Mrs.
R.D. Bhatia Vs. Smt. Rajinder Kaur & Ors [1996] INSC 1107 (10 September 1996)
Faizan
Uddin (J) Faizan Uddin (J) Ahmadi A.M. (Cj) Bharucha S.P. (J) Faizan Uddin, J.
CITATION:
JT 1996 (8) 4
ACT:
HEAD NOTE:
1. The
appellant who is an advocate has preferred this appeal under Section 38 of the
Advocates Act against the order dated March 28, 1992 passed by the Dispensary
Committee of the Bar Council of India in BCI/TR Case No. 100 of 1990-
suspending the appellant on the roll of the Bar Council of Maharashtra and Goa
for a period of two years with a further direction to pay sum of Rs. 1500/- as
costs to the complainant respondent No. 1 herein in exercise of its powers
under Section 35 (3) (c) read with Section 38 as well as Section 35 (B) of the
Advocates Act, 1981, The said appellant was also filed the special Leave
Petition referred to above against the order dated October 18, 1982 dismissing
the review petition filed by the appellant against the said order dated March
28, 1982.
2.
This appeal was heard and disposed of by us on March 21, 1996 by passing the following order :- "We have heard the
learned counsel for the appellant as well as the respondent-original
complainant at some length. For reasons which we will state hereafter, we allow
the appeal and set aside the order of the Bar Council of India holding the
appellant guilty of misconduct.
In
view of our decision to set aside the view taken by the bar Council of India
against the appellant the Special Leave Petition which arises out of the
rejection to review application does not survive. Both the matters will,
therefore, stand disposed of accordingly, we however, make no order as to
costs".
We,
therefore, set out the following reasons in support of our said order dated March 21, 1996.
3.
Before we proceed to give reasons in support of our order referred to above
allowing the appeal, it would be appropriate to briefly narrate the facts.
Smt. Rajinder
Kaur the original complainant/respondent No. 1 herein had instituted a money
suit in the Bombay City
Civil Court against
one Smt. Virgillia D'Souza for recovery of a sum of Rs. 10,000/- due under a
bill of exchange. The respondent No. 1 was represented by Advocate Mr. mirchandani
since deceased) in the said suit. An ex-parte decree was passed on December 14, 1984 in favour of the respondent No.1
and against the defendant Mrs. Virgillia Disouza. The appellant who is enrolled
as an advocate with the Bar Council of Maharastra since 1981 and mainly
practicing in Co-operative Courts was introduced with the mother of respondent
No. 1 in August, 1986 by one Mrs. Despande, advocate. The respondent No 1.
along with her mother are said to have met the appellant in the City Civil
Court, Bombay when the appellant was require to identify the respondent No. 1
in the execution proceedings of the ex- parte decree obtained on December 11,
1984 in which the movables belonging to Mrs. D'Souza were attached. It is said
that Mrs. D'Souza obtained the address of the appellant from the Bailiff
working in the Office of the Sherif of Bombay, approached the appellant
offering to pay the decretal amount by installments. According to the appellant
a meeting was held in his office on September 24, 1986 in the presence of the
respondent No. 1 her mother and said Mrs. D'Souza wherein the parties reached
to an agreement for payment of the decretal amount by installments and a sum of
Rs. 500/- was paid towards the decretal amount to the appellant. The
appellant's further case is that in pursuance of the agreement to pay the decretal
amount by installments the respondents No. 1 requested the Sherif of Bombay to
remove the Watchman from the property of Mrs. D'Souza but the attachment may
continued. According to the appellant the receipt of the aforesaid sum of Rs.
500 and a further sum of Rs. 1,000/- paid Mrs D'Souza were recorded in the
execution proceedings which were signed by the respondent No. 1 on being
identified by the appellant. On November 27, 1986 a further sum of Rs. 1000 was
paid by Mrs D'Souza towards the decretal amount, the receipt of which was again
recorded in the execution proceedings.
4.
Thereafter Mrs. D'Souza took out a Notice of Motion for setting aside the ex-parte
decree obtained against her by the respondent No. 1 with the allegations that
no writ of summons was served on her in the suit in which ex-parts decree was
passed and that the appellant had committed extortion in respect of the amount
paid by her and referred to above. According to the appellant it is at this
stage that she filed her Power and appeared for the respondent for the first
time on January 30, 1987 without charging any fee from the respondent No. 1.
