Non-Appearance of Advocates in Indian Courts: Procedural and Ethical Dimensions

Non-Appearance of Advocates in Indian Courts: Procedural and Ethical Dimensions

1. Introduction

The functioning of the Indian adjudicatory system presupposes active participation by counsel. Yet instances of an advocate’s absence—whether deliberate (e.g., boycott or strike) or inadvertent—continue to vex courts, clients, and the Bar. This article critically analyses the legal consequences, remedial frameworks, and ethical ramifications of an advocate’s non-appearance, drawing upon key Supreme Court and High Court precedents, statutory provisions, and professional norms. Special attention is paid to the tension between procedural discipline and substantive justice, as illustrated by the authorities listed in the reference materials.

2. Normative Framework

2.1 Code of Civil Procedure, 1908

  • Order IX (Rules 6–13): dismissal of suits, ex parte decrees, and restoration mechanisms.
  • Order XVII: adjournments and costs for non-appearance.
  • Section 96(2): appeal against ex parte decrees.

2.2 Limitation Act, 1963

Section 5 empowers courts to condone delay where “sufficient cause” is shown.

2.3 Advocates Act, 1961 & Bar Council of India Rules

Section 35 authorises disciplinary action for professional misconduct, while Chapter II, Part VI of the BCI Rules encapsulates an advocate’s duty inter alia to the court and to the client.

3. Jurisprudential Evolution

3.1 Duty to Appear: The Strict View

In Secretary, Dept. of Horticulture v. Raghu Raj the Supreme Court held that “an advocate has no right to remain absent from the Court when the case of his client comes up for hearing” and that such absence is “unfair and discourteous” to both client and court.[1] The Court nevertheless recognised that litigants should not be penalised for their counsel’s default. A similar balance was struck in Rafiq v. Munshilal, where the Court observed that a party who has duly instructed counsel “cannot be a watchdog of the advocate”.[2]

3.2 Strike or Boycott

The most trenchant condemnation of collective abstention appears in Ramon Services Pvt. Ltd. v. Subhash Kapoor, wherein the Supreme Court upheld restoration of a suit dismissed during a lawyers’ strike but sternly warned that advocates would be “answerable for the consequences suffered by their clients”.[3] Later cases such as Hello Mineral Water Pvt. Ltd. reiterated that no advocate may compel a court to desist from judicial work by means of boycott.[4]

3.3 Ex Parte Decrees and Restoration

When non-appearance leads to an ex parte outcome, litigants may pursue:

  1. an application under Order IX Rule 13 CPC; or
  2. an appeal under Section 96(2) CPC.

The Supreme Court in Bhivchandra Shankar More v. Balu Gangaram More clarified that these remedies are “not mutually exclusive” and that time spent diligently pursuing one may constitute “sufficient cause” for delay in pursuing the other.[5] High Courts have similarly treated counsel default as adequate ground for setting aside decrees (Comed Chemicals Ltd. v. USV Ltd.; Laljibhai Dholakia v. PGVCL).[6]

3.4 Procedural Rigour v. Substantive Justice

Justice Krishna Iyer’s concurring opinion in Sushil Kumar Sen v. State of Bihar decried “sacrific[ing] the end product of equity … at the altar of processual punctiliousness”.[7] This sentiment underpins the liberal approach to condonation adopted in later cases, ensuring that procedural default by counsel does not extinguish substantive rights.

3.5 Distinction Between Counsel’s and Client’s Conduct

Courts assess whether the client contributed to the default. In N.K. Electronics v. Narinder Kumar relief was denied after the High Court found the litigant’s version factually incorrect.[8] Conversely, in S.C. Sons (P) Ltd. v. Brahma Devi Sharma the Calcutta High Court restored proceedings, applying Rafiq to avoid penalising an innocent party.[9]

3.6 Ethical Limits to Counsel’s Autonomy

Non-appearance must also be distinguished from unauthorised concessions. In Himalayan Coop. Group Housing Society v. Balwan Singh the Supreme Court held that counsel cannot bind clients without explicit instructions.[10] Thus an advocate’s autonomy is circumscribed both by a duty to appear and by a duty not to exceed authority.

