Vs. Triyugi Narain Mishra & Ors  INSC 617 (5 December 2000)
Shri D.P. Chadha, advocate, the appellant, has been held guilty of professional
misconduct by Rajasthan State Bar Council and punished with suspension from
practice for a period of five years. Shri Anil Sharma, advocate was also
proceeded against along with Shri D.P. Chadha, advocate and he too having been
found guilty was reprimanded. An appeal preferred by Shri D.P. Chadha, advocate
under Section 37 of the Advocates Act, 1961 has not only been dismissed but the
Bar Council of India has chosen to vary the punishment of the appellant by
enhancing the period of suspension from practice to ten years. The Bar Council
of India has also directed notice to show cause against enhancement of
punishment to be issued to Shri Anil Sharma, advocate. The Bar Council of India
has further directed proceedings for professional misconduct to be initiated
against one Shri Rajesh Jain, advocate. Shri D.P. Chadha, advocate has
preferred this appeal under Section 38 of the Advocates Act, 1961 (hereinafter
the Act, for short).
not disputed that Upasana Construction Pvt.
had filed a suit for ejectment based on landlord-tenant relationship against
the complainant Shri Triyugi Narain Mishra, who was running a school in the
tenanted premises wherein about 2000 students were studying.
D.P. Chadha was engaged by the complainant for defending him in the suit.
not necessary to set out in extenso the contents of the complaint made by Shri Triyugi
Narain Mishra to the Bar Council. It would suffice to notice in brief the
findings concurrently arrived at by the State Bar Council and the Bar Council
of India constituting the gravamen of the charge against the appellant. While
the proceedings in the ejectment suit were going on in the Civil Court at Jaipur,
the complainant was contesting an election in the State of U.P. Polling was
held on 18.11.1993 and again on 22.11.1993 on which dates as also on the days
intervening, Shri Triyugi Narain Mishra was in Chilpur in the State of U.P.
looking after the election and was certainly not available at Jaipur. Shri D.P.
Chadha was in possession of a blank vakalatnama and a blank paper, both signed
by the complainant, given to him in the first week of October, 1993. These
documents were used for fabricating a compromise petition whereby the
complainant has been made to suffer a decree for eviction. The blank vakalatnama
was used for engaging Shri Anil Sharma, advocate, on behalf of the complainant,
who got the compromise verified. Though the compromise was detrimental to the
interest of the complainant yet the factum of compromise and its verification
was never brought to the notice of the complainant inspite of ample time and
opportunity being available for the purpose. The proceedings of the court show
a deliberate attempt having been made by three erring advocates to avoid the
appearance of the complainant before the court, to prevent the complainant from
gathering knowledge of the compromise filed in court and creating a situation
whereby the court was virtually compelled to pass a decree though the court was
feeling suspicious of the compromise and wanted presence of complainant to be
secured before it before the decree was passed.
proceedings of the court and the several documents relating thereto go to show
that earlier the plaintiff company was being represented by Shri Vidya Bhushan
Sharma, advocate. An application was moved on behalf of the plaintiff
discharging Shri Vidya Bhushan Sharma from the case and instead engaging Shri
Rajesh Jain, advocate on behalf of the plaintiff and in place of Shri Vidya Bhushan
Sharma, advocate. On 17.11.1993 Shri D.P. Chadha was present in the court
though the defendant was not present when an adjournment was taken from the
court stating that there was possibility of an amicable settlement between the
parties whereupon hearing was adjourned to 14.2.1994 for reporting compromise
or framing of issues. On 20.11.1993, which was not a date fixed for hearing, Shri
Rajesh Jain and Shri Anil Sharma, advocates appeared in the court on behalf of
the plaintiff and the defendant respectively and filed a compromise petition. Shri
Anil Sharma filed Vakalatnama purportedly on behalf of the complainant.
compromise petition purports to have been signed by the parties as also by Shri
Rajesh Jain, advocate on behalf of the plaintiff and Shri Anil Sharma, advocate
on behalf of the defendant. The compromise petition is accompanied by another
document purporting to be a receipt executed by the complainant acknowledging
receipt of an amount of Rs.5 lakhs by way of damages for the loss of school
building standing on the premises. The receipt is typed but the date 20.11.1993
is written in hand. A revenue stamp of 20 p. is fixed on the receipt in a side
of the paper and at a place where ordinarily the ticket is not affixed. The factum
of the defendant having received an amount of Rs.5 lakhs as consideration
amount for the compromise does not find a mention in the compromise petition.
