LAKSHMANAN, CJ. - (1.) THIS appeal has been filed against the order, passed in SB Civil Restoration Application No. 219/2001, in SB Civil Writ Petition NO. 1366/94 (Defect ). By the order impugned in this appeal, the learned Single Judge, by his order dated 8. 8. 2001, dismissed the restoration application. The writ petition was dismissed in default, on 22. 3. 95. The order of the Court, dated 22. 3. 95, reads as under:- "on account of the strike, the petitioner's counsel is not present. No representative on behalf of the petitioner is even present. "
(2.) IN the restoration application, the ground given for the absence of the counsel on 22. 3. 95, when the matter was called for hearing, is as under:- "that on 22. 3. 95, the Bar Council of Rajasthan gave a call for the strike throughout Rajasthan and in connection with that call, Shri R. S. Mehta and his colleagues remained on strike and could not attend the matter and the same was dismissed for default. " It is thus seen that the petitioner's counsel remained absent from the Court, when the matter was called for hearing, for the reason that the Bar Council of Rajasthan had given a call for strike, throughout Rajasthan. The learned Judge dismissed the restoration application, holding that it is hardly a ground, much less a sufficient ground, to remain absent from the Court. The learned Judge has adduced further reasons as well, for the dismissal of the application. Shri R. S. Mehta, the learned counsel for the appellant, states that similar writ petitions were also filed against the assessment orders for the years 1991-92 and 1992-93, which are pending before this Court and that certain restoration applications, filed within time, were also restored by the same learned Judge. It is seen from Ground (c) that other matters, which were listed on 22. 3. 95, before other Bench as well as before the same Bench, were also dismissed in default, but subsequently, they were restored on the same very reason and, therefore, in not restoring the present application, would be discrimination with the appellant. The reason for not attending to court-work, by the lawyer concerned, was on account of "strike". The petitioner's counsel was not present in the Court. No representation on behalf of the petitioner, was made and no representative on behalf of the petitioner, was even present. The Supreme Court, in a very recent judgment, in the case of Ramon Services Pvt. Ltd. vs. Subhash Kapoor and others (1), held that strike/boycott by lawyers not just affects the members of the legal profession, but obstructs the process of court, which is intended to secure justice and that strike by professionals, including Advocates, cannot be equated with strikes by industrial workers. It is also held that the relationship between a lawyer and his client, is one of trust and mutual confidence and that the services, rendered by the Advocates are regulated by a contract between lawyer and client, under the provisions of Advocates' Act and the rules for procedure, framed by the Supreme Court and High Courts. Hon'ble K. T. Thomas, J. , speaking for the Bench, has observed in paragraph 5 of the judgment, as follows:- "when the advocate engaged by a party is on strike there is no obligation on the part of the court either to wait or to adjourn the case on that account. Time and again the Supreme Court has said that an advocate has no right to stall the court proceedings on the ground that advocates have decided to strike or to boycott the courts or even boycott any particular court. "
(3.) IN paragraph 16, Hon'ble the Supreme Court has observed as follows:- "in all cases where the court is satisfied that the ex parte order (passed due to the absence of the advocate pursuant to any strike call) could be set aside on terms, the court can as well permit the party to realise the costs from the advocate concerned without driving such party to initiate another legal action against the advocate. " Placing reliance on the above paragraph, the learned counsel for the appellant, requests that if the Court is satisfied that the ex parte order can be set aside on terms, the Court can as well direct the party or the lawyer, to pay the cost. In this context, it is useful to notice the observations, made by Hon'ble the Supreme Court, in paragraph 15 of its above judgment (supra), wherein, the Supreme Court permitted the appellant, to realise half of the cost, from the firm of the Advocates, or from anyone of the partners. It is useful in this context, to reproduce the relevant portion of the said paragraph as under:- "initially we thought that the appellant could be permitted to realise the whole amount from the said firm of advocates. However, we are inclined to save the firm from bearing the costs partially since the Supreme Court is adopting such a measure for the first time and the counsel would not have been conscious of such a consequence befalling them. Nonetheless we put the profession to notice that in future the advocate would also be answerable for the consequence suffered by the party if the non- appearance was solely on the ground of a strike call. 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 advocate's non-appearance in court, has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case. Even so, in situations like this, when the court mulcts the party with costs for the failure of the advocate to appear, we make it clear that the same court has power to permit the party to realise the costs from the advocate concerned. However, such direction can be passed only after affording an opportunity to the advocate. If he has any justifiable cause the court can certainly absolve him from such a liability. But the advocate cannot get absolved merely on the ground that he did not attend the court as he or his association was on a strike. If any advocate claims that his right to strike must be without any loss to him but the loss must only be for his innocent client such a claim is repugnant to any principle of fair play and canons of ethics. So when he opts to strike work or boycott the court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate. " In the peculiar facts and circumstances of the case, we set aside the order, passed by the learned Single Judge and restore the writ petition to its original number. However, such an order can be made only on the condition that the petitioner-appellant or its counsel shall deposit a sum of Rs. 500/-, with the Legal Services Authority of Rajasthan. On proof of such deposit, the writ petition shall stand restored to its file. . ;