Madhya Pradesh H.C : This is an application for restoration of Miscellaneous Civil Case No. 263 of 1985, which has been dismissed for default on March 11st 1987 and of Miscellaneous Petition No. 191 of 1981 dismissed for default.

High Court Of Madhya Pradesh : Indore Bench

Mahaveer Prasad Jain vs. CIT

Sections 251, 254(1), 256, 288

G.G. Sohani & K.L. Shrivastava, JJ.

M.C.C. No. 95 of 1987

8th January, 1988

Counsel Appeared

M.S. Rege, for the Assessee : R.C. Mukati, for the Revenue

BY THE COURT:

This is an application for restoration of Miscellaneous Civil Case No. 263 of 1985, which has been dismissed for default on March 11st 1987 and of Miscellaneous Petition No. 191 of 1981 dismissed for default.

It was not disputed before us that a counsel was appearing for the petitioner in Miscellaneous Civil Case No. 263 of 1985 and in Miscellaneous Petition No. 191 of 1981 and that counsel failed to appear when the case was called on for hearing. Learned counsel for the applicant referred to the decision of the Supreme Court in Rafiq vs. Munshilal, AIR 1981 SC 1400, and contended that the application be allowed. The application was vehemently opposed by Shri Mukati, learned counsel for the non-applicants, who contended that no sufficient cause was made out for restoring Miscellaneous Civil Case No. 263 of 1985 and Miscellaneous Petition No. 191 of 1981. Having heard learned counsel for the parties, we have come to the conclusion that the application deserves to be allowed. The applicant had engaged a counsel and was, therefore, justified in presuming that counsel would attend to the case. The applicant cannot be made to suffer for the negligence of counsel. We may usefully refer to the following observations of the Supreme Court in Rafiq vs. Munshilal (supra) : “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. May be we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimaturs on the alleged practice by dismissing this matter which may discourage 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 power and expected of him, has to 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 who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission or misdemeanor of his agent. The answer obviously is in the negative. May be 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 original number in the High Court and be disposed of according to law.”

4. Following the aforesaid decision this application is allowed. Miscellaneous Petition No. 191 of 1981 is restored. As the petition can now be disposed of only by Central Administrative Tribunal, the registry is directed to arrange to send the record of the case to the Tribunal.

No order as to costs.

[Citation : 172 ITR 331]

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