counsel's duty to make alternative arrangement and held that,

“as far as the contention of the counsel appearing on behalf of the petitoner-plaintiff that it was the duty of the counsel to make alternative arrangements is concerned this court is of the view that merely because the counsel representing the respondents-defendants failed to make some alternative arrangement, the respondents-defendants cannot be made to suffer for the same as it would not be in the interest of the justice.”

In this background, it was ruled that the trial court had rightly allowed the application, and the writ petition was dismissed.

Title: Phoolaram v Bajranglal & Ors.

Citation: 2024 LiveLaw (Raj) 366

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