Bhagirath Prasad Singh v. Patna Municipal Corporation

Patna High Court LPA No.329 of 2013 (3) dt.20-06-2013 2 address and assist the Court in absence of his brief. The submission is that appropriately he should have been granted a short accommodation to assist the Court properly. The fact that he may have appeared prudently to seek adjournment in the circumstances does not amount to an opportunity for fair hearing. Learned Counsel for Respondent no. 4 opposing the appeal submits that the very opening lines of the order state that the appellant had been heard. No prejudice can therefore be said to have been caused to the appellant. In any event no positive direction of any nature has been given to the prejudice of the appellant. We have considered the submissions on behalf of the parties. The assertion in paragraph 22 and 23 of the memo of appeal which are statements of facts regarding non publication of Counsel’s name coupled with the extract of the cause list, and the prayer for adjournment made before the Court have not been denied by Respondent no. 4 on oath by way of affidavit and neither has it been disputed during course of submissions before us. We do not consider it necessary to take note of the merits of the case or discussion with respect to the same in view of the nature of the order that we propose to pass. It is trite law that justice must not only be done but must appear to be done. The right to a proper opportunity for defending and contesting a case is an integral part of the same. It is a settled judicial view by precedents that if name of the Counsel is not printed in the cause list he is not to be blamed for the same and for that by itself prejudices the parties concerned from effectively defending and contesting the case. Judicial precedents required that in such circumstances opportunity has to be given by way of adjournment. Patna High Court LPA No.329 of 2013 (3) dt.20-06-2013 3 In (1972) 2 SCC 273 (Swarth Mahto v. Dharmdeo Narain Singh) it has been observed at paragraph 4 as follows:- “4. ……….. If the name of the advocate who appears in the case is not shown, there would be good reason to think that he had no notice of the case being posted for hearing. Therefore, when an application is later made by the parties who were not heard, it would be an exercise of sound discretion if an opportunity is given to the party who is not heard.” In (1998) 5 SCC 123 (G. Raj Mallaiah v. State of A.P.) it has been observed at paragraph 5 as follows:- “5. ………… However, when the learned counsel could not appear before the court not on account of the fault either of the appellant or the advocates themselves, but on account of mistake committed by the Registry of the High Court in not showing the names of the counsel in the cause list properly and the counsel not being aware of the listing of the case before the court in such a matter we do not think that the principle should be extended.” Similar view has been expressed in (2000) 10 SCC 345 (Lajwanti v. Union of India ) observing at paragraph 3 as follows:-

#3. The name of the appellant's advocate not having been shown in the cause-list for the relevant day against the writ petition concerned, there was sufficient cause, in our view, to recall the order and hear the appellant's counsel on the writ petition. This is the order that we propose to pass…….” In (2001) 10 SCC 301 (Hari Shanker v. Gobind Parshad Jagdish Parshad) it has likewise been observed at paragraphs 6 & 7 as follows;- “6. The short question that arises for consideration is: whether not showing the name of the advocate for the appellant herein in the “cause list” is a sufficient cause to set aside the ex parte decree under Order 9 Rule 13 of the Civil Procedure Code. 7. It is a general practice in the High Courts that the advocates identify their case in the “cause list” of the day. An advocate's non-appearance in a case when the case is taken up on the ground that his name was not shown in the Patna High Court LPA No.329 of 2013 (3) dt.20-06-2013 4 “cause list” is indeed a sufficient cause. However, the High Court remarked that the advocate did little more than filing the vakalatnama and that the appellant was negligent and cavalier in prosecuting his case. In our view those remarks would be relevant in a case where in spite of showing the name in the “cause list” the advocate did not appear. In a case where the name has not been shown in the “cause list” the petitioner or his counsel cannot be found fault with for non-appearance. In this view of the matter, we set aside the order under challenge and restore the second appeal to the file of the High Court, to be heard and decided afresh, in accordance with law.” We therefore find it difficult to approve the order under appeal for procedural reasons and set aside the same. We may not be misunderstood to have said or expressed any opinion on the merits of the matter. The Registry shall ensure that the name of the Counsel for the appellant is appropriately published in the cause list. The writ application is restored for fresh consideration. The appeal is allowed. Snkumar/- (Navin Sinha, J) (Vikash Jain, J)