Learned Additional Civil Judge before whom the compromise petition was filed
directed the parties to remain personally present before the court on
17.12.1993 so as to verify the compromise. Instead of complying with the
orders, Shri Rajesh Jain, advocate filed a misce. civil appeal raising a plea
that the trial court was not justified in directing personal appearance of the
parties and should have recorded the compromise on verification by the
advocates. The complainant Shri Triyugi Narain Mishra was impleaded as
respondent through advocate Shri Anil Sharma __ as stated in the cause title of
memo of appeal. The appeal was filed on 20.12.1993. Notice of appeal was not
issued to the complainant; the same was issued in the name of Shri Anil Sharma,
advocate, who accepted the same. Shri Anil Sharma, advocate did not file any vakalatnama
on behalf of the complainant in the appeal and instead made his appearance by
filing a memo of appearance reciting his authority to appear in appeal on the
basis of his being a counsel for the complainant in the trial court. This
appeal was dismissed by the Learned Additional District Judge on 24.1.1994
holding the appeal to be not maintainable.
30.1.1994, the trial courts record was returned to it by the appellate court.
On 17.12.1993 also the trial court had directed personal appearance of the
parties. On 16.2.1994 the counsel appearing for the parties (the names of the
counsel not mentioned in the order sheet dated 16.2.1994) took time for
submitting case law for the perusal of the court. Similar prayer was made on
21.2.1994 and 18.3.1994. On 8.4.1994, the plaintiff was present with his
counsel. The defendant/complainant was not present. Shri D.P. Chadha, advocate
appeared on behalf of the defendant and argued that personal presence of Shri Triyugi
Narain Mishra was not required for verification of compromise and the presence
of the advocate was enough for the court to verify the compromise and take the
same on record. The court was requested to recall its earlier order directing
personal appearance of the parties. A few decided cases were cited by Shri D.P.
Chadha, advocate before the court for its consideration. The trial court suspected
the conduct of the counsel and passed a detailed order directing personal
presence of the defendant to be secured before the court. The trial court also
directed a notice to be issued to the defendant for his personal appearance on
the next date of hearing before passing any order on the compromise petition.
Rajesh Jain, advocate again filed an appeal against the order dated 8.4.1994.
Again the complainant was arrayed as a respondent in the cause title through Shri
Anil Sharma, advocate. An application was moved before the appellate court
seeking a shorter date of hearing as defendant was likely to go out. On
21.8.1994 the appellate court directed the record of the trial court to be
requisitioned. Shri Anil Sharma, advocate appeared in the appellate court
without filing any vakalatnama from the complainant. He conceded to the appeal
being allowed and personal appearance of the defendant not being insisted upon
for the purpose of recording the compromise. The appellate court was apparently
oblivious of the legal position that such a misce. appeal was not maintainable
under any provision of law.
copy of the order of the appellate court was obtained in hot haste.
Unfortunately, the Presiding Officer of the trial court, who was dealing with the
matter, had stood transferred in the meanwhile. An application was filed before
the successor Trial Judge by Shri Rajesh Jain, advocate requesting compliance
with the order of the appellate court and to record the compromise and pass a
decree in terms thereof dispensing with the necessity of personal presence of
the parties. On 23.7.1994, the Trial Judge, left with no other option, passed a
decree in terms of compromise in the presence of Shri Rajesh Jain & Shri
Anil Sharma, advocates. The decree directed the suit premises to be vacated by
30.11.1993 (the date stated in the compromise petition).
Narain Mishra, the complainant, moved the State Bar Council complaining of the
professional misconduct of the three advocates who had colluded to bring the
false compromise in existence without his knowledge and also made all effort to
prevent the complainant gathering knowledge of the alleged compromise.
response of the notice issued by the State Bar Council, Shri Anil Sharma,
advocate submitted that he did not know Shri Triyugi Narain Mishra personally.
