An innocent litigant should not suffer for the default of his chosen Advocate: Allahabad High Court

Court No. 1 Case : SPECIAL APPEAL DEFECTIVE No. 4121 Appellant : Shiv Kumar Pandey Respondent : State Of U.P. Thru. Secy. Agriculture & Ors Counsel for Appellant : Shiv Shankar Singh Reshma Khan Counsel for Respondent : C.S.C. Dr. Surendra Singh Hon ble Ramesh Sinha J Hon ble Vivek Varma J Ramesh Sinha J.On due consideration since cause shown in the affidavit filed in support of an application for condonation of delay in filing the instant appeal is satisfactory hence the application for condonation of delayis allowed. Delay in filing the instant appeal is condoned The appellant Shiv Kumar Pandey and five others namely Prem Prakash Diwakar Dube Dilip Kumar Harihar Prasad Pandey Narendra Kumar Dube have approached this Court by filing Writ Petition No. 6685of 2003 : Prem Prakash and others Vs. State of U.P. and others stating therein that they were working on the post of Class IV on daily wage basis against the sanctioned and clear vacant posts at Narendra Dev University of Agriculture & Technology Kumarganj Faizabad but their services were not regularized. This writ petition was dismissed as having become infructuous by the learned Single Judge vide order dated 26.03.2014. Thereafter the appellant writ petitioner no.4 has filed an application for recall of the aforesaid order dated 26.03.2014 Heard Sri Shiv Shankar Singh learned Counsel for the appellant Sri Amitabh Kumar Rai learned Additional Chief Standing Counsel for the State respondent no.1 and Dr. Surendra Singh learned Counsel for the University respondent nos.2 to 5 Submission of the learned Counsel for the appellant writ petitioner no.4 is that the appellant writ petitioner no.4 has no knowledge about the order dated 26.03.2014 passed by the learned Single Judge dismissing the writ petition as having infructuous However when in the year 2021 the process of regularization has again been initiated in the University on 06.08.2021 the appellant contacted his Counsel to know the status of his writ petition but his counsel Sri Vivek Kumar Shukla did not give any satisfactory answer to him. He argued that as soon as the appellant writ petitioner no. 4 came to know the order dated 26.03.2014 he immediately filed an application for recall of the order dated 26.03.2014 along with an application for condonation of delay His submission is that the delay in filing the recall application is bona fide but the learned Single Judge has rejected both the applications vide order dated 26.03.2014 without looking to the fact that the relief sought by the writ petitioner is still survive for the purpose of regularization of services of the writ petitioner no.4 8) On the other hand learned Counsel for the respondents has opposed the submissions made by the learned Counsel for the appellant and has submitted that the application for recall of the order dated 26.04.2014 has been filed by the writ petitioner no.4 after more than six years therefore the learned Single Judge has rightly passed the impugned order dated 14.09.2021 dismissing the recall application as well as application for condonation of delay. There is no illegality or infirmity in the impugned order Having heard rival submissions advanced by the learned Counsel for the parties and going through the material brought on record we deem it appropriate to mention here that in Rafiq and Anr. v Munshilal and Anr. : AIR 1981 SC 140 and Smt. Lachi and Ors v. Director of Land Records and Ors. : AIR 1984 SC 41 while dealing with a similar issue held that a litigant cannot suffer for the fault of his counsel. The Hon ble Supreme Court in the former case observed as under : What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate.... The problem that agitates us is whether it is proper that a party should suffer for the inaction deliberate omission or misdemeanour of his agent.... We cannot be a party to an innocent party suffering injustice merely because his chosen advocate Similar view has been reiterated in Goswami Krishna Murarilal Sharma v. Dhan Prakash and Ors. :4 SCC 474 where the counsel had withdrawn his Vakalatnama without notice to his client. The Hon ble Supreme Court following it’s earlier judgment in Rafiqheld that the Court should not have proceeded to dismiss the appeal straightaway 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. Similar view has been reiterated in Tahil Ram Issardas Sadarangani and Ors. v. Ramchandra Issardas Sadarangani and Anr. : AIR 1993 SC 1182 and Malkiat Singh and Anr. v Joginder Singh and Ors.: AIR 1998 SC 258 observing that in case a litigant is neither negligent nor careless in prosecuting his case but his lawyer pleads no instruction the Court should issue notice to him to make an alternative arrangement. Such a course is required in the interest of justice and the Court may proceed from the stage the earlier counsel pleaded no instruction. If the litigant is not at fault he should not suffer for such a conduct of his counsel. In Sushila Narahari and Ors. v. Nand Kumari :5 SCC 529 the case was dismissed in default and an application for restoration was dismissed on the ground that there was a delay of 40 days in filing the application for restoration. The Hon ble Apex Court held that the delay due to advocate s dereliction in duty withdrawing his Vakalatnama without notice to his client warranted condonation. In Salil Dutta v. T.M. & McLtd. 1 SCR 794 the Apex Court after considering its earlier judgment in Rafiqand condone the delay in filing the recall application therein and the matter be remitted to the learned Single Judge for deciding the writ petition No. 66803in accordance with law on merit 15) Accordingly we allow the instant appeal. The judgment and order dated 14.09.2021 is hereby set aside. The delay in filing the application for recall of the order dated 26.03.2014 passed in writ petition No. 66803is hereby condoned. The order dated 26.04.2014 passed in writ petition No. 66803is recalled. The writ petition No. 6685of 2003 is restored to its original number. The matter is remitted with a request to the learned Single Judge to decide it in accordance with law expeditiously on merit without influenced by any observation made here in above It is clarified that we have not touched the merit of the case and the parties shall not seek any unnecessary adjournment before the learned Single Judge Vivek Varma J.) (Ramesh Sinha J Order Date : 26.10.2021

Summary: A litigant who has done everything in his power expected of him should not suffer for the inaction, deliberate, omission, or misdemeanor of his Advocate. Such an observation was made by the Hon’ble Allahabad High Court before Hon’ble Justice Ramesh Sinha in the matter of Shiv Kumar Pandey vs State Of U.P. Through Secy. Agriculture &amp; Ors [SPECIAL APPEAL DEFECTIVE No. – 417 of 2021] on 26.10.2021. 
The facts of the case involved a recall appeal with an appeal for condonation of delay which was rejected by the learned Single Judge on 14.09.2021. The contention of the applicant was that he was knew nothing about the order dated 26.03.2014 by which his writ petition was dismissed.

Having heard the counsels for both the parties the Hon’ble High Court took in reference t the case of Rafiq and Anr. v. Munshilal and Anr. : AIR 1981 SC 140 and Smt. Lachi and Ors. v. Director of Land Records and Ors. : AIR 1984 SC 41 in which while dealing with a similar issue the Hon’ble Supreme Court held that “What is the fault of the party who has done everything in his power expected of him, would suffer because of the default of his advocate…. The problem that agitates us is whether it is proper that a party should suffer for the inaction, deliberate omission, or misdemeanor of his agent…. We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted.” Additionally, The Hon’ble High Court also took into account the judgment of the Hon’ble Supreme Court in which it was held that “It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanor of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognized. Such an absolute rule would make the working of the system extremely difficult.”

Finally, the Hon’ble High Court allowed the instant appeal by stating that in the interest they deem it appropriate to allow the instant appeal and set aside the order date 14.09.2021.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 The facts of the case involved a recall appeal with an appeal for condonation of delay which was rejected by the learned Single Judge on 14.09.2021. The contention of the applicant was that he was knew nothing about the order dated 26.03.2014 by which his writ petition was dismissed. 
Having heard the counsels for both the parties the Hon’ble High Court took in reference t the case of Rafiq and Anr. v. Munshilal and Anr. : AIR 1981 SC 140 and Smt. Lachi and Ors. v. Director of Land Records and Ors. : AIR 1984 SC 41 in which while dealing with a similar issue the Hon’ble Supreme Court held that “What is the fault of the party who has done everything in his power expected of him, would suffer because of the default of his advocate…. The problem that agitates us is whether it is proper that a party should suffer for the inaction, deliberate omission, or misdemeanor of his agent…. We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted.” Additionally, The Hon’ble High Court also took into account the judgment of the Hon’ble Supreme Court in which it was held that “It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanor of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognized. Such an absolute rule would make the working of the system extremely difficult.”

Finally, the Hon’ble High Court allowed the instant appeal by stating that in the interest they deem it appropriate to allow the instant appeal and set aside the order date 14.09.2021.
Click Here To Read The Judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 Having heard the counsels for both the parties the Hon’ble High Court took in reference t the case of Rafiq and Anr. v. Munshilal and Anr. : AIR 1981 SC 140 and Smt. Lachi and Ors. v. Director of Land Records and Ors. : AIR 1984 SC 41 in which while dealing with a similar issue the Hon’ble Supreme Court held that “What is the fault of the party who has done everything in his power expected of him, would suffer because of the default of his advocate…. The problem that agitates us is whether it is proper that a party should suffer for the inaction, deliberate omission, or misdemeanor of his agent…. We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted.” Additionally, The Hon’ble High Court also took into account the judgment of the Hon’ble Supreme Court in which it was held that “It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanor of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognized. Such an absolute rule would make the working of the system extremely difficult.” 
Finally, the Hon’ble High Court allowed the instant appeal by stating that in the interest they deem it appropriate to allow the instant appeal and set aside the order date 14.09.2021.