PROFESSIONAL ETHICS

AND

CONTEMPT OF COURT

G. M. WAGH

2018
 DETAILED SYLLABUS

UNIT I – LEGAL PROFESSION

The Legal Profession and Its Responsibilities
The legal profession, a great profession
A learned profession
Profession close to humanity
An independent profession
Gives leadership in society
Creates consequent enemies and detractors
Criticisms
That the lawyer has an over-prominent place
That the lawyer promotes disputes
That the lawyer is dishonest and untrue
The politician's antagonism
An uneconomic and unessential profession

The Equipment of the Lawyer

First Equipment, Learning and Wide Knowledge
Success in Examinations, No Good, Nor Capacity to Talk
Depth and Wide Range of Ideas Required
Moral Excellence More Important
Industry, Essential to Success
Example of Mr S. Srinivasa Iyengar
The Seven Lamps of Advocacy – An Eighth Lamp, Tact

Conduct in Court

Professional Conduct in General

Privileges of a Lawyer

Salient Features of the Advocates Act, 1961

UNIT II – DUTIES OF ADVOCATES

Duty to the Court

Duty to the Profession

Duty to the Opponent

Duty to the Client

Duty to the self

Duty to the Public and the State

2 Detailed Syllabus

UNIT III – CONTEMPT OF COURT

Contempt of Court Act, 1972

UNIT IIIA – SELECTED JUDGEMENTS ON PROFESSIONAL ETHICS AND

CONTEMPT OF COURT
Selected Judgements of the Supreme Court

UNIT IV – SELECTED OPINIONS OF THE BCI

Selected Opinions of the Bar Council of India

UNIT V – ACCOUNTANCY FOR LAWYERS

Need for Maintenance of Accounts

Books of Accounts that Need to be Maintained – Cash Book, Journal and Ledger

Elementary Aspects of Bookkeeping

Meaning, Object, Journal, Double Entry System, Closing of Accounts

The Cash and Bulk Transaction – The Cash Book – Journal Proper especially with
reference to client's accounts – Ledger, Trial Balance and Final Accounts

Commercial mathematics.
 PROFESSION AND BUSINESS

Profession is an occupation the primary object of which is to serve the society, in

contradistinction to business which is an occupation the primary object of which is to
earn profits. Law, medicine and journalism are some of the occupations which are
pursued as professions.

A professional earns money while serving the society, whereas a businessman serves the
society while he earns money. Therefore, the success of a professional is measured from
the service that he renders to the society and not from the money earned by him. On the
other hand, the success of a businessman is measured from the money earned by him,
not from the service rendered by him to the society. As such, there may be a successful
and eminent professional who may not be particularly wealthy. But a businessman who
is not wealthy cannot be called successful.

This does not mean that a businessman does not serve the society. In fact, every person
who works honestly and lawfully serves the society directly or indirectly. It also does not
mean that a professional works without earning money. There are many professionals
whose incomes are more than those of many businessmen. It is only the preference of
objects which differs. For a professional service is of preference while for a businessman
profit is of preference.

Further, every profession has a code of conduct which is of binding nature. These codes
of conduct are of statutory in nature and are administered by a statutory regulatory
body. For example legal profession is subject to the Rules on Standards of Standards of
Professional Conduct and Etiquette contained in Chapter II, Part VI of the BCI Rules.

These rules are framed by the Bar Council of India in the exercise of the powers
conferred upon it by section 49 (1) (c) of the Advocates Act, 1961 read with the Proviso
thereto. Bar Council of India is a statutory body established under section 4 of the
Advocates Act, 1961. Section 3 of the Advocates Act also establishes State Bar Councils
for different states or combinations of states.
Thus Karnataka State Bar Council is established for Karnataka. The Bar Council of
Chennai is established for the State of Tamil Nadu and the Union Territory of Pondicherry.
States of Maharashtra and Goa and the Union territories of Dadra and Nagar Haveli and
Daman and Diu come under the Bar Council of Maharashtra and Goa.

Similarly medical profession is governed by the Indian Medical Council and the rules
made by it.

These Rules relating to the codes of conduct are the statutory expression of the well
established norms of professional ethics. They are normally considered as illustrative not
exhaustive.

This does not mean that business does not have ethics. The distinction between the
business ethics and professional ethics lies in their enforceability. Business ethics are
not enforceable. In case of a professional, respective regulatory bodies are empowered to
initiate disciplinary action against the erring professional and punish him if he is found
guilty.
 LEGAL PROFESSION

The profession of law is a great profession. It is the most brilliant and attractive of all
professions. It has responsibilities, both inside and outside it, which no person carrying
on any other profession has to shoulder.