The vakalatnama and the compromise petition were handed over to him by Shri
D.P. Chadha, advocate for the purpose of being filed in the court. Shri Anil
Sharma was told by Shri D.P.
advocate that he was not well and if there was any difficulty in securing the
decree then he was available to assist Shri Anil Sharma. In the two misce. civil
appeals preferred by Shri Rajesh Jain, advocate, Shri Anil Sharma accepted the
notices of the appeals on the advice of Shri D.P. Chadha, advocate.
D.P. Chadha, advocate took the plea that he was not aware of the compromise
petition and the various proceedings relating thereto leading to verification
of the compromise and passing of the decree. He submitted that he never
obtained blank paper or blank vakalatnama signed by any one at any time and not
even Shri Triyugi Narain Mishra, the complainant. He also submitted that on
8.4.1994 his presence has been wrongly recorded in the proceedings and he had
not appeared before the court to argue that the personal presence of the
parties was not required for verification of compromise petition filed in the
court and counsel was competent to sign and verify the compromise whereon the
court should act.
other witnesses the complainant and the three counsel have all been examined by
the State Bar Council and cross examined by the parties to the disciplinary
proceedings. The defence raised by the appellant has been discarded by the
State Bar Council as well as by the Bar Council of India in their orders. Both
the authorities have dealt extensively with the improbabilities of the defence
and assigned detailed reasons in support of the findings arrived at by them.
Both the authorities have found the charge against the appellant proved to the
hilt. The statement of the complainant has been believed that he had never
entered into any compromise and he did not even have knowledge of it. His
statement that Shri D.P. Chadha, the appellant, had obtained blank paper and
blank vakalatnama signed by him and the same have been utilised for the purpose
of fabricating the compromise and appointing Shri Anil Sharma, advocate, has
also been believed. Here it may be noted that Shri D.P. Chadha had denied on
oath having obtained any blank paper or vakalatnama from Shri Triyugi Narain Mishra.
However, while cross-examining the complainant first he was pinned down in
stating that only one paper and one vakalatnama (both blank) were signed by him
and then Shri D.P. Chadha produced from his possession one blank vakalatnama
& one blank paper signed by the complainant. The Bar Council has found that
the blank paper, so produced by the appellant, bore the signature of the
complainant almost at the same place of the blank space at which the signature
appears on the disputed compromise.
of signed blank vakalatnama and blank paper from the custody of the complainant
before the Bar Council belied the appellants defence emphatically raised in his
written statement. On 8.4.1994 the presence of the appellant is recorded by the
trial court at least at two places in the order sheet of that date. It is
specifically recorded in the context of his making submissions before the court
relying on several rulings to submit that personal appearance of the party was
not necessary to have the compromise verified and taken on record. The
appellant had not moved the court at any time for correcting the record of the
proceedings and deleting his appearance only if the order sheet did not
correctly record the proceedings of the court. On and around the filing of the
compromise petition before the trial court the appellant was keeping a watch on
the proceedings and noting the appointed dates of hearing though he was not
actually appearing in the court on the dates other than 8.4.1994. In short, it
has been found both by the State Bar Council and the Bar Council of India that
the complainant had not entered in any compromise and that he was not even
aware of it. Blank vakalatnama and blank paper entrusted by him in confidence
to his counsel, i.e.
appellant, were used for the purpose of bringing a false compromise into
existence and appointing Shri Anil Sharma, advocate for the defendant, without
his knowledge, to have compromise verified and brought on record followed by a
decree. Shri Vidya Bhushan Sharma, the counsel originally appointed by the
plaintiff might not have agreed to a decree being secured in favour of the
plaintiff on the basis of a false compromise and that is why he was excluded
from the proceedings and instead Shri Rajesh Jain was brought to replace him.
