Misdemeanor of Advocate - Party "not" to suffer
SHOULD a party suffer for the misdemeanor committed by the Advocate/Consultant?
Apparently, this question is as old as the profession itself.
The following observations of the Supreme Court hold a ray of hope for the unfortunate appellants who usually are at the receiving end for no fault of theirs.
Rafiq & Another v. Munshilal and Another AIR 1981 S.C. 1400 : 1981 (3) S.C.R. 509 .
"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."
It was also contended that - "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."
In the context of this plea, the Apex Court observed as follows:-
"It is not proper that an innocent litigant, after doing everything in his power to effectively participate in his proceedings by entrusting his case to the Advocate, should be made to suffer for the inaction, deliberate omission or misdemeanor of agent. For whatever reason the Advocate might have observed himself from the Court, the innocent litigant could not be allowed to suffer injustice for the fault of his Advocate . 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."
In R. v. Diggines ( 1985) 1 A.E.R. 1073 held that:-
"Where an applicant was denied a hearing by a Tribunal through no fault of the applicant or the Tribunal but because of the fault of the applicant's advisors, there was nevertheless a breach of the audi alteram partem rule which entitled the applicant to judicial review of the Tribunal's decision if it was adverse to the applicant".
This decision has been followed in R. v. Secretary of State Ex. p.A1 Mehdawi (1989) 1 A.I.R. 777. It was held:
"Since the respondent had been deprived of a hearing by the adjudicator solely because of his solicitor's negligence the decision-making process was fundamentally flawed by a breach of the rules of natural justice even though neither the respondent himself nor the adjudicator were at fault."