Dismissal for default for non-appearance of Advocate
Advocate has no right to remain absent from Court when case of his client comes up for hearing—He is duty bound to attend the case in Court or to make an alternative arrangement—Non-appearance in Court without ‘sufficient cause’ cannot be excused—Such absence is not only unfair to client of advocate but also unfair and discourteous to Court and can never be countenanced.
Even though counsel for appellant was not present, it would have been appropriate, had the High Court granted an opportunity to counsel for appellant to make his submissions by adjourning the matter—Orders passed by High Court dismissing second appeal as also dismissing recall application set aside—Matter remanded to High Court for fresh disposal in accordance with law after hearing the parties.
It is true that in the instant case, the appeal before the High Court was not an Appeal from Original Decree (First Appeal), but an Appeal from Appellate Decree (Second Appeal). But Rule 1 of Order XLII which deals with Appeals from Appellate Decrees (Second Appeals) lays down procedure and expressly states that the Rules of Order XLI shall apply so far as may be to Appeals from Appellate Decrees. Prima facie, therefore, it appears that once an appeal is admitted and is placed for hearing i.e. hearing on merits, it can be dismissed for default but cannot be decided on merits in absence of appellant or his advocate.