The decree resulted into closure of the school, demolition of school building
and about 2000 students studying in the school being thrown on the road.
have heard the learned counsel for the parties at length. We have also gone
through the evidence and the relevant documents available on record of the Bar
of the opinion that the State Bar Council as well as the Bar Council of India
have correctly arrived at the findings of the fact and we too find ourselves
entirely in agreement with the findings so arrived at.
very nature of things there was nothing like emergency, not even an urgency for
securing verification of compromise and passing of a decree in terms thereof.
were not going to fall if the recording of the compromise was delayed a little
and the defendant was personally produced in the court who was certainly not
available in Jaipur being away in the State of U.P.
an election. The counsel for the parties were replaced apparently for no
reason. The trial court entertained doubts about the genuineness of the
compromise and therefore directed personal appearance of the parties for
verification of the compromise. The counsel appearing in the case made all
possible efforts at avoiding compliance with the direction of the trial court
and to see that the compromise was verified and taken on record culminating
into a decree without the knowledge of the defendant/complainant.
of securing presence of the defendant before the court, the counsel preferred misce.
appeals twice and ultimately succeeded in securing an appellate order, which
too is collusive, directing the trial court to verify and take on record the
compromise without insisting on personal appearance of the defendant. Such
miscellaneous appeal, as was preferred, was not maintainable under Section 104
or Order 43 Rule 1 of the C.P.C. or any other provision of law. In an earlier
round the appellate court had expressed that view. The proceedings in the
appellate court as also before the trial court show an effort on the part of
the counsel appearing thereat to have the matter as to compromise disposed of
hurriedly, obviously with a view to exclude the possibility of the
defendant-complainant gathering any knowledge of what was transpiring.
23 Rule 3 of the C.P.C. reads as under:- Compromise of suit. __ Where it is
proved to the satisfaction of the Court that a suit has been adjusted wholly or
in part by any lawful agreement or compromise, in writing and signed by the
parties, or where the defendant satisfies the plaintiff in respect of the whole
or any part of the subject-matter of the suit, the Court shall order such
agreement, compromise or satisfaction to be recorded, and shall pass a decree
in accordance therewith so far as it relates to the parties to the suit,
whether or not the subject matter of the agreement, compromise or satisfaction
is the same as the subject-matter of the suit.
xxx xxx xxx xxx xxx xxx AIR 1991 SC 2234 is an authority for the proposition
that inspite of the 1976 Amendment in Order 23 Rule 3 of the C.P.C. which
requires agreement or compromise between the parties to be in writing and
signed by the parties, the implied authority of counsel engaged in the thick of
the proceedings in court, to compromise or agree on matters relating to the
parties, was not taken away. Neither the decision in Byram Pestonji Gariwala
nor any other authority cited on 8.4.1994 before the trial court dispenses with
the need of the agreement or compromise being proved to the satisfaction of the
court. In order to be satisfied whether the compromise was genuine and
voluntarily entered into by the defendant, the trial court had felt the need of
parties appearing in person before the court and verifying the compromise. In
the facts & circumstances of the case the move of the counsel resisting
compliance with the direction of the court was nothing short of being sinister.
The learned Additional District Judge who allowed the appeal preferred by Shri
Rajesh Jain unwittingly fell into trap.
expected of the learned Additional District Judge, who must have been a senior
judicial officer, to have seen that he was allowing an appeal which was not
even maintainable. But for his order the learned Judge of the trial court would
not have taken on record the compromise and passed decree in terms thereof
unless the parties had personally appeared before him. In our opinion the
appellant Shri D.P. Chadha was not right in resisting the order of the trial
court requiring personal appearance of the defendant for verifying the
compromise. This resistance speaks volumes of sinister design working in the
minds of the guilty advocates. Even during the course of these proceedings and
also during the course of hearing of the appeal before us there is not the
slightest indication of any justification behind resistance offered by the
counsel to the appearance of the defendant in the trial court. The correctness
of the proceedings dated 8.4.1994 as recorded by the court cannot be doubted.
The order sheet of the trial court dated 8.4.1994 records as under:
(Cutting). Plaintiff with counsel present.
counsel Shri D.P.Chadha present. Arguments heard. Judicial precedents A.I.R.
1980 Cal 51, A.I.R.
195, A.I.R. 1991 SC 2234 cited by Shri D.P.
perused. In the matter under consideration, compromise was filed on 20.11.93
and the same day the counsel were directed to keep the parties present in court
but parties were not produced. On behalf of the plaintiff- appellant, an appeal
was also preferred against the order dated 20.11.93 before the Honble Distt.
& Sessions Judge but the order of trial court being not appealable, appeal
has been dismissed.