4. Analytical Discussion

4.1 Concept of “Sufficient Cause”

The phrase remains elastic, enabling contextual justice. Bhivchandra emphasises diligence; Biswanath Dey v. Kishori M. Pal distinguishes between mere request for adjournment and true “appearance”.[11] Courts therefore engage in a fact-specific inquiry, balancing:

  • the litigant’s bona fides and diligence;
  • the advocate’s conduct (negligence v. deliberate default);
  • systemic interests in finality and docket management.

4.2 Sanctions and Deterrence

While restoration is often granted, courts increasingly impose costs or direct Bar Council action: Rameshwar Prasad Goyal, In Re underlines that an Advocate-on-Record who lends his signature but abstains from court commits a serious breach.[12] Such measures serve a dual objective—compensation and deterrence.

4.3 Impact on Adjacent Procedural Devices

Advocate absence affects not only trial stage but also intermediate steps (e.g., framing of substantial questions in second appeals, as in Raghu Raj). Excessive reliance on procedural defaults risks undermining Article 21’s guarantee of fair procedure. Furthermore, frequent adjournments attributable to non-appearance contravene the mandate of Order XVII Rule 1(2) (limit of three adjournments) inserted by the CPC Amendment Act, 1999.

4.4 Comparative Note

Unlike some common-law jurisdictions where client negligence binds the litigant, Indian courts, guided by equity considerations and constitutional ethos, generally shield parties from counsel’s lapses. However, this benevolence is tempered by a growing emphasis on professional accountability.

5. Reform Proposals

  • Statutory Clarification: Parliament may codify factors for determining “sufficient cause”, drawing on Justice Krishna Iyer’s suggestion in Sushil Kumar Sen for a “guardedly worded provision”.
  • Mandatory Notice to Client: Courts could direct registry-driven electronic alerts to litigants upon counsel non-appearance, minimising surprise ex parte outcomes.
  • Graduated Sanctions: Adoption of a tariff of costs and possible Bar referrals proportionate to the gravity and frequency of default.
  • Continuing Professional Development: Bar Councils should incorporate court-craft and ethical compliance modules in post-enrolment education.

6. Conclusion

Non-appearance of advocates strikes at the heart of procedural justice, testing the resilience of the adversarial model. Indian jurisprudence reveals a delicate calibration—rebuking derelict counsel while safeguarding litigants’ substantive rights. Future reforms must entrench professional accountability without fettering judicial discretion to remedy genuine hardship. Only through such equilibrium can the courts uphold both the majesty of procedure and the mandate of justice.

Footnotes

  1. Secretary, Department of Horticulture, Chandigarh v. Raghu Raj (2008) 13 SCC 395.
  2. Rafiq v. Munshilal (1981) 2 SCC 788.
  3. Ramon Services Pvt. Ltd. v. Subhash Kapoor (2001) 1 SCC 118.
  4. Hello Mineral Water Pvt. Ltd. v. CCE, 2023 (CESTAT).
  5. Bhivchandra Shankar More v. Balu Gangaram More (2019) 6 SCC 387.
  6. Comed Chemicals Ltd. v. USV Ltd., 2014 SCC OnLine Guj ; Laljibhai Hirabhai Dholakia v. PGVCL (Guj HC 2017).
  7. Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774.
  8. N.K. Electronics v. Narinder Kumar, 2013 (4) Civil Court Cases 373 (P&H).
  9. S.C. Sons (P) Ltd. v. Brahma Devi Sharma, AIR 1986 Cal 367.
  10. Himalayan Coop. Group Housing Society v. Balwan Singh (2015) 7 SCC 373.
  11. Biswanath Dey v. Kishori M. Pal, AIR 1955 Cal 636.
  12. Rameshwar Prasad Goyal, In Re, (2013) 3 SCC 186.