Dhanraj Singh
Choudahry Vs. Nathulal Vishwakarmawith
[Civil Appeal No (S).
2293 of 2005]
[Civil Appeal No.
4484 of 2005]
J U D G M E N T
R.M. Lodha, J.
1.
These
two Appeals have been preferred by Advocate Dhanraj Singh Choudhary (for short,
'advocate appellant') being dissatisfied with the two orders dated October 31, 2004
passed by the Disciplinary Committee of the Bar Council of India. By the
principal order, the advocate appellant has been suspended from practice for a period
of one year from the date of communication of the order.
2.
On
the complaint made by the respondent-Nathulal Vishwakarma against the advocate appellant
to the Bar Council of Madhya Pradesh, Jabalpur, the matter was referred to the
Disciplinary Committee of the State Bar Council.
The allegation of professional
mis-conduct against the advocate appellant is that in the sale deed dated
November 3, 1999 executed by Jitender Singh Bakna in favour of Smt. Suchi Gupta
concerning sale of property House No. 423 situate in Nursing Ward, Jabalpur, which
was attested by the advocate appellant, it has been stated that on the Western side
of the saleable property one shop adjacent to Sahara lounge presently in
occupation of the complainant has already been transferred by the vendor to the
advocate appellant by giving him the ownership right, although vendor's father Sardar
Desh Singh Bakna had entered into an agreement to sell the suit property to the
complainant on November 15, 1991 and the vendor's father has already received
an amount of Rs. 2,00,000/- towards the sale consideration.
The complainant
alleged that he had already filed a suit for specific performance of the agreement
dated November 15, 1991 which was pending and was within the knowledge of the
advocate appellant. As a matter of fact, the advocate appellant had instituted a
suit on behalf of Sardar Desh Singh Bakna against the complainant for eviction
of the said shop showing the complainant as a tenant of Sardar Desh Singh
Bakna.
3.
3.On
notice, the advocate appellant filed reply to the complaint and denied the
allegations made against him. In his reply, the advocate appellant explained the
circumstances in which the sale deed dated November 3, 1999 was executed. He
expressed his ignorance about the statement made in the sale deed dated November
3, 1999 regarding sale of shop in occupation of the complainant to the advocate
appellant by the vendor.
4.
4.On
the pleadings of the parties, the Disciplinary Committee of the State Bar Council
framed the following issues :-
a. Whether the Respondent-Advocate
purchased the property from Jitendra Singh Bhakna as described at Page No. 5 in
Sale Deed dated 3.11.99 of which the Respondent Advocate who was attesting witness?
b. Whether the Respondent
Advocate deliberately filed suit for eviction in the name of Jitendra Singh Bhakna
against the complainant although the respondent was the owner thereof as mentioned
in the sale deed dated 3.11.99?
c. Whether the respondent
advocate has been guilty of professional mis-conduct?
2. Result ?
5.
The
complainant and the advocate appellant examined themselves and also tendered documents
in support of their respective case. The Disciplinary Committee of the State
Bar Council, after hearing the parties and on consideration of the evidence
tendered by them, recorded its finding against the advocate appellant on the above
issues and held the advocate appellant guilty of professional mis-conduct. Having
adjudged the advocate appellant guilty of professional mis-conduct, the Disciplinary
Committee, State Bar Council, Madhya Pradesh, awarded punishment of reprimand to
the advocate appellant vide its order dated April 22, 2002.
6.
Not
satisfied with the order dated April 22, 2002 passed by the Disciplinary Committee,
State Bar Council, Madhya Pradesh, the complainant preferred appeal under Section
37 of the Advocates Act, 1961 (for short, '1961 Act') to the Bar Council of India.
The Disciplinary Committee of the Bar Council of India issued notice to the
advocate appellant on October 5, 2004 intimating him that the matter has been kept
on October 30, 2004.
On receipt of the notice,
the advocate appellant appeared before the Disciplinary Committee of the Bar
Council of India, which heard the appeal preferred by the complainant for
enhancement of the punishment on October 30, 2004. After the conclusion of the hearing
of that appeal, an application was filed by the advocate appellant seeking
permission to file cross-appeal and the cross-appeal was tendered.
7.
The
Disciplinary Committee of the Bar Council of India, vide its judgment dated October
31, 2004, allowed the appeal of the complainant; modified the punishment of reprimand
awarded by the Disciplinary Committee of the State Bar Council and ordered his
suspension from practice for a period of one year from the date of
communication of the order. By a separate order passed on that day, i.e.,
October 31, 2004, the cross-appeal preferred by the advocate appellant was
dismissed.
8.
Civil
Appeal No. 2293 of 2005 preferred by the advocate appellant arises from the order
of the Disciplinary Committee of the Bar Council of India whereby complainant's
appeal for enhancement of punishment has been allowed, while Civil Appeal No.
4484 of 2005 has been preferred by the advocate 6appellant aggrieved by the
order dismissing his cross-appeal as not maintainable.