No.40 of the decision A.I.R. 1991 SC 2234 is as under :
we are of the view that the words in writing and signed by the parties inserted
by the CPC(Amendment) Act, 1976 must necessarily mean to borrow the language of
Order III R.1 CPC.
appearance . . . . . . . . . or by a pleader appearing applying or acting as
the case may be on his behalf.
that any such appearance shall if the court so desires be made by the party in
in my view the court can direct any party to be present in court under Order
III R.1 in compliance with the said decision of Honble Supreme Court. The
counsel for the defendant has not produced the defendant in court.
notice be issued to the defendant to appear personally in court. For service of
notice, the case be put up on 5.5.94. Before (cutting) preparing the decree on
the basis of compromise, I deem it proper in the interest of justice to direct
the opposite party to personally appear in the court.
Illegible Seal of Addl. Civil Judge & Addl.
Magistrate No.6, Jaipur City.
by us] The record of the proceedings made by the court is sacrosanct. The
correctness thereof cannot be doubted Shrinivas Nayak & Anr. AIR 1982 SC
1249, this court has held . . . . . . . . . .the Judges record was conclusive.
Neither lawyer not litigant may claim to contradict it, except before the Judge
himself, but nowhere else. The court could not launch into inquiry as to what
transpired in the High Court.
Court is bound to accept the statement of the Judges recorded in their judgment,
as to what transpired in court. It cannot allow the statement of the Judges to
be contradicted by statements at the Bar or by affidavit and other evidence. If
the Judges say in their judgment that something was done, said or admitted
before them, that has to be the last word on the subject. The principle is well
settled that statements of fact as to what transpired at the hearing, recorded
in the judgment of the court, are conclusive of the facts so stated and no one
can contradict such statements by affidavit or other evidence. If a party
thinks that the happenings in court have been wrongly recorded in a judgment,
it is incumbent upon the party, while the matter is still fresh in the minds of
the Judges, to call the attention of the very Judges who have made the record
to the fact that the statement made with regard to his conduct was a statement
that had been made in error.
is the only way to have the record corrected. If no such step is taken, the
matter must necessarily end there.
Development Corporation - AIR 1990 SC 371 this Court has held : It is now
settled law that the statement of facts recorded by a Court or Quasi-Judicial
Tribunal in its proceedings as regards the matters which transpired during the
hearing before it would not be permitted to be assailed as incorrect unless
steps are taken before the same forum.
be open to a party to bring such statement to the notice of the Court/Tribunal
and to have it deleted or amended. It is not, therefore, open to the parties or
the Counsel to say that the proceedings recorded by the Tribunal are incorrect.
explanation given by the appellant for not moving the trial court for
rectification in the record of proceedings is that the presiding judge of the
court had stood transferred and therefore it would have been futile to move for
rectification. Such an explanation is a ruse merely. The application for
rectification should have been moved as the only course permissible and, if
necessary, the record could have been sent to that very judge for dealing with
prayer of rectification wherever he was posted. In the absence of steps for
rectification having been taken a challenge to the correctness of the facts
recorded in order sheet of the court cannot be entertained, much less upheld.
agree with the finding recorded in the order under appeal that the proceedings
dated 8.4.1994 correctly state the appellant having appeared in the court and
argued the matter in the manner recited therein.
term misconduct has not been defined in the Act.
it is an expression with a sufficiently wide meaning. In view of the prime
position which the advocates occupy in the process of administration of justice
and justice delivery system, the courts justifiably expect from the lawyers a
high standard of professional and moral obligation in the discharge of their
duties. Any act or omission on the part of a lawyer which interrupts or
misdirects the sacred flow of justice or which renders a professional unworthy
of right to exercise the privilege of the profession would amount to misconduct
attracting the wrath of disciplinary jurisdiction. In the Bar Council of Iyer,
J. said that the vital role of the lawyer depends upon his probity and
professional lifestyle. The central function of the legal profession is to
promote the administration of justice. As monopoly to legal profession has been
statutorily granted by the nation, it obligates the lawyer to observe
scrupulously those norms which make him worthy of confidence of community in
him as a vehicle of justice __ social justice. The Bar cannot behave with
doubtful scruples or strive to thrive on litigation. Canons of conduct cannot
be crystalised into rigid rules but felt by the collective conscience of the
practitioners as right.
no trade, briefs no merchandise. Foreseeing the role which the legal profession
has to play in shaping the society and building the nation, Krishna Iyer, J.