According to the appellant the respondent No.1 herein herself had filed an
affidavit Annexure H-1 in reply to the Notice of Motion for setting aside the
ex-parte decree controverting and refuting all the allegations made against the
appellant. According to the appellant since Mrs. D' Souza made allegations
against her, the appellant thought it fit to withdraw herself from the
proceedings after April 30, 1997. She, therefore, filed an affidavit Annexure -
J denying the allegations against her and orally requested the Court to permit
her to withdraw her appearance from the Court in the matter. According to the
appellant one Mr Ladiwale, Advocate tendered his appearance on behalf of the
respondent No. 1 without charging any fee, Mr. Ladiwala appeared and also filed
rejoinder of the respondent No. 1 duly signed by the respondent herself,
Ultimately the City Court its order dated June 9, 1987 set aside the ex-parte
decree passed on December 10, 1984 by the consent of parties advocates. The
appellant passed over the sum of Rs. 3500/- on August 16, 1987 to respondent No. 1 which was paid to her by Mrs. D'Souza
as part payment of the decretal amount against a receipt for the same. The City
Civil Court by its order dated February 18, 1988 directed the respondent No. 1
to refund /deposit in the court the said sum of Rs. 3500/- which was paid by Mrs
D'Souza towards the ex-parte which was set aside. The respondent preferred an
appeal before the Bombay High Court represented by Advocate Shri Ladiwala
against the order of the City
Civil Court dated February 18, 1988 directing her to deposit a sum of Rs.
3500- in Court. The said appeal was converted into a revision and the same was
dismissed by the High Court on April 10, 1980.
Thereafter the respondent No. 1 took time from the City Civil Court on July 4,
1988 to change her counsel Shri Ladiwale and on August 10, 1988 Mr.Munshi,
Advocate is said to have appeared alongwith the respondent No. 1 for the
respondent No. 1 in the City Civil Court, Bombay on which date the defendant
Mrs. D'Souza was granted unconditional leave to defend the suit.
5. The
respondent No. 1 then filed a complaint under Section 88 of the Advocate Act
(hereinafter the Act) before the Bar Council of Maharashtra at Bombay alleging
that while conducting her case the appellant had committed acts of gross
professional misconduct by going hand in `with the defendant Mrs. D'Souza from
behind the curtain and in collusion with and conspiracy of advocates Mr. Ladiwala
and Mr. Munshi by not contesting the suit against Mrs. D'Souza diligently and
properly with the intention to cause loss and harm to respondent No. 1 herein.
As the Bar Council of Maharashtra could not dispose of the complaint filed by
the respondent No. 1 against the appellant within one year as required by
Section 36 (B) of the Act, the same was transferred to the Bar Council of India
and this is how the Bar Council of India was seized of the matter and placed before
its Disciplinary Committee for disposal of the complaint filed by the
respondent No. 1; Smt. Rajender Kaur.
The
said Committee framed the following issues :-
(1)
Whether on 16.2.1987, the respondent appeared in the Court on behalf of the
complainant and later on got appointed Shri Ladiwala and Shri Munshi, Advocates
on behalf of complainant without her knowledge ?
(2)
Whether Shri Ladiwala and Shri Munshi advocates on the instructions and in
collusion with the respondent did not properly contest the case of the
complainant in the High Court of Judicature at Bombay ?
(3)
Whether the respondent colluded with the defendant in the said case in either
contesting the case or by getting appointed Shri Ladiwala and Shri Munshi ?
(a)
Whether the respondent has committed any act of professional misconduct ?
If so,
its effect ?
By the
consent of parties the complaint made by the complainant respondent No. 1 and
the written statement filed by the appellant were respectively treated as their
evidence-in-chief and each party was allowed to cross examine its opponent.
Thus, there is solitary evidence of complainant respondent No. 1 and the
appellant in addition to certain documents on the basis of which the Committee
proceeded to record its findings on the issues referred to above. After analysing
the evidence and the documents on record the Committee took the view that
appellant Advocates was guilty of professional misconduct and, therefore,
answered issues No. 1 and 3 in affirmative against the appellant and in favour
of the complainant respondent No.1.
But as
regards issue No. 2 the Committee answered in negative for the reasons that
Advocates Shri Ladiwala and Shri Munshi were not before the Committee. On these
findings the Committee took the view that the appellant committed professional
misconduct and, therefore passed the impugned order dated March 28, 1992 suspending the appellant for two
years and pay a sum of rs. 1,000/- as cost. The review preferred by appellant
against the said order was also dismissed by order dated October 18, 1992 against which this appeal and the
Special Leave Petition as referred to above have been directed.
