Supreme Court faults lawyers who absent themselves and lose suits.
Once a litigant engages a lawyer, his next worry is whether the man in black will appear in the court and present the case well. One is not talking about abnormal situations like when there is a flash strike of lawyers following a clash with the police. Or some state bar associations prohibiting its members from defending alleged terrorists of a certain hue. Even in normal times, the lawyer’s presence cannot be assured. A successful lawyer may accept more briefs than he can handle and run from one courtroom to another. On admission days in the Supreme Court, one should be careful not to be run over by a speeding corporate lawyer and his flock in the narrow corridors.
Some lawyers may skip appearance in cases which are less paying. Yet others disappear when they don’t get advance payment though the rules say that counsel must appear even if the client has not yet paid the fees. There is another breed which is untraceable when a particular judge is on the bench. Another sort never returns to the court once they get a favourable interim order. When a senior counsel rattled on about the reasons why lawyers bunk, the Supreme Court remarked in one judgment, “Maybe true, but ignorance in this behalf is our bliss”. What would the orphaned clients do in such situations? The Supreme Court has ruled last month that the clients should not suffer for the absence of counsel.
This case started some 30 years ago and culminated in a judgment which asserts the rights of litigants when lawyers ditch them. The department of horticulture, Chandigarh, dismissed a gardener, Raghu Raj, in 1977. The tenacity with which he fought the case up to the Supreme Court spending his best years of life is matched only by the negligence of the lawyers of the department who repeatedly failed to defend it.
Speaking in favour of the deserted litigant, the Supreme Court said: “It cannot be gainsaid that an advocate has no right to remain absent from the court when the case comes up for hearing. He is duty-bound to attend the case or make an alternative arrangement. Non-appearance without sufficient cause cannot be excused. Such absence is not only unfair to the client but also unfair and discourteous to the court and can never be countenanced.”
When the lawyer does not appear, some high courts and lower courts dismiss the case altogether. Deprecating this practice, the Supreme Court in a 1981 case (Rafiq vs Minshilal) said: “It is not proper that the party should suffer for the inaction, deliberate omission or misdemeanour of his agent, the lawyer.” In view of this tendency of the courts, the Civil Procedure Code was amended to clarify that in such instances, the cases may be dismissed ‘for default’, but not ‘on merits’. This is some protection for the litigant because if the suit is dismissed for default, it can be revived. If it is dismissed on merits, it cannot be restored before the same court. However, some courts, as in the Chandigarh gardener’s case, still dismiss the suit on merits citing the continued absence of the lawyers.
Therefore, this clarification from the Supreme Court was long overdue. The remedy in the Civil Procedure Code and the relief granted by the Supreme Court do not totally tackle the problem of absenteeism. Lawyers know very well that the courts would not dismiss the case on merits — but only for default — and therefore are emboldened to absent themselves. The court may make some harsh observations against the counsel involved but since it has to do justice and hear the litigant in any case, the lawyers can act with impunity. The worst that can happen is an order of compensation to the opposite party for travelling to the court in vain. The gardener was ordered to be paid Rs 20,000 for commuting to the courts in the past decades, but that does not hurt the imprudent lawyer a bit.
The bar councils disregard this problem faced by the litigants, though it is a matter of professional indiscipline. When a lawyer reported sick in one Delhi court last week and was found on his legs in another, it was the court which penalised him. The councils are equivocal even when the bar goes on illegal strikes or prohibits the members from defending persons accused of grave charges.
Perhaps the only speedy remedy available for a disgruntled litigant is to approach a consumer forum alleging deficiency in service and unfair trade practice. But then it would be as difficult to find a lawyer to argue against another, as it would be to find a doctor to be witness against another in a medical negligence case.