goes on to say __ For the practice of Law with expanding activist horizons,
professional ethics cannot be contained in a Bar Council rule nor in
traditional cant in the books but in new canons of conscience which will
command the members of the calling of justice to obey rules of morality and
utility, clear in the crystallized case-law and concrete when tested on the
qualms of high norms __ simple enough in given situations, though involved when
expressed in a single sentence.
error of judgment or expression of a reasonable opinion or taking a stand on a
doubtful or debatable issue of law is not a misconduct; the term takes its colour
from the underlying intention. But at the same time misconduct is not
necessarily something involving moral turpitude. It is a relative term to be
construed by reference to the subject matter and the context wherein the term
is called upon to be employed. A lawyer in discharging his professional
assignment has a duty to his client, a duty to his opponent, a duty to the
court, a duty to the society at large and a duty to himself. It needs a high
degree of probity and poise to strike a balance and arrive at the place of
righteous stand more so when there are conflicting claims. While discharging
duty to the court, a lawyer should never knowingly be a party to any deception,
design or fraud. While placing the law before the court a lawyer is at liberty
to put forth a proposition and canvass the same to the best of his wits and
ability so as to persuade an exposition which would serve the interest of his
client so long as the issue is capable of that resolution by adopting a process
of reasoning. However, a point of law well settled or admitting of no
controversy must not be dragged into doubt solely with a view to confuse or
mislead the Judge and thereby gaining an undue advantage to the client to which
he may not be entitled. Such conduct of an advocate becomes worse when a view
of the law canvassed by him is not only unsupportable in law but if accepted
would damage the interest of the client and confer an illegitimate advantage on
the opponent. In such a situation the wrong of the intention and impropriety of
the conduct is more than apparent. Professional misconduct is grave when it
consists of betraying the confidence of a client and is gravest when it is a
deliberate attempt at misleading the court or an attempt at practising deception
or fraud on the court. The client places his faith and fortune in the hands of
the counsel for the purpose of that case; the court places its confidence in
the counsel in case after case and day after day. A client dissatisfied with
his counsel may change him but the same is not with the court. And so the
bondage of trust between the court and the counsel admits of no breaking.
1936 PC 224] the Privy Council has approved the following definition of
professional misconduct given by Darling J. in Re A Solicitor ex parte the Law
Society [(1912) 1 KB 302] - If it is shown that an Advocate in the pursuit of
his profession has done something with regard to it which would be reasonably
regarded as disgraceful or dishonourable by his professional brethren of good
repute and competency, then it is open to say that he is guilty of professional
been a saying as old as the profession itself that the court and counsel are
two wheels of the chariot of justice. In adversarial system it will be more
appropriate to say __ while the Judge holds the reigns, the two opponent
counsel are the wheels of the chariot. While the direction of the movement is
controlled by the Judge holding the reigns, the movement itself is facilitated
by the wheels without which the chariot of justice may not move and may even
collapse. Mutual confidence in the discharge of duties and cordial relations
between Bench and Bar smoothen the movement of chariot. As a responsible
officer of the court, as they are called __ and rightly, the counsel have an
over all obligation of assisting the courts in a just and proper manner in the
just and proper administration of justice.
and enthusiasm are the traits of success in profession but over- zealousness
and misguided enthusiasm have no place in the personality of a professional.
advocate while discharging duty to his client, has a right to do every thing
fearlessly and boldly that would advance the cause of his client. After all he
has been engaged by his client to secure justice for him. A counsel need not
make a concession merely because it would please the Judge. Yet a counsel, in
his zeal to earn success for a client, need not step over the well defined
limits or propriety, repute and justness. Independence and fearlessness are not licences of liberty to do anything
in the court and to earn success to a client whatever be the cost and whatever
be the sacrifice of professional norms.
lawyer must not hesitate in telling the court the correct position of law when
it is undisputed and admits of no exception. A view of the law settled by the
ruling of a superior court or a binding precedent even if it does not serve the
cause of his client, must be brought to the notice of court unhesitatingly.
This obligation of a counsel flows from the confidence reposed by the court in
the counsel appearing for any of the two sides. A counsel, being an officer of
court, shall apprise the Judge with the correct position of law whether for or
against either party.