4.
Before we embark upon a scrutiny to examine correctness of the impugned
judgment, it may be stated that it is a cardinal principals of law that in
cases of misconduct or allegations of any guilt against any person involving
his indictment or infliction of punishment the evidence adduced should be of
such a character and intrinsic value which may not admit any element of a reasonable
doubt about alleged misconduct or guilt. In other words the evidence should be
beyond all reasonable doubt. That being so, since the provisions of Section 85
of the Advocates Act entail the punishment including removal of the name of the
Advocate against whom the allegation of misconduct is made, from the rolls of
the Bar Council and suspension from practicing for such period as may deemed
fit by the Disciplinary Committee, the evidence adduced should be of such a
character which may be beyond all reasonable doubt about the alleged
professional misconduct. We shall, therefore, examine the evidence and the
material on record to see whether the same establishes the allegation of
misconduct against the appellant beyond all the reasonable doubt.
7.
First of all we shall scrutinize the evidence in relation to issue No.1 as
framed by the Disciplinary Committee and its finding in the affirmative. The
allegation made by the complainant respondent against the appellant is that in
or about the month of September, 1986 she engaged the appellant as her counsel
to represent her in the execution case when she was introduced to the appellant
by somebody. The respondent has alleged that she had signed the Vakalatnama in favour
of the appellant for presenting it in the court but it was not presented by the
appellant till 20.1.1987 and on the contrary got appointed Shri Ladiwala and Shri
Munshi.
Advocates
on her behalf without the knowledge of the respondent No. 1. It has been
alleged in the complaint that the appellant collected a sum of Rs. 500/- on
24.4.1986, Rs.1500/- on 7.10.1986 and a further sum of Rs. 1500/- on 10.11.1986
(in all Rs. 3500/-) towards the part payment of the decretal amount from the
defendant Mrs. D. Souza, but the appellant did not pay the same to her inspite
of her insistence to pay the said amount to her. The complainant respondent No.
1 has further alleged that the appellant in collusion and conspiracy with two
advocates, namely, Shri Ladiwala and Shri Munshi played a dirty game to get the
ex- parte decree set aside by malpractice by remaining behind the curtain with
an intent to cause loss and harm to her and to the advantage of defendant Mrs. D'Souza
by illegally and wrongfully consenting to set aside the ex-parte decree without
her knowledge and consent. In this connection we may first of all refer to
affidavit Annexure H-1 dated 16.2.1987 filed by the complainant-respondent No.1
Smt. Rajinder Kaur herself in reply to the Notice of Motion taken out by the
defendant Mrs. Virgillia D'Souza. In paragraph 8 of the affidavit referred to
above the respondent No. 1 has refuted the allegations made against the
appellant and has made categorical statement that the appellant was only acting
mediator to settle dispute between the respondent No.1 as plaintiff and Mrs. D'Souza
as defendant and in pursuance of the settlement the total payment of Rs. 3500/-
was made towards the decretal amount. In the same paragraph 5 the respondent
No. 1 Smt. Rajinder Kaur has categorically stated that the appellant Mrs.
Bhatia was not her advocates at that point of time and that the appellant had
filed her appearance in the City Civil Court
only on 29.1.1997. This statement clearly falsifies the allegation of the
complainant-respondent No. 1 that she had engaged the appellant as her counsel
in the month of September 1988 but the appellant presented the Vakalatnama on
30.1.1987. The Committee has very lightly brushed aside the aforementioned
statement of respondent No. 1 in her own affidavit on the ground that this
affidavit was filed in English by the appellant without reading over and
explaining the contents thereof to the respondent No. 1 in any language other
than English. The Committee thus accepted the said statement of the respondent
No. 1 as true, contrary to the Committee's own observations with regard to the demeanour
of the complainant respondent No. 1 in paragraph 7 of the impugned order
wherein the Committee has made following observations :- "Though the
evidence was given by C in Hindi, English translation of which was recorded by
this committee, we have marked the demeanour of "C' and found to a certain
extent c understands English and even speak some words in English at least to
get give the sense respectively, though she may not able to have and give a
complete picture in English." (emphasis supplied).
