• Case dismissed for default

The original suit (2009) filed by me for permanent injunction and declaration in Munsiff court was dismissed for default JAN 2015 due to the absence of my advocate.IA filed in response to that was also dismissed on June 2015. Again IA filed against that order was dismissed on default ( FEB 2016 ) due the non-appearance of the advocate on a hartal day.Again IA was filed which was dismissed on AUG 2018. In response to that, an appeal (CMA) was filed in the additional district court. The judgment directs to restore the petition with a cost of Rs 15000/- to respondents. ( appeal allowed with cost). The judge has relied upon the judgment of 2017(1)KHC 48 ( sajitha kumari Vs Prajith, High court of Kerala) 
Now comes the question who has to pay the cost? Whether the cost should be paid by the plaintiff or by the advocate who absented himself in the court? 
As per Hon’ble Supreme Court judgment (Rafiq & Anr vs Munshilal & Anr on 16 April 1981) in a similar case the petitioner cannot be blamed for the absence of his advocate and trial court should restore the case to original file. In that judgment,the apex court directs the respondent to recover the cost from the advocate who absented himself from the court. In another case where Gauhati High Court (Nirmal Das Gupta vs Prasanta Das Gupta And Ors. on 30 November 1983 & Prahlad Chandra Dey vs Assam Board Of Revenue At Gauhati ... on 3 July 1985) also makes the same judgment referring to the earlier supreme court verdict.
Since I am a senior citizen ( 70 yrs) having a small amount of monthly pension, the said amount of cost is not affordable to me. Also, the petitioner may not be suffered for the negligence of the advocate.
Can I prefer an appeal in the high court including all these contentions so that the cost should be recovered from the advocate?
If not,what are the other possible ways left before me to reduce the cost?
Asked 4 years ago in Civil Law

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15 Answers

You can appeal  to HC against district court order seek directions that costs be recovered from lawyer as he remained absent and hence case was dismissed 

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

1. i suggest you take out an application in your disposed of appeal for bringing to the notice of the court about the supreme court verdict you have referred to in your query and for seeking a direction from the court that the costs for restoration be saddled on your advocate who did not attend your matter

2. if the above application is allowed then your lawyer will have to deposit the cost in court or pay it to the respondent

3. if the application is not allowed then in order to restore your suit, you will have to pay the cost to the respondent and thereafter recover that from your advocate by filing legal proceedings against him

4. the application stated in para 1 above must also challenge the seek a recall of the appeal court's order of paying cost of Rs. 15k to the opponent and instead a lower cost be imposed considering you are a senior citizen

5. it is advisable that you engage a good lawyer who will be diligent in your matter and to avoid this situation in the future

Yusuf Rampurawala
Advocate, Mumbai
7483 Answers
79 Consultations

5.0 on 5.0

Plaintiff.

Party also responsible to appear in court if advocate not appear for any reason. Can approach HC by way of writ.

Until no specific direction from court, cost is payable by party. File review agasint order of cost.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

See you can ask your advocate to pay the cost if he fails then you can pay cost one time and then file a complaint before bar council against advocate and can file a suit against advocate to recover the cost amount.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Hello,

Change your advocate first with the no objection from your existing advocate and show his negligence and seek for condonation.

Regards

Swarupananda Neogi
Advocate, Kolkata
2963 Answers
6 Consultations

4.7 on 5.0

- If the direction given by the ADJ , is towards Advocate ,to pay the cost , then your lawyer is liable to pay the same, Otherwise, your Advocate will never pay the imposed cost by the Court. 

- Further, in the absence of Advocate , you are bound to appear before the Court, for informing the Court .

- If you dont want to pay the imposed cost , then you should move an application before the same court , for passing direction to the Lawyer to pay the cost. 

Mohammed Shahzad
Advocate, Delhi
13095 Answers
195 Consultations

5.0 on 5.0

You can make appeal in the High Court as a party in person (PIP). And run your case as self do you shouldn't have any consequences in the future like what you had experienced in past.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

You need a good lawyer who can put a solid case for the court to satisfy that there is a valid reason for restore the case.

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

No appeal against order of cost. 

Maximum cost imposed by court is 3000, HC is empower to limit cost.


The Secretary, Department of Horticulture, Chandigarh and Anr. Vs. Raghu Raj  - Even if there is default on the part of advocate in not appearing at the time of hearing, Appellant shall not suffer injustice."

Still cost imposed on you and ex parte set aside in appeal.

In court, you cannot expect similar result in all cases and imposing fault on an advocate will only trouble you.

 

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

Appeal has to be filed in HC 

 

2) you can appear on your behalf 

 

3) legal fees for filing appeal in HC would be more than costs imposed upon you 

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

1) Writ appeal

2) You can produce case PIP or ask help from government lawyer.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

1. it will be an application for recall of order

2. first try recall. If you fail there, you can go for a writ petition under article 227

3. first make recall application to the appellate court. If you fail then move high court in petition under article 227

4. you need to inquire that with a local lawyer or a court clerk or registrar of court

5. you can appear as party in person. But i would suggest you take help from the Legal Services Authority because you may get confused with the technicalities of filing above applications 

Yusuf Rampurawala
Advocate, Mumbai
7483 Answers
79 Consultations

5.0 on 5.0

The cost has to be paid by the party to the suit and not the advocate who is appearing on behalf of the party.

You may be referring to the old judgments which have been superseded at this stage.

If at all your advocate was not cooperating you had all the rights to change the advocate at that stage itself, you cannot blame the advocate for this.

You may not get any favorable judgment even if you prefer an appeal against this decision, but this would not prevent you from preferring an appeal in this regard, however please note that the appeal would cost you more and you may have to bear the additional expenses besides the cost imposed by the court in this regard. 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

. You may file an appeal against the judgment given by the first appellate court.

You may have to file an appeal either through an advocate or by yourself as a party in person.

If you are not aware of the procedures to file the appeal then you can take the assistance of any advocate who practices in high court for filing purpose and then you can appear as party in person.

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

1. The cost should be paid by plaintiff to respondents. 

2. You can make review application in court to direct advocate for paying the cost the case was dismissed due to fault of his absence.

3. Yes you can file a revision in High court so that cost should be put upon advocate and not on plaintiff. 

 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

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