Justice Crampton, an Irish Judge, said in Queen The advocate is a
representative but not a delegate.
gives to his client the benefit of his learning, his talents and his judgment;
but all through he never forgets what he owes to himself and to others. He will
not knowingly misstate the law, he will not wilfully misstate the facts, though
it be to gain the case for his client. He will ever bear in mind that if he be
an advocate of an individual and retained and remunerated often inadequately,
for valuable services, yet he has a prior and perpetual retainer on behalf of
truth and justice and there is no Crown or other license which in any case or
for any party or purpose can discharge him from that primary and paramount
aware that a charge of misconduct is a serious matter for a practising
advocate. A verdict of guilt of professional or other misconduct may result in
reprimanding the advocate, suspending the advocate from practice for such
period as may be deemed fit or even removing the name of the advocate from the roll
of advocates which would cost the counsel his career. Therefore, an allegation
of misconduct has to be proved to the hilt. The evidence adduced should enable
a finding being recorded without any element of reasonable doubt. In the
present case, both the State Bar Council and the Bar Council of India have
arrived at, on proper appreciation of evidence, a finding of professional
misconduct having been committed by the appellant. No misreading or non-reading
of the evidence has been pointed out. The involvement of the appellant in
creating a situation resulting into recording of a false and fabricated
compromise, apparently detrimental to the interest of his client, is clearly
spelled out by the findings concurrently arrived at with which we have found no
reason to interfere.
appellant canvassed a proposition of law before the court by pressing into
service such rulings which did not support the interpretation which he was
frantically persuading the court to accept. The provisions of Rule 3 of Order
23 are clear. The crucial issue in the case was not the authority of a counsel
to enter into a compromise, settlement or adjustment on behalf of the client.
The real issue was of the satisfaction of the court whether the defendant had
really, and as a matter of fact, entered into settlement. The trial judge
entertained a doubt about it and therefore insisted on the personal appearance
of the party to satisfy himself as to the correctness of the factum of
compromise and genuineness of the statement that the defendant had in fact
compromised the suit in the manner set out in the petition of compromise.
power of the court to direct personal presence of any party is inherent and
implicit in jurisdiction vesting in the court to take decision. This power is a
necessary concomitant of courts obligation to arrive at a satisfaction and
record the same as spelt out from the phraseology of Order 23 Rule 3 C.P.C.. It
is explicit in Order 3 Rule 1. This position of law admits of no doubt.
resistance was offered to an innocuous and cautious order of the court by
canvassing an utterly misconceived proposition, even by invoking a wrong
appellate forum and with an ulterior motive. The counsel appearing for the
defendant, including the appellant, did their best to see that their own client
did not appear in the court and thereby gather knowledge of such proceedings.
At no stage, including the hearing before this court, the appellant has been
able to explain how and in what manner he was serving the interest of his client,
i.e. the defendant in the suit by raising the plea which he did. What was the
urgency of having the compromise recorded without producing the defendant
in-person before the court when the court was insisting on such appearance? The
compromise was filed in the court. The defendant was away electioneering in his
constituency. At best or at the worst, the recording of the compromise would
have been delayed by a few days. In the facts and circumstances of the case we
find no reason to dislodge the finding of professional misconduct as arrived at
by the State Bar Council and the Bar Council of India.
been lastly contended by the learned counsel for the appellant that the Bar
Council of India was not justified in enhancing the punishment by increasing
the period of suspension from practice from 5 years to 10 years.
submitted that the order enhancing the punishment to the prejudice of the
appellant is vitiated by non- compliance with principles of natural justice and
also for having been passed without affording the appellant a reasonable
opportunity of being heard.
