Counsel “OUT OF STATTION” as “SUFFICIENT CAUSE”: A Critical Appraisal

- Submitted by: Lalit Kumar, 217095

What happens when the justice itself cannot account for the justice given or behold?

This justice-oriented approach through the extensive but exquisite use of intellect in judicial
discretion has proven its amenity and loyalty towards the citizen. However, sometimes it deflects
from its natural course in search of optimal resolutions to people’s agony but, differs from that
motive eventually. Similarly, “The doctrine of Sufficient Cause” is one of the outcomes of those
many diversions.

The concerned doctrine basically talks about the limitation period while condoning the delays in
absence of good cause or Bona fide intentions. However, does not provide the guidelines as to
what constitutes that good cause or to what extent the cause of delay is analyzed to confer that
bone fide intention. The power to the doctrine is been derived from the Sec.(s) 3&5 of the
limitation Act, 1963 and further executed through various provisions of the procedural codes.
Similarly, in the Civil Code of Procedure “CPC”, Ord. IXth and XVIIth talk about Adjournment
and restitution of suits only in the presence of a Sufficient Cause or for the circumstances beyond
the control of the party.

Summarizing above given statements as, for the purpose of seeking and granting Adjournments,
the courts need to be satisfied as to the cause for the absence could not be altered or prevented.
Whereas, the courts duty is to go with the liberal approach while deciding the nature of the
cause. For over the period the interpretative approach has extended extensively and as a result
our judicial review has evolved including CPC. Evidently, it can be said that, regardless of the
hierarchy, the courts have been prudent while deciding upon the questions of Adjournments. For
Example; Adjournments have been granted when there is;

1. A Bona fide mistake as to the date of hearing.

2. Sickness of counsel.
3. Strike of Advocates.
4. Change of Lawyer by the party.
5. Fraud of the opposite party.
6. Negligence of next friend or guardian in case of minor plaintiff or defendant.
7. Death of relative of a party.

Although the question of the hour is, whether the Adjournments shall be given when the counsel
is out of station? It is upon the court’s discretion to grant an adjournment irrespective of cause
and its grievances.1 This discretionary power has been argued wide world similarly, The

1
Ord. IX, R.12, CPC “… or show sufficient cause to the satisfaction of the court for failing so to appear…”
Supreme Court in the case of “M/s. Shiv Cotex vs. Tirgun Auto Plast P. Ltd. & Ors.” while
guiding the Judicial Discretion and criticizing the enduring habit of seeking adjournments further
classified the nature of cause into ‘Sufficient Cause’ and ‘Justifiable Cause’. 2 This was further
explained as, there must be a sufficient cause to seek at least the permitted no. of adjournments
although, it is not mandatory on the courts to consider and allow each adjournment but, to exceed
the cause contended must be sufficient and justifiable.3 From the mentioned classification it can
be inferred that, [an] Adjournment is not a right of the seeking party.4 Therefore, there shall be
exhaustive thought processing and only after a very precise measurements of the consequences it
should be allowed. Further, the accountability lies upon both the sides (Courts and Party).

Although, it is a paradox that we can’t be stricter nor can be any liberal about it but, if left un-
dealt then has great potential to come up as the biggest reason of justice failure. This contention
has been addressed in a case “Yunez Teinaz v London Borough of Wandsworth” where, Lord J.
Peter Gibson has talked about the unlimited discretionary power to judiciary while pointing out
the restrictions upon that in the course of preservation of natural justice:

“Every tribunal or court has a discretion to grant an adjournment, and the

exercise of such a discretion, going as it does to the management of a case, is one
with which an appellate body is slow to interfere and can only interfere on limited
grounds, as has repeatedly been recognized. But one recognized ground for
interference is where the tribunal or court exercising the discretion considers
some matter which it ought not to have taken into account …. Although an
adjournment is a discretionary matter, some adjournments must be granted if not
to do so amounts to a denial of justice. Where the consequences of the refusal of
an adjournment are severe, such as where it will lead to the dismissal of the
proceedings, the tribunal or court must be particularly careful not to cause an
injustice to the litigant seeking an adjournment.”5

Similarly, the Bombay High Court while deciding the case of “State Bank of India vs. Kumar
Apparel Industries” also talked about the embodied principle of natural justice in CPC as:

“No injustice is to be caused to the litigant who has approached the court with all
the expectations of getting justice”.6

Similarly, there are various other directions, provisions, precedents that make the code more
justice oriented than any other existing code in the legal field. The basic rationale behind this

