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."
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.
1 2009 (1) ALT 38 (SC)
2 Lakhi Narayan Sonowal v. State of Assam & ors.
3  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.