37 of the Advocates Act, 1961 provides as under:- 37. Appeal to Bar Council of India. - (1) Any person aggrieved by an
order of the disciplinary committee of a State Bar Council made under Section
35 [or the Advocate General of the State] may, within sixty days of the date of
communication of the order to him, prefer an appeal to the Bar Council of
Every such appeal shall be heard by the disciplinary committee of the Bar Council
of India which may pass such order [including an order varying the punishment
awarded by the disciplinary committee of the State Bar Council] thereon as it
deems fit :
that no order of the disciplinary committee of the State Bar Council shall be
varied by the disciplinary committee of the Bar Council of India so as to
prejudicially affect the person aggrieved without giving him reasonable
opportunity of being heard.} Very wide jurisdiction has been conferred on the
Bar Council of India by sub-section (2) of Section 37. The Bar Council of India
may confirm, vary or reverse the order of the State Bar Council and may remit
or remand the matter for further hearing or rehearing subject to such terms and
directions as it deems fit. The Bar Council of India may set aside an order
dismissing the complaint passed by the State Bar Council and convert it into an
order holding the advocate proceeded against guilty of professional or other
misconduct. In such a case, obviously, the Bar Council of India may pass an
order of punishment which the State Bar Council could have passed. While
confirming the finding of guilt the Bar Council of India may vary the
punishment awarded by the Disciplinary Committee of the State Bar Council which
power to vary would include the power to enhance the punishment. An order
enhancing the punishment, being an order prejudicially affecting the advocate,
the proviso mandates the exercise of such power to be performed only after
giving the advocate reasonable opportunity of being heard. The proviso embodies
the rule of fair hearing.
and consistently with the well-settled principles of natural justice, if the
Bar Council of India proposes to enhance the punishment it must put the guilty
advocate specifically on notice that the punishment imposed on him is proposed
to be enhanced. The advocate should be given a reasonable opportunity of
showing cause against such proposed enhancement and then he should be heard.
case at hand we have perused the proceedings of the Bar Council of India. The
complainant did not file any appeal or application before the Bar Council of
India praying for enhancement of punishment. The appeal filed by the appellant
was being heard and during the course of such hearing it appears that the Disciplinary
Committee of the Bar Council of India indicated to the appellants counsel that
it was inclined to enhance the punishment. This is reflected by the following
passage occurring in the order under appeal:- While hearing the matter finally
parties were also heard as to the enhancement of sentence.
appellant himself was not present on the date of hearing. He had prayed for an
adjournment on the ground of his sickness which was refused. The counsel for
the appellant was heard in appeal. It would have been better if the Bar Council
of India having heard the appeal would have first placed its opinion on record
that the findings arrived at by the State Bar Council against the appellant
were being upheld by it. Then the appellant should have been issued a
reasonable notice calling upon him to show cause why the punishment imposed by
the State Bar Council be not enhanced.
giving him an opportunity of filing a reply and then hearing him the Bar
Council could have for reasons to be placed on record, enhanced the punishment.
Nothing such was done. The exercise by the Bar Council of India of power to
vary the sentence to the prejudice of the appellant is vitiated in the present
case for not giving the appellant reasonable opportunity of being heard. The
appellant is about 60 years of age. The misconduct alleged relates to the year
1993. The order of State Bar Council was passed in December 1995. In the fact
and circumstances of the case we are not inclined to remit the matter now to
the Bar Council of India for compliance with the requirements of proviso to
sub-section (2) of Section 37 of the Act as it would entail further delay and
as we are also of the opinion that the punishment awarded by the State Bar
Council meets the ends of justice.
the foregoing reasons the appeal is partly allowed. The finding that the
appellant is guilty of professional misconduct is upheld but the sentence
awarded by the Rajasthan State Bar Council suspending the appellant from
practice for a period of five years is upheld and restored. Accordingly, the
order of the Bar Council of India, only to the extent of enhancing the
punishment, is set aside. No order as to the costs.
Bar Council of India, by its order under appeal, directed notices to be issued
to Shri Rajesh Jain & Shri Anil Sharma, Advocates, respectively, for
initiating proceedings for professional misconduct and for enhancement of
punishment. During the course of hearing we had enquired from the learned
counsel for the parties as to what was the status of such proceedings. We were
told that the proceedings were lying where they were presumably because the
records of the State Bar Council and the Bar Council of India were
requisitioned here. The records shall be sent back and the proceedings,
directed to be initiated, shall now be commenced without any further loss of
time. We, however, express no opinion regarding that aspect of the matter at
. . .
. . . . . . . . . . . . . . .
. . .CJI.
. . .
. . . . . . . . . . . . . . .
. . .
. .J. ( R.C. Lahoti ) . . . . . . . . . . . . . . . . . .
. . .
. .J. ( K.G. Balakrishnan ) New Delhi; December 5, 2000.