A
reading of the aforementioned observations of the Committee go to show that the
complaint-respondent No. 1 not only could read and understand English to a
certain extent but she could speak as well. That being so the Committee was not
right in accepting the statement of respondent that the contents or her
affidavit dated 16.2.1987 were not read over and explained to her. This is
patently incorrect statement and appears to be an after thought.
8. As
regards the allegation of non-payment of Rs. 3500/- which was received by the
appellant from defendant Mrs. D'Souza towards the part payment decretal amount
we may refer to another affidavit of the complainant respondent No. 1 dated
6.11.1987 filed in the City
Civil Court, Bombay.
In
paragraph 5 of the said affidavit the respondent No. 1 has categorically stated
that the said amount of Rs. 3500/- was received by her from the appellant who
at the time was acting as a mediator to settle the claim. In addition to this
the aforesaid payment of Rs. 3500/- is further established from the receipt
Annexure 'L' dated 29.08.1987 executed by the respondent No. 1 acknowledging
the payment of Rs. 3500/- to her by the appellant which she received from Mrs. Virgillia
D'Souza towards the settlement of the case. Thus the allegation regarding the
non-payment of the said amount is totally fails.
9.
This brings us to the allegation of the plaintiff- respondent No. 1 that the
above advocate Shri Ladiwala and Shri Munshi were appointed by the appellant to
represent the respondent No. 1 without her knowledge and consent who is
collusion and conspiracy with the appellant remained behind the curtain and
wrongfully agreed to set aside the ex-parte decree in order to cause loss to
the respondent No.1 and undue benefit to the defendant Mrs. D'Souza. We find
that this allegation too is without any foundation or any material on record.
The material on record presents a contrary picture. It may pointed out that
though the ex- parte decree in favour of the respondent was set aside by the
City Civil Court, Bombay, with the consent of advocates for parties, by order
8.8.1987 but strangely enough the plaintiff-respondent neither made any
application to the City Civil Court objecting to the setting aside of the ex- parte
decree by consent of counsel for parties nor made any allegation of maladies
against any of his counsel representing her in the said Court nor any
appeal/revision was filed against the said order agitating that the said order
setting aside e ex-parte decree was obtained illegally and without her consent
by the counsel representing her .
Further
it may be pointed out that though the allegation of respondent No. 1 was that
the advocate Shri Ladiwala and Shri Munshi in collusion with the appellant and
the defendant Mrs. D'Souza got the said ex-parte decree set aside but strangely
enough the respondent No. 1 appointed Shri Ladiwala, Advocate to represent her
in the High Court of Bombay also in the appeal against the order dated
18.02.1988 passed by the City Civil Court directing the respondent No. 1 to
deposit/ refund the amount of Rs. 3500/- which is said to have been paid to her
by the defendant Mrs. D'Souza as the ex-parte decree was set aside. The said Vakalatnama
duly signed by the respondent No. 1 Smt. Rajinder Kaur appointing Shri Ladiwala
as her advocate to represent to her in the High Court is to be found at page
179 of this appeal record. The said appeal was dismissed by the High Court by
order dated 19.04.1988 in which Shri Ladiwala has been described as the
advocate for the respondent No. 1 according to the respondent No. 1 advocate Shri
Ladiwala had acted in collusion with other advocates and the opposite party
against the interest of respondent No. 1 in getting the ex-parte decree set
aside why was he agin chosen to represent the respondent No. 1 in the appeal
filed before the High court. . This simply goes to show that the allegation of
misconduct and collusion made against the appellant are only after thought for
which there was no basis at all. There is further material on record to show
that the advocates Shri Ladiwala and Shri Munshi were appearing on her behalf
in the City Civil Court on various dates but the respondent No. 1 at no stage
objected to their appearance on her behalf either before or after the setting
aside ex-parte decree. On a close scrutiny of the evidence and the material on
record it can hardly be said that the respondent No. 1 has been able to prove
the allegations beyond all reasonable doubt. The evidence of the complainant herself
is very shaky and unacceptable. It is unfortunate that all these aspects of the
matter have not been properly appreciated by the Disciplinary Committee of the
Bar Council of India which has resulted into miscarriage of justice. It was for
these reasons that after hearing the learned counsel for parties on March 21, 1996 we were convinced that the impugned
order could not be sustained for the reasons that we have given herein before.
The appeal and the Special Leave Petition already stand disposed of by our
order dated March 21,
1996 and we support
the same with the aforementioned reasons.
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