9.
The
order dated October 31, 2004, whereby the advocate appellant's cross-appeal has
been dismissed by the Disciplinary Committee of the Bar Council of India, reads
as follows :- "After the conclusion of hearing of Disciplinary Appeal No. 55
of 2002, an application has been filed by the respondent- advocate seeking
permission to file a cross- appeal in the above noted appeal.
Under Section 37 of the
Advocates Act an appeal should be filed within period of 60 days from the date
of communication of the order passed by the Disciplinary Committee of the State
Bar Council. There is however no provision for filing application seeking
permission to file any appeal or cross-appeal. Therefore, the application filed
by the respondent- advocate seeking permission to file cross appeal cannot be
entertained and as such the same is liable to be rejected. The application filed
by the respondent-advocate is accordingly dismissed as not being maintainable."
10.
We
find no legal infirmity in the order passed by the Disciplinary Committee of the
Bar Council of India in not entertaining the cross-appeal preferred by the
advocate appellant.
11.
11.Section
37(1) of the 1961 Act provides for a remedy of an appeal to any person aggrieved
by an order of the disciplinary committee of a State Bar Council under Section 35
to prefer an appeal to the Bar Council of India within 60 days of the date of the
communication of the order to him. Proviso that follows sub-section (2) of Section
37 provides that the disciplinary committee of the Bar Council of India shall
not vary the order of the disciplinary committee of the State Bar Council affecting
the person prejudicially without giving him reasonable opportunity of being heard.
In the cross-appeal
preferred by the advocate appellant, it is stated that being aggrieved by the order
dated April 22, 2002 passed by the Disciplinary Committee of the State Bar
Council, Madhya Pradesh, the cross-appeal is being preferred by the respondent therein
(advocate appellant herein). As a matter of law, Section 37 of the 1961 Act does
not contemplate cross-appeal. This position is not disputed by Mr. S.B. Sanyal,
learned senior counsel for the advocate appellant.
He would, however, submit
that the advocate appellant preferred cross-objections (titled cross-appeal) within
30 days of the receipt of the notice of the appeal preferred by the complainant
and that is permissible under Order 41 Rule 22 of the Code 8of Civil Procedure,
1908 (for short, 'the Code') which is applicable to the proceedings before the
Disciplinary Committee of the Bar Council of India.
12.
We
do not agree with the submission of Mr. S.B. Sanyal, learned senior counsel for
the advocate appellant. The Code has not been made applicable as it is to the proceedings
before the disciplinary committee. Section 42 of the 1961 Act makes applicable provisions
of the Code in respect of matters contained therein while providing that the
disciplinary committee of a Bar Council shall have the same powers as are vested
in a civil court. The matters contained in Section 42 do not refer to the
appeals. Thus, the provisions contained in Order 41 of the Code, including Rule
22 thereof, have no applicability to the proceedings before a Disciplinary
Committee.
13.
Appeal
is a creature of statute. The extent and scope of an appeal is governed by statutory
provisions. Section 37 of the 1961 Act is the statutory provision for an appeal
to the Bar Council of India from the order of the disciplinary committee of the
State Bar Council. Section 39 of the 1961 Act, however, makes Sections 5 and 12
of the 9Limitation Act, 1963 applicable to the appeals preferred under Section
37 and Section 38 of the 1961 Act. There is no provision like Order 41 Rule 22 of
the Code in the 1961 Act. The cross-objections titled 'cross-appeal' preferred by
the advocate appellant being wholly mis-conceived have rightly been held to be not
maintainable by the Disciplinary Committee of the Bar Council of India.
14.
There
may not be any difficulty in treating the 'cross-appeal' preferred by the advocate
appellant as an appeal under Section 37 of the 1961 Act, but then such appeal is
hopelessly time barred. The order was passed by the Disciplinary Committee of
the State Bar Council on April 22, 2002. The advocate appellant presented his
appeal (titled 'cross-appeal') before the Disciplinary Committee of the Bar Council
of India on October 30, 2004, i.e., after more than two years. No application
for condonation of delay has been made. In this view of the matter also the
cross-appeal preferred by the advocate appellant was liable to be dismissed and
has rightly been dismissed.
15.
The
Disciplinary Committee of the State Bar Council has considered the entire material,
including the evidence of the complainant and the advocate 10appellant and
arrived at the finding that the advocate appellant was guilty of professional mis-conduct
for having attested the sale deed dated November 3, 1999 containing a statement
that the shop on the western side of the saleable property in occupation of the
complainant has already been transferred to the advocate appellant by giving
him ownership right.
The attestation of the
sale deed containing the above statement, which was apparently false to the
knowledge of advocate appellant, amounted to professional mis-conduct. The vendor-Jitender
Singh Bakna and his father Sardar Desh Singh Bakna were the clients of the
advocate appellant. As a matter of fact, the advocate appellant had filed a suit
on behalf of the vendor against the complainant seeking his eviction from the
premises for which the statement was made in the sale deed dated November 3,
1999 that the said premises in occupation of the complainant has been
transferred by the vendor to the advocate appellant.
