Striking lawyers liable to pay litigation cost — SC

However, while restoring the case, the bench gave liberty to the litigant to realise half of the cost from the advocate. Justice Thomas said "it is unjust and inequitable to cause the party alone to suffer for the self-imposed dereliction of his advocate." "We may further add that the litigant who suffers entirely on account of his advocates non-appearance in court, also has the remedy to sue the advocate for damages….," the bench said.

Agreeing with Justice Thomas entirely, Justice Sethi said "the litigant suffering costs has a right to be compensated by his defaulting counsel for the costs paid." Echoing similar views, Justice Thomas said "when the court mulcts the party with costs for failure of his advocate to appear, we may make it clear that the same court has power to permit the party to realise the costs from the advocate concerned."

However, he made it clear that such direction could be passed only after affording an opportunity to the advocate and said if he has any justifiable cause, the court could certainly absolve him from such a liability. "But the advocate can not get absolved merely on the ground that he did not attend the court as he or his association was on strike," Justice Thomas said.

"If any advocate claims that his right to strike must be without any loss to him but loss must only be for his innocent client, such a claim is repugnant to any principle of fair-play and cannons of ethics," he said.

The court said the advocate must be prepared to bear at least the pecuniary loss suffered by the litigant client who had entrusted his brief to the advocate with all confidence that his cause would be safe in the hands of that advocate.

Justice Sethi expressed his unhappiness over the fact that the courts in the country had been contributory to the continuance of the strikes on account of their action of sympathising with the bar and failing to discharge their legal obligations "obviously under the threat of public frenzy and harassment by the striking advocates".

Disagreeing with Justice Thomas that courts had not been sympathising with the bar during the strikes and boycotts, Justice Sethi said some courts might have conducted the cases even during the strikes or boycott periods or adjourned due to helplessness of being not in a position to conduct the case without the assistance of advocates.

"But majority of the courts in the country have been impliedly sympathisers by not rising to the occasion by taking positive stand for the preservation of the high traditions of law and for continued restoration of the confidence of the common man in the institution of judiciary," he said. Justice Sethi said it was not too late even now for the courts in the country to rise from the slumber and perform their duties without fear or favour particulalry after the judgement of this court in Mahabir Singh’s case. In Mahabir Singh’s case, the apex court had held that "judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott callfrom the bar, or tactics of filibuster adopted by any member thereof."