Law is a great controlling and unifying institution. It maintains law and order in the
society. If there is no law in the society, there will be chaos in the society. There will be
lawlessness.

No one can act according to his whims and fancies in the society. Law regulates the
conduct of person in the society. Towards this end law places upon each person several
duties. It also creates corresponding rights in some other person or persons in the
society. Thus, there will be rights bestowed upon a person by law, and there will be
corresponding duties imposed by the same law on another person.

Breach of duty on the part of a person necessarily amounts to violation of corresponding

right of another person. This creates a legal obligation on the part of the person who
committed the breach of duty. Law facilitates the person whose rights are violated to
enforce this legal obligation in the Courts of law. As a lay person cannot approach
Courts on his own, he needs the help of a legal professional, i.e., an advocate.

In common law countries cases are decided by the Courts through adversarial method.
In an adversarial procedure, there will be two parties to the case, each represented by an
advocate. In the Court the advocates fight against each other on behalf of their clients.
But out side the court, they may be good friends.

Therefore, Sir K. V. Krishnaswami Aiyar observes that

“It (legal profession) is composed of a body of men with a high sense of honour and
marred by far less mutual jealousy or ill will than any other.”

Justice McCardie observed that

“The spirit amongst counsel is one of generous emulation and not the spirit of embittered
and petty rivalry. The brotherhood of the Bar is a notable and felicitous fact.”

In the words of Johnson,

“a man will no more carry the artifice of the bar into the common intercourse of society,
than a man who is paid for tumbling upon his hands will continue to tumble upon his
hands when he should walk on his feet.”

SALIENT FEATURES OF LEGAL PROFESSION

Sir K. V. Krishnaswami Aiyar in his book on Professional Conduct and Advocacy

observes,
“It is, in the first place, a learned profession. … Secondly, the lawyer has to deal with the
greatest possible variety of human relations. … Thirdly, the legal profession is, amongst
all the learned professions, the most independent one.”
 Salient Features of Legal Profession 3

LEARNED PROFESSION

It is a learned profession not merely in the sense that learning is displayed in the
practice of it, but that it calls for the high and noble conduct which is a corollary and
consequence of all true learning.

As Burke observed,
“Law is a science which does more to quicken and invigorate the understanding than all
other kinds of learning put together.”

Blackstone, in the introduction to his Commentaries, spoke of legal profession as

“a science which distinguishes the criterion of right and wrong; which teaches to establish
the one and prevent, punish or redress the other; which employs in its theory the noblest
faculties of the soul, and exerts in its practice the cardinal virtues of the heart; a science
which is universal in its use and extent, accommodated to each individual, yet
comprehending the whole community.”

CONCERNED WITH HUMAN RELATIONS

The practice of the profession gives special opportunities to the advocate to equip himself
with those qualities which count for pre-eminence in society.

The practice of the profession both demands and develops the following qualities, among
others. They are, essentially the following capacities:

1. to analyse and sift facts,

2. to penetrate the inmost recesses of the human mind and to discover there the
sources of men’s actions and their true motives, and
3. to perceive and present them with directness, accuracy and force.

His genius in achieving results and his peculiar gift of mastering and disentangling
complex situations have won for the lawyer the reputation that he can achieve anything.

INDEPENDENT PROFESSION

Sir Aiyar observes that “independence of legal profession, which can never be lost sight
of, is the bed-rock upon which its claims to lead the country are based.” The term
‘independence’ is not used in the sense of ‘freedom’ here. But it is used in the sense of
fearlessness.

No member of the legal profession ever hesitates to condemn injustice or tyranny. More
than the Judge he stands for Justice as he pleads for it.
4 Legal Profession

ADVOCATES AS LEADERS IN THE SOCIETY

In the practice of the profession the lawyer has to deal with the greatest possible variety
of human relations and has his mettle constantly tried from every point. This gives
special opportunities to the lawyer to equip himself with qualities which count for pre-
eminence in society.

Advocates, in the course of his profession naturally develops a capacity to analyse and
sift facts, to penetrate the inmost recesses of the human mind and to discover there the
sources of men’s actions and their true motives, and to perceive and present them with
directness, accuracy and force. His genius in achieving results and his peculiar gift of
mastering and disentangling complex situations have won for the lawyer the reputation
that he can achieve anything.

These qualities which he possesses by education and by training make him the leader of
society as a matter of course.

As has been observed,

“No dignify of office can secure men’s respect for itself continuously unless it can show a
worthy character in those who hold it. Where judgement and a spirit of independence are
required the lawyer easily takes the lead. He exercises great influence, acquires rank and
reputation and largely contributes to the most responsible and distinguished services of
the State. Perhaps no class of men earns greater social and political distinction.”

CRITICISM OF LEGAL PROFESSION AND REPLY THERETO

This place of pre-eminence which he acquires in society creates many enemies for him.
Sir Aiyar points out that a lawyer is one of the most suspected of men. Lawyers are
looked upon ‘as defeaters of the law and mockers of its majesty’. At any time and in any
country detractors of his rank and worth are always present.

These enemies criticise legal profession and lawyers on the several grounds.

THE LAWYER HAS AN OVER-PROMINENT PLACE

In the opinion of many outside the profession, the lawyer holds a much too prominent
place, more prominent than the service that he renders to society deserves. Very mixed
feelings lead to this complaint. The critics feel that the lawyer demands too high a value
for his services.

However, the critics also admit that that valuation is accepted by those to whom the
services are rendered. It is the persons who seek a lawyer’s service who are the best
persons to value it. The critics who are not a part of the situation cannot properly assess
it. Therefore, the estimation of the persons who avail the service of a lawyer should be
preferred to that of the critics.
 Criticism of Legal Profession and Reply Thereto 5

THE LAWYER PROMOTES DISPUTES

A belief sometimes expressed is that lawyers promote strife. That is an absolute untruth.
The function of the legal profession is not to create disputes. But when disputes arise
lawyers are called in to settle them, and in truth, They are the greatest peacemakers.
The person most ready to promote a compromise will be the lawyer himself. Law is
concerned only with preventing disputes. Most of our enactments, for instance, are
intended to stop the creation of new disputes.

THE LAWYER IS DISHONEST AND UNTRUE

Next criticism against lawyers is that the practice of the profession is inconsistent with a
strict sense of moral obligation and involves an amount of dishonesty and untruth on
the part of the practitioner.

This again is a misconception. The art of advocacy, which is assumed to be the art of
making ‘the worse appear the better’, is one which to many lay minds appears
incompatible with truth and justice.

Any profession can be practised well or ill. It is the professional who may be honest or
dishonest, not the profession. To judge the honesty of the profession, one should
consider an average professional, and not the worst of them.

THE POLITICIAN’S ANTAGONISM

Then, the politicians think that there is rivalry, even antagonism, between himself and
the lawyer. This belief is as unfounded as it is unfortunate. Both are engaged in the
same task of securing justice and freedom for the community.

In their activities, they supplement each other. The task of both is that of reconciling
freedom with compulsion. This situation is well expressed by Cicero in his celebrated
paradox,
“We are slaves of the law that we may be free”.

The freedom of the individual to enable him to give of his best to the country, and the
compulsion which is necessary for the very existence of the community in which the
individual has to enjoy and exercise his freedom.

LEGAL PROFESSION IS UNECONOMIC AND UNESSENTIAL

Another criticism is levelled against the legal profession that it does not serve to add to
the wealth or economic prosperity of a nation. That it merely helps to transfer wealth
from one person to another inside a country, and therefore, the lawyer is not an
essential member of society.
6 Legal Profession

There is, however, no doubt that the profession of law is an essential one in a complex
society, that those who follow it are good citizens performing a duty which is essential, if
the machine of civilization is to move. 'There can be no civilization without order; there
can be no order without law.

As Justice McCardie says,

“The alternative to the reign of law is the chaos of the jungle”.

A litigant pleading his own case, a Court without bar supporting and assisting it and a
Judge set to try causes and administer legal rights between party and party without the
aid of professional advocates are unimaginable.

As Sharswood says,
“It is one of the most striking advantages of having a learned profession, who engage as a
business in representing parties in courts of justice, that men are thus brought nearer to
a condition of equality, that causes are tried and decided upon their merits, and do not
depend upon the personal characters and qualifications of the immediate parties.”
 THE EQUIPMENT OF THE LAWYER

In the second chapter of his book “Professional Conduct and Advocacy” Sir K. V.
Krishnaswami Aiyar discusses ‘the equipment of the lawyer’. These are nothing but the
essential skills and qualities an advocate should possess to become successful at the
Bar.

In addition to his own views of the subject, Sir Krishnaswami Aiyar also mentions the
Seven Lamps of Advocacy described by Sir Edward Perry in his book of the same name.
After discussing the seven lamps of advocacy in brief, Sir Aiyar adds his own, eighth
lamp of advocacy, namely tact.

In general there are three things which matter the most in the profession of an advocate:
knowledge, character and hard work. Without these three one can hardly become
successful in legal profession.

FIRST EQUIPMENT, LEARNING AND WIDE KNOWLEDGE

The first essential is equipment in legal learning. The learning must b accurate and the
knowledge gathered from learning must be wide. Without such a learning one cannot
have confidence to face the challenges of the legal profession.

Many lawyers feel that that a lawyer is not a library of law, that he has only to find the
law, and that he can always do that. But to know where to find the right law, one needs
the basic knowledge. Therefore, Sir Aiyar advices prospective advocates to have ‘wide’
knowledge and not ‘deep’ knowledge. Deep knowledge may be good for jurists and law
teachers, but what an advocate or a judge needs is a wide knowledge.

Sir Aiyar quotes King George who once observed that when he encountered a legal
problem he asked a layman about the applicable law. The layman did not know the law
applicable to the problem, nor did he know where to find that law. Then the King asked
the same question to a lawyer. The lawyer also did not know the exact law applicable to
the King’s problem, but he knew where to find that law.

In other words, everyone can read law and know it. But what distinguishes a lawyer
from a layman is the knowledge of the source of law – knowledge about which law is
applicable to a case and where and how to find it.

Sir Aiyar observes that to learn law, one must know law, which may appear paradoxical.
Firstly, without the basic knowledge of law one cannot understand the real question of
law involved in a given case. Secondly, he cannot find what he wants unless he knows
where to find it, which again requires that one must possess sufficient knowledge if law
for that purpose.

Sir Aiyar further observes that wide knowledge of law gives the courage necessary for an
advocate to survive in the profession. ‘The old saying that ‘knowledge is power’ is not as
true as in legal profession. Conversely, if an advocate lacks courage, it is because of the
imperfect knowledge.
8 The Equipment of the Lawyer

SUCCESS IN EXAMINATIONS, NO GOOD, NOR CAPACITY TO TALK

Scoring marks in the examination is one thing, and having knowledge essential for
success in profession is another thing. One must not be confused with the two. What is
necessary to score good marks in the examination is only information about law, while
to be successful in profession mere information of law is not sufficient. One must have
profound understanding of law. Therefore, we often find that students who score less
marks in the examination can be more successful as advocates. One who has gathered
good information of law and also has made efforts to understand law is always
successful, whether it be examination or profession.

Similarly, another misconception is that one who talks too much or argues too much
resembles a lawyer. Eloquence is mistaken to be the sole quality of lawyer. No doubt, an
advocate must be eloquent, but there is a marked difference between ordinary eloquence
and legal eloquence. This is because legal language is different from ordinary language,
and legal reasoning is different from ordinary logic. Hence, necessarily legal eloquence
has to be different from ordinary eloquence. A lawyer’s argument must be within four
corners of law. This further means that for a lawyer it is important to know what he
should say, but it is perhaps more important for him to know what he should not say.

Therefore, one should not suppose that because one can talk well on a platform, he will
become a successful lawyer. Ability to talk fluently is only an aid to success. But that, by
itself, is no guarantee of success nor is it a condition precedent for success in the legal
profession. To be a great and successful lawyer one need not begin by being a great
speaker. What is required is power of argument and that can be acquired by constant
habit and exercise.

DEPTH AND WIDE RANGE OF IDEAS REQUIRED

To be able to speak effectively, one must have good ideas. Where there are ideas, words
will flow. Socrates said to the young Greeks that if they had something to say they would
know how to say it. What is wanted is ideas, a wealth of fresh ideas, a world of
information and a ready capacity to recall to mind what you know and put it to use.

MORAL EXCELLENCE MORE IMPORTANT

John Stuart Blackie says: “A man may be as brilliant, as clever, as strong and as broad
as you please and with all these, if he is not good, he may be a paltry fellow …”

Moral excellence is in fact an indispensable element in all forms of human greatness.

Character is vital in all professions and walks of life, and in the legal profession
particularly the maintenance of the honesty of the lawyer is a matter of the first
importance.
 Moral Excellence More Important 9

Indeed, in legal profession moral equipment is more important than intellectual

equipment. One has to be honest to the core. Only then a client will have confidence in
entrusting the stake of his life, liberty, property or reputation to the lawyer. No one may
be more harmful and dangerous to a society than an efficient but dishonest and
unethical lawyer.

In his book, Legal Ethics, G. W. Warvelle writes: “Because of the magnitude of the
interests placed in the hands of its members, the responsibilities which they assume and
the confidence with which they are entrusted, there is demanded of them in the exorcise
of their duties, an exemplification of the highest qualities of moral excellence.”

Maintaining honesty is more challenging in legal profession than elsewhere. This is

because there are many temptations and allurements before an advocate to distract him
from the path of honesty. A deliberate and conscious effort is necessary for an advocate
to be honest as well as to remain honest.

The most worthy and effective publicity available for a young lawyer, especially with his
brother lawyers, is the establishment of a well-merited reputation for professional
capacity and fidelity to trust.

Sharswood observes that no man can ever be a truