Non-appearance of lawyers as a ground for Adjournment: The forgotten case of the parties

Bar & Bench February 17 2019
senior advocates

Mahesh Menon

While it must have been a busy week for the legal community with a number of key judgments with significant questions of law being settled (or unsettled) by the Supreme Court, the judgment in Ram Siromani Tripathi & Ors. v. State of U.P & Ors. appears to have captured the attention of the legal community more than any other judgment.

The Court, in a one-page order, has ruled that ‘counsel being out of station’ is not a ground for granting an adjournment. The Court then went on to say that since there was a finding that ‘being out of station’ is not a valid ground for an adjournment “under no circumstances, [an] application for restoration shall be entertained”. Since this is an order issued by a Bench of three judges, it appears that the law on this issue stands settled (until a larger bench overrules this).

There are perhaps compelling policy reasons that this must indeed be the legal position [It appears that even in the past there has been instances of cases being dismissed for this reason not being restored on file and compelling arguments being raised for the need to accept this as a valid ground for an adjournment. See: PD Aiyangar, Absence of Lawyers from Court: Whether Sufficient Reason for Restoration of Suit or Setting Side Ex-Parte Decree, (1948) 61 Law Weekly 69.]

However, that is not the subject matter of this piece.  What I seek to argue is that (i) while making this order, the Court has lost sight of an important distinction - between a party and his lawyer; and that (ii) the latter part of the order, which dismisses an application for restoration even before it is filed, is a problematic one.

Rule 1 (1) of Order XVII of the Code of Civil Procedure (which deals with adjournments) states that the Court may grant an adjournment to “a party” if “sufficient cause” is shown. Sub-Rule (2) of that Rule then goes on to say that adjournments are to be granted only if the circumstances are beyond the control of the party who seeks one; that the pleader of a party being engaged in another court is not a ground for adjournment; and that illness of the pleader can be a reason for adjournment, if it can be shown that the party did not have adequate time to engage another pleader.

These provisions make it clear that “sufficient cause” is the key requirement and that "circumstances beyond the control" of the party is what should drive the interpretation of that expression. “Sufficient cause” appears in a number of other contexts (Such as Order 9 Rules 2,9 & 13 of the CPC and Section 5 of the Limitation Act) and it is settled law that “sufficient cause” is to be understood as something for which the party cannot be blamed [Mulla, Code Of Civil Procedure (16th Ed.), LexisNexis Butterworths: Volume II, pp. 2083-2091; BB Mitra, The Limitation Act (23rd Ed.), Eastern Law House, pp. 193-194.]

The word “party” is emphasized, as sufficient cause is to be shown by the party (and not his lawyer) and it is important to bear in mind that distinction. The Supreme Court has recognized this. Justice CK Thakker, writing for a Bench of two judges observed that

“...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 non-appearance of the advocate.”

Writing for a Bench of two judges, Justice DA Desai observed :

“…. 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 [Court] to enquire 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...

...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."

Thus, if the party is able to demonstrate that he had engaged a lawyer (who was expected to appear in court and argue the matter), and if the lawyer does not turn up in court, he has, (for the least) an arguable case of “sufficient cause” to have his appeal restored. The merits of that claim will, of course, have to be determined as and when that application comes up before the court.

This is why the second part of the order is problematic. As such, Order 9 Rule 9 (if not the provision itself, the principles behind which applies to the case at hand) enables a party to make an application to the court for the order of dismissal to be set aside if he can show sufficient cause, and absence of the lawyer that he had engaged can be sufficient cause for the party to seek a restoration. The statute clearly recognizes a right to make that application wherein he has the opportunity to demonstrate whether or not there was sufficient cause. 

Only when such an application is presented before the court can the question of sufficiency of cause cited be gone into. Till such time such an application is presented, the question of what is sufficient is only an academic one. By ruling that the application shall not even be entertained (apart from the confusion about who is not to entertain it – just the court or even the registry?) a valuable statutory right available to the party has been taken away.

There is also a loss of opportunity for the court to have laid down the law on this question (whether counsel being out of station is a ground to grant an adjournment) after affording both the parties to raise arguments on this count.

For now, it appears that the only remedy left for Ram Siromani Tripathi (and others) is to sue his lawyer for professional negligence. But then, what if his second lawyer also goes out of station? Meanwhile, lawyers and Senior Counsel may now start “falling ill” more often than going out of station.

The author is an Assistant Professor of Law at NUJS, Kolkata.

Read the order in Ram Siromani Tripathi v. State of UP below.

Ram Siromani order
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