16.
From
the material on record the professional mis-conduct of the advocate appellant is
clearly established and the Disciplinary Committee of the State Bar Council, Madhya
Pradesh, cannot be said to have committed any error in holding him guilty of
the 11 professional mis-conduct. Having held that, the Disciplinary Committee of
the State Bar Council awarded him punishment of reprimand.
Against the inadequate
punishment awarded to the advocate appellant for the proved professional
mis-conduct, the complainant preferred appeal. In that appeal, notice was issued
to the advocate appellant and in response thereto, he did appear before the Disciplinary
Committee of the Bar Council of India on October 30, 2004 and was fully heard. The
requirement of the proviso appended to Section 37(2) of the 1961 is, thus, fully
met.
17.
The
legal profession is a noble profession. It is not a business or a trade. A
person practising law has to practise in the spirit of honesty and not in the
spirit of mischief-making or money-getting. An advocate's attitude towards and dealings
with his client has to be scrupulously honest and fair.
18.
In
V.C. Rangadurai Vs. D. Gopalan and others1 Krishna Iyer, J. stated :- "Law's
nobility as a profession lasts only so long as the members maintain their
commitment to integrity and service to the community."1 AIR 1979 SC 281
19.
Any
compromise with the law's nobility as a profession is bound to affect the faith
of the people in the rule of law and, therefore, unprofessional conduct by an advocate
has to be viewed seriously. A person practising law has an obligation to maintain
probity and high standard of professional ethics and morality.
20.
In
the above backdrop, if the conduct of the advocate appellant is seen, it becomes
clear that he was privy to the following false statement recorded in the sale
deed dated November 3, 1999 :- "That on the Western side of the saleable property
one shop adjacent to the Sahara lounge having 257 sq.ft. is there and in which at
present Shri Nathu Lal Vishwakarma runs the hotel and the same has already been
transferred by the Seller to Shri Dhan Raj Singh Choudhary by giving him the ownership
right...."
21.
In
his deposition before the Disciplinary Committee, State Bar Council, Madhya Pradesh,
the advocate appellant stated that he came to know of the said fact when the complainant
had lodged the complaint against him. His explanation does not merit
acceptance. On a question put by the Disciplinary Committee to him that prior
to signing the sale deed 13dated November 3, 1999 in the form of witness why
did he not read the said document, his reply was that he did not consider it essential
to read the contents of the sale deed. Can it be believed?
We think not. It was not
only undesirable but highly unethical on the part of the advocate appellant to have
created title or at least having attempted to create title in him in respect of
the property for which litigation was pending in the court and he was representing
one of the parties in that litigation. But for his connivance with the vendor, no
such statement would have found place in the sale deed dated November 3, 1999. The
professional misconduct proved against the advocate appellant is quite grave and
serious. The question now is of the award of appropriate punishment to the
advocate appellant.
22.
Mr.
S.B. Sanyal, learned senior counsel, submitted that the incident was quite old;
the advocate appellant did not get any benefit out of the said statement made
in the sale deed and, subsequently the above statement in the sale deed has
been expunged on the agreement of the vendor and vendee. In the light of these mitigating
circumstances, the learned counsel submitted that suspension of practice for
one 14year was harsh. He appealed for reduction of the suspension period.
23.
By
order dated November 30, 2011, we directed the advocate appellant to remain
personally present on the next date of hearing. In view of that, the advocate
appellant is present before us. In addition to the circumstances pointed out by
Mr. S.B. Sanyal, learned senior counsel, the advocate appellant informed us that
he has been suffering from glaucoma in his both eyes and was not keeping good
health.
24.
We
find that the two applications, being Interlocutory Application No. 4 in Civil Appeal
No. 4484 of 2005 and Interlocutor Application No. 8 in Civil Appeal No. 2293 of
2005, have been made by the advocate appellant and the complainant jointly for
disposal of the Appeals in terms of the compromise between them. We are unable to
accede to their request. In our view the settlement with the complainant does
not mitigate or wipe out professional misconduct and must not prevent adequate
punishment to the advocate appellant. Both these applications are, accordingly,
rejected.
25.
The
punishment for professional misconduct has twin objectives - deterrence and correction.
Having 15regard to the over all facts and circumstances of the case which have
been noted above, we are of the view that if the advocate appellant is suspended
from practice for a period of three months effective from today the above objectives
would be met. We order accordingly.
26.
Both
Civil Appeals are dismissed with the modification in punishment as indicated above.
No costs.
27.
The
Registry shall send copy of this Order to the Secretary, State Bar Council, Madhya
Pradesh and the Secretary, Bar Council of India immediately.
.........................J.
(R.M. LODHA)
.........................J.
(H.L. GOKHALE)
NEW
DELHI
DECEMBER
08, 2011.
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