2
R.M. Lodha J., “M/s. Shiv Cotex vs. Tirgun Auto Plast P. Ltd. & Ors.” (2011) 9 SCC 678 [Para. 16]
3
Ibid., Para, 17
4
“Salem Advocate Bar Association, Tamil Nadu vs. Union Of India”, AIR 2005 SC 3353 [ Para, 31]
5
Lord J. Peter Gibson, “Yunez Teinaz v London Borough of Wandsworth”, [2002] EWCA Civ 1040
6
SARKAR, “SARKAR’s The Law of Civil Procedure” (Vol.1st, Ed. 11th, Page No., 1269); Also see, State Bank of
India vs. Kumar Apparel Industries, AIR 2003 Bom 128 (130).
compliance with Natural Justice is to prevent injustice to litigants due their pleader’s misconduct
or may be caused by the opposite party through unreasonable adjournment pleadings. There have
been various principles those are prudently interpreted and introduced by the Supreme Court in
the course of defining and explaining the ‘Doctrine of Sufficient Cause’. For example; ‘the
sufficient cause cannot have any rigid view point towards adjournments and is to be executed
with respect to the facts and circumstances present forehands.’7 Thus, while exercising judicial
discretion the execution should be reasonable and rational execution in pragmatic way through
an open mind-set with a foresight to balance the decree holder’s right with its chances to lapse so
as to advance substantial justice.8

If we rest faith all the above provided resources and arguments, we find a never-ending conflict
between rights of the litigants and duty of the court or judiciary. Furthermore, in the pursuit of
finding its resolution, the scope of the doctrine has been stretched to such an extent that now if
we further tries to widen its vibrant spectrum it will neglect the entire public policy and will
defeat the purpose of whole justice and limitation code. As witnessed in “Ram Siromani Tripathi
& Ors. v. State of U.P & Ors.” Where the Supreme Court rejected [an] adjournment plea on the
ground of counsel being out of station calling it out of the ambit of Good/Sufficient Cause and
denied any further application for restoration of the matter.9 In this matter, the Judiciary went
little further and to some extent has affected the judicial balance as mentioned above. Although,
the decision was taken after two or three years of continuous warning and condoning the
overgrown habit of seeking Adjournments. With that having said, for the last one decade
Adjournments are being used as a tool to attain personal benefits and to weaken the respondent
in terms of resources and unduly persuading for compromise as stated by Anil Gidwani. 10 This is
being supported with a report by Vidhi Centre for Legal Policy, Delhi through an article where it
is claimed that, the adjournments sought by the lawyer are the leading cause for delay, occurring
in 90% of delayed case in The Delhi High Court.11

Now, for the biggest concern of ex parte decree we have established a test of sincerity of the
counsel/Party and intention to be present at the time of hearing. If the answers to these questions

7
“VijayaKumar Durgaprasad Gajbi & Ors. Vs. Kamalabai & Ors.”, (1995) 6 SCC148, [Para, 5 & 6]
8
R.V. Raveendran, J. “Perumon Bhagvathy Devaswom v. Bhargavi Amma” (2008) 8 SCC 321 [Para, 13]
9
Ashok Kini “Counsel Being Out Of Station Is Not A Ground To Seek Adjournment: SC” LivLaw.in
https://www.livelaw.in/news-updates/counsel-being-out-of-station-is-not-a-ground-to-seek-adjournment-sc-read-
order-142849 Also See; “Ram Siromani Tripathy & Ors. v. U.P & Ors.” http://itatonline.org/archives/ram-
siromani-tripathi-vs-state-of-u-p-supreme-court-an-adjournment-cannot-be-sought-on-the-ground-that-counsel-is-
out-of-station-the-appeal-has-to-be-dismissed-for-non-prosecution-under-no-circumsta/
10
Anil Gidwani, “ PIL seeks curb on repeated adjournments in courts” Indian Express, July 13th, 2012
http://archive.indianexpress.com/news/pil-seeks-curb-on-repeated-adjournments-in-courts/973897
11
Alok P. Kumar, “ Cutting through the Clutter: India takes the first step to unleash more effective commercial
litigation”, LegallyIndia https://www.legallyindia.com/home/cutting-through-the-clutter-india-takes-first-steps-to-
unleash-more-effective-commercial-litigation-20170628-8620
are up to the pressed benchmark for Bona fide intention and reasonability, then as mentioned in
Ord. IX, R.13 the ex parte decree shall be set aside.

Although, the liberal approach has cost us a surplus of piles of pending cases which are
indefinitely increasing. Even though, it is still relevant to ask, should the party be held
accountable for his counsel’s misconduct?

As per O.XVII/R.2 (d), if the party had adequate time to engage with another lawyer but failed to
do so, then an Adjournment cannot be granted due to lack in sincerity as per test mentioned
above. Although, this provision is in the furtherance of the counsel’s inability to attend court
proceedings due to his illness. If we understand this provision, the sincerity of the party itself is
crucial as to, he cannot be ignorant towards the court proceedings and essence of time. However,
the most problematic aspect of this doctrine is the injustice caused to litigant when all the
expected measures are taken by him prudently. This is the concern which is put forward by
various professional alongside with Prof. (Asst.) M. Menon who states;

“Under no circumstances, [an] application for restoration shall be entertained…

…dismisses an application for restoration even before it is filed, is a problematic

one

For now, it appears that the only remedy left for Ram Siromani Tripathi (and
others) is to sue his lawyer for professional negligence. But then, what if his
second lawyer also goes out of station? Meanwhile, lawyers and Senior
Counsel may now start “falling ill” more often than going out of station.”12

Along with this, Prof. Menon has tried to draw a line separating parties to their respective
pleaders in respect of accountability & liability and went on to advocate party’s innocence.
Although, it is contentious to argue but as implied by Menon’s writing parties are often innocent
and seldom heard. However, the assertion made might be appropriate to made but stands just for
few of the cases while for the rest it is a gateway out from the justice. Which leaves us with
another question, is it all worth it to jeopardize the litigant’s right to justice even for the
vision of ideal judicial system?

“Justice delayed is Justice Denied” a principle that has accepted a futility of redress if not timely
served. With that having said, for the last few years, the Judiciary in the persuit of optimal
solution to the adjournment disease has tried implementing all the possible rational measures.
For Example; Casual warning that converted into the formal warning when realized its
ineffectiveness and moved ahead with the cost adjournments however, nothing that resulted was

12
Mahesh Menon “Non-appearance of lawyers as a ground for Adjournment: The forgotten case of the parties” Bar
& Bench (2019, 17 Feb). https://barandbench.com/non-appearance-lawyers-ground-adjournment-forgotten-case-
parties/
remarkable. But on the other hand, in a recent case “Ram Siromani Tripathi & Ors. v. State of
U.P & Ors.” The Supreme Court has crossed the line of justified preventive measures when
denied any application for restoration even before it is filled. To some extent it could be said
that, the Supreme Court has denied the justice to the litigant due to this advocate’s professional
misconduct. Now, if we speculate the whole discussion happened above, we can say that judicial
discretion while deciding Sufficient Cause is deeper and more liberal than seen. For Example; if
the advocate is out of station because of the sudden sickness or because of a death in family or
was out of station and expected to come for the hearing but flight/train got delayed or for any
other reason occurred without any apprehension. Although, as mentioned in the code Ord. XVII,
R. 2(d), if the party had enough time to engage with another advocate for the time being, but
failed to do so, then no adjournment to be granted. Although, the provision it limited to illness
however could be implemented in each and every scenario whether it is being out of station, or
for the matter of family death etc. where the party could have acted more efficiently but was
ignorant to the court’s proceedings and towards the essence of time. According to prof. Menon,
after this decision, whole legal circuit is shocked as stated;

“The judgment in Ram Siromani Tripathi & Ors. v. State of U.P & Ors. appears
to have captured the attention of the legal community more than any other
judgment.”13

Moreover, it can be inferred that, after this hard stance this is apprehension of fear among
advocates when going for an adjournment plea. However, It is been settled that, there should be a
test to perusal the Bone fide intention and sincerity on the part of both, the pleader and the party
whereas due to the possibility of adverse impact on the party, the test for parties goes on deeper
to examine the presence of negligence on the part of parties. But even after these tests and
benchmarks, the question I often try to find answer to is, what should we choose;

1. Assurance of justice provided to litigants and let that fade away in the next one or two
decade as mentioned above “Justice delayed is Justice Denied”. When we are sure that
condition is not going to be any better that this while stand a chance to get worse and
justice being confined only to books. Or
2. We take hard stances and stand bold about them while providing justice for now with as
efficiently as we can and carry a chance of making our judiciary justified and redress
within the timely boundations.

But for now, if the judiciary itself cannot account for the justice given or behold then, it is
implied that Judiciary and we have failed each other. No measures in that situation can
jeopardize anybody. This are my views as to how a provision implemented at the convenience of
justice seeking personals can make the whole judiciary stand at the brink of total failure and are
subject to further discussion and critics.

13
Ibid.