Manjit Kaur etc. vs Deol Bus Service Ltd. etc.

S.S. Sodhi, J.—Counsel''s duty towards the party engaging him is the point in issue here.

On may 21, 1980, an appeal was filed by the widow and children of Major Singh deceased who had been killed in a motor accident claiming enhanced compensation. This appeal was dismissed in default on Oct. 31, 1984. It was about three years thereafter, on Oct. 6, 1987 that an application was filed seeking rehearing of appeal on merits, accompanied by an application u/s 5 of the Limitation Act, asking for condonation of the delay in the filing of this application.

The unrebutted averments of the petitioner-Manjit Kaur showed that after engaging counsel for the appeal and its admission to hearing, she went home but her counsel never, thereafter, communicated with her or informed her of the subsequent developments in the case and it is only when she came to Chandigarh on Oct. 5, 1987 and enquired from her counsel that she came to know that her appeal had been dismissed in default in Oct., 1984.

In their affidavits, neither of the two counsel (whose names are being deliberately withheld) through whom the appeal had been filed, stated that they had never communicated anything about the appeal to Manjit Kaur. Rather, it was said that they were not aware of the case having been dismissed in default, whereas, according to the opposite party, the case remained on the daily lists for two weeks before it was dismissed in default.

Such being the situation, notice was ordered to issue both the counsel for the appellant-Manjit Kaur to show cause, why :--

(1) adverse comments be not made with regard to their conduct as counsel in this matter ?

(2) the matter be not reported, by this Court to the Bar Council of Punjab and Haryana, and;

(3) substantial costs be not imposed upon them for their acts and omissions in this matter ?

An unconditional apology is what was putforth in reply by both the counsel. The senior counsel squarely accepted full responsibility for the dismissal of the case in default though he also mentioned his ill-health due to kidney ailment as a contributory factor for his fault. He, however, assured that this would never happen again. Similarly, the Junior Counsel too expressed regret in his affidavit and assured that such lapse would not recur in future.

In view of the clear and unconditional aplogy offered by the counsel concerned and taking into account also the serious ailments that the senior counsel is now said to be suffering from, a warning to be careful in future would suffice, but with the further direction to them to return the fee received from the petitioner Manjit Kaur, who on account of their lapse was constrained to engage another counsel and also to compensate her for the amount, namely; Rs. 1,000/- awarded against her as costs for the rehearing of the appeal. Both counsel very fairly and unhesitatingly agreed to return the fee and also to pay this sum of Rs. 1,000/-to Manjit Kaur.

Before parting with this matter, a comment must be recorded on the judgment of the Supreme Court in Rafiq and Another Vs. Munshilal and Another, , where the matter involved was with regard to an appeal filed by the appellant which was disposed of in the absence of his counsel, as also the rejection of the application for recall of the order of dismissal. In dealing with this matter, the Court observed : --

"The disturbing feature of the case is that 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 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 watch-dog of the advocate that the latter appears in the matter when it is listed. It is no part of his job."

The Court went on further to observe : --

"..... The problem that agitates 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 ....."

It was accordingly held that they could not be a party to an innocent party suffering injustice merely because his chosen advocate defaulted.

The point to be made is that this judgment can by no means, be constructed as a licence to counsel to allow the interests of the party engaging him to be prejudicially affected by his inaction, deliberate omission of misdemeanour. Indeed, there is a duty of care that a counsel owes to his party which clearly extends to ensuring that the interests of his party are hot in any manner hurt by his doing what should not have been done or omitting to do, what is required and necessary in the discharge of his duty as counsel. Breach of such duty cannot, but lay counsel open to a charge of negligence which is actionable tort, as held by the Supreme Court in M. Veerappa Vs. Evelyn Sequeira and Others, , where after noticing the preamble to the Legal Practitioners Fee Act, 1926 and the provisions of Sections 2 to 5 thereof, as also the definition of "Legal practitioner" under the Legal Practitioners Act, 1879, the Court observed : --

"A reading of these sections would go to show that any legal practitioner who acts or agrees to act for any person may settle with the said person the terms of his engagement and the fee to be paid for his professional services; that the legal practitioner will be entitled under law to institute and maintain legal proceedings against his client for the recovery of any fee due to him under the agreement or as per the costs taxed by the Court where there has been no presettlement of the fee; and that no legal practitioner who has acted or agreed to act shall merely by reason of his status as a legal practitioner be exempt from liability to be sued in respect of any loss or injury due to any any negligence in the conduct of his professional duties.

Therefore, a legal practitioner cannot claim exemption from liability to be sued in respect of any loss or injury suffered by the client due to any negligence in the conduct of his professional duties merely by reason of his being a legal practitioner....."

The law is thus well-settled that if counsel, by his acts or omission causes the interest of the party engaging him, in any legal proceedings to be prejudicially affected, he does so at his peril.