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The judgment in Ram Siromani Tripathi & Ors. v. State of U.P & Ors. appears to have caught the attention of the legal community more than any other judgment passed by the Supreme Court last week with significant questions of law being settled (or unsettled). In a one-page order, the Court ruled that the counsel being out of station is not a ground for granting an adjournment and under no circumstances, an application for restoration shall be entertained. Since it is an order issued unanimously by a bench of three judges, it seems that the law on this subject is settled, provided that a larger bench overrules this decision. Even in the past there have been instances of dismissed cases on this ground not being restored on file and convincing arguments raised for the need to accept it as a valid ground for an adjournment. It is argued that while issuing this order, the Court has lost sight of an important distinction between a party and his lawyer and the last part of the order, which rejects an application for restoration even before it is filed, is problematic.
Rule 1 (1) of Order XVII of the Code of Civil Procedure (dealing with adjournments) states that the Court may grant an adjournment to “a party” if “sufficient cause” is shown. Sub-Rule (2) of that Rule says that adjournments are to be granted only if the circumstances are beyond the control of the party seeking one; that the party’s pleader is being engaged in another court is not a ground for adjournment; and that illness of the pleader can be a reason for adjournment, if it can be shown that the party did not have enough time to hire another pleader. A sufficient cause is the fundamental requirement and that the "circumstances beyond the control" of the party should guide the interpretation of that expression. The term "sufficient cause" appears in several other contexts (such as Order 9, Rules 2, 9 and 13 of the CPC and Section 5 of the Limitation Act) and it is settled law that “sufficient cause” is to be understood as something for which one cannot blame the party. The SC has recognized that the distinction between party and lawyer is important since sufficient cause must be shown by the party (and not by his lawyer). Justice CK Thakker observed that when a party engages an advocate, the party must not suffer on account of default or non-appearance of the advocate.
If the party can prove in spite of engaging a lawyer, the lawyer does not appear, he has a case of “sufficient cause” and can make an application under Order 9 Rule 9 to restore his appeal by making an application to the court for setting aside the order of dismissal. It seems that the only remedy left for Ram Siromani Tripathi (and others) is to sue his lawyer for professional negligence. Meanwhile, lawyers may start taking the ground of “falling ill” more often now rather than going out of station.
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