The Hon'ble Apex Court has discussed this aspect in the case of The

Secretary, Department of Horticulture, Chandigarh and Anr. Vs. Raghu Raj

[2009 (1) ALT 38 (SC)]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.[ Lakhi Narayan Sonowal v. State of Assam & ors]

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

Satish Jain vs Rent Tribunal Jaipur And Anr on 8 November, 2013

In Goswami Krishna Murarilal Sharma v. Dhan Prakash and Ors. (1981) 4
SCC 474, where the counsel had withdrawn his Vakalatnama without notice to his
client. The Hon'ble Supreme Court following its earlier judgment in Rafiq (supra),
held that the Court should not have proceeded to dismiss the appeal straight away
on the ground that the appellant was not present in person when his counsel had
withdrawn the Vakalatnama. At least a notice ought to have been given to such a
litigant to make an alternative arrangement or appear in person.

The Hon'ble Apex Court has discussed this aspect in the case of Rafiq and Anr. v.
Munshilal and Anr.[ [1981] 3 SCR 509] 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.[ Mahabir Prasad Singh v. Jacks Aviation
Pvt. Ltd. [1999(1) KLJ530]]

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."

Tripura High Court: A Single Judge Bench comprising of Arindam Lodh, J.

disposed of an appeal filed under Section 54 of Land Acquisition Act 1984 and
directed the appellant to file his claim before the LA Judge.

The appeal was filed against the decision of the LA Judge who dismissed the
reference filed by the appellant (land loser) as he was not able to file claim
statement despite repeated opportunities and six adjournments. Learned counsel for
the appellant submitted that the appellant could not take appropriate steps at the
appropriate time due to inadvertence of the previous counsel.

The High Court, after due consideration of the submissions made on behalf of the
petitioner, opined that a litigant should not suffer due to the conduct of the counsel.
A counsel is an officer of the Court. Placing reliance on the maxim “actus curiae
neminem gravabit”, which means that a litigant should not suffer due to act of the
court, The High Court held it just and proper to remand the matter back to the LA
Judge while directing the appellant to file claim statement. Lastly, it was observed
that legislature has enacted the Land Acquisition Act for the benefit of land losers
who are to be compensated in a just and fair manner. [Swapan Gope v. ONGC
Ltd., 2018 SCC OnLine Tri 102, dated 30-05-2018]

Kuldip Singh vs Krishan Kumar And Ors. on 25 January, 1973

It has been firmly established that a bona fide mistake committed by a counsel or
his clerk would constitute sufficient cause entitling a party to claim condensation
of delay provided that no negligence. nor inaction, nor want of bona fides is
imputable to a party. In the instant case, all that. the petitioner was required to do
was to obtain the certified copy within limitation and-hand it over to
his counsel for being filed in the case., This had been done by the petitioner who
obtained the certified copy an 24th July, 1972. and went to the office of
his counsel on the 25th July, 1972. where he rightly handed over the copy to the
clerk of the counsel, as it was not required of him to hand over the same personally
to the counsel as such routine types of things are handled by the clerk of a counsel.
The petitioner having done what was required of him, cannot be said to have
committed any negligence, nor want of bona fides or inaction can be imputed to
him. In the circumstances, what has to be determined is whether the act of Shri
Rattan Lal, clerk of the petitioner's counsel in mislaying the certified copy in
another brief due to rush of work as alleged by the said clerk in his affidavit, can
be said to be in the normal course of his duties. There can be no manner of doubt
that the receipt of the copy by Shri Rattan Lal from the petitioner was one of his
normal duties and the Disability of the said copy being mislaid in another brief due
to rush of work cannot be eliminated. If it is so, the petitioner cannot be made to
suffer for a bona fide mistake on the part of Shri Rattan Lal.

Moddus Media Pvt. Ltd. vs M/S. Scone Exhibition Pvt. Ltd. on 18 May, 2017

"The litigant owes a duty to be vigilant of his rights and is also expected to be
equally vigilant about the judicial proceedings pending in the court of law against
him or initiated at his instance" Delhi High Court recently rapped an Appellant-
company for their lack of vigilance in conducting a suit for recovery of money, and
their subsequent conduct in blaming the Counsel for the delay in filing an Appeal.

In Bani Singh and Ors. v. State of UP. and Ors. , a matter was referred to the
larger Bench of the Hon'ble Supreme Court as there had been conflict of opinion
between two Benches of the Hon'ble Supreme Court on the issue as what should be
the course of action in case a lawyer does not appear in the High Court at the stage
of hearing of a criminal appeal. The Court held that if the accused is in Jail and
cannot, on his own, come to Court, it will be advisable to adjourn the case and fix
another date to facilitate the appearance of the accused/appellant if his lawyer is
not present. If the lawyer is absent and the Court deems it appropriate to appoint a
lawyer at State expenses to assist it, there is nothing in the law to preclude it from
doing so. While interpreting the provisions of Sections 385 and 386 of the Code of
Criminal Procedure, and considering its earlier judgments in Ram Naresh Yadav v.
State of Bihar AIR 1987 SC 1500; and Shyam Deo Pandey v. State of Bihar AIR
1971 SC 1506, the Court held that the accused/appellant may be given a chance of
appearance if his lawyer is not present and in certain circumstances, a lawyer may
be appointed at State expenses to assist the Court. However, the case may also be
decided on merit in absence of the appellant as the higher Court can remedy the
situation if there has been a failure of justice. The Court observed as under:

The appellant and his lawyer can remain absent with impunity, not once, again and
again, the Court issues a warrant for the appellant's presence. A complaint to the
Bar Council against the lawyer for nonappearance cannot result in the progress of
the appeal. If another lawyer is appointed at State cost, he too, would need the
presence of the appellant for instructions and that would place the Court in the
same situation. Such a procedure can, therefore, prove cumbersome and can
promote indiscipline. Even if a case is decided on merits in the absence of
appellant, the higher Court can remedy the situation if there has been a failure of
justice.

Ram Sharan Singh S/O Laxmi Singh vs Union Of India (Uoi) Through ... on
17 September, 2007[https://indiankanoon.org/doc/1463105/]

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