Bombay High Court: In the appeal against money decree challenging order dated 9-10-2019 dismissing the appeal due to non-appearance of appellant and Advocate through Legal Aid Scheme, and another order passed on 12-2-2020 by the Appellate Court dismissing application seeking restoration/readmission of the Appeal, M.S. Sonak, J. pressed on the duty of diligence of an advocate appointed under the Legal Aid Scheme while setting aside the said orders and directing restoration/readmission of appeal with costs.
An appeal was dismissed for default on 9-10-2019 because neither the appellant nor his advocate under the Legal Aid Scheme were present. However, it was stated in the application for setting aside the ex-parte order and readmission of appeal that the appellant could not appear in the Court due to ‘some personal hard-pressed difficulties’. In addition, it was stated that the advocate appearing through the free Legal Aid scheme could not be present due to some other engagement. The said appeal was dismissed on 12-2-2020.
While relying on Mysore Urban Development Authority v. S.S. Sarvesh, (2019) 5 SCC 144, the Court converted the instant petition from a writ petition into an appeal from order.
The Court perused the roznama which indicated lack of diligence on part of the appellant and his advocate under Legal Aid Scheme avoiding hearing on merits while pursuing the said appeal. The Court found the reason for this lack of diligence surprising when it was brought that the appellant and his advocate believed that the Presiding Officer would be biased just because the same Presiding Officer framed the issues in the Trial Court. As per records, the appellant had also applied for transfer on the same ground, but the transfer application was dismissed.
The Court observed through record that even the respondent and his advocate were not present on several occasions when the appeal was dismissed for default. The Court pressed on necessary diligence on part of the Advocate appointed under the Legal Aid Scheme, saying that the excuse of engagement in some other Court should not be put forth continuously. The Court said that advocate appointed under the Legal Aid Scheme should prioritize the matters, even if the payment schedule may not be commensurate to the fees possibly commanded in other matters, since it is the service which the legal community as well as the judiciary owes to the litigants unable to afford the services of an advocate.
The Court was cautious of litigants getting the impression that quality legal services are not provided if they are not in a position to afford the services of Advocates by paying substantial fees. It further pointed towards the enhanced level of responsibility on advocates appearing under the Legal Aid Scheme while adding that “Access to justice can never be denied to the litigant based upon their economic capacity.”
The Court suggested that Legal Aid Scheme advocates should not make unnecessary allegations of bias against Presiding Officers unless the situation warrants and facts support such a course but attend to the case to conduct it to the best of their ability. It further pointed at the inappropriateness of any advocate, much less of a lawyer appointed under Legal Aid Scheme to avoid appearing before a particular Presiding Officer or seeking adjournments based on a fanciful notion of bias.
The appellant extended an apology and requested for another chance to pursue his appeal while agreeing to pay costs of Rs 10,000 for readmission/restoration. The Court granted an additional opportunity, mainly due to the explanation for absence on 9-10-2019. The Court explained that
“The Supreme Court in several cases held that the party should not be made to suffer for the fault of his Advocate. However, the same does not mean that the opposite party should be made to suffer for the fault of the Advocate. The interests of all the parties must be balanced to the extent possible.”
The Court set aside the orders dated 9-10-2019 and 12-2-2020 subject to appellant paying the costs and directed the restoration/readmission of the said appeal.
[Pravin Naik v. Shrinivas Prabhu Dessai, 2023 SCC OnLine Bom 1049, decided on 4-5-2023]
Judgment by: Justice M.S. Sonak
Advocates who appeared in this case :
For Appellant: Advocate Swati Kamat Wagh;
For Respondent: Advocate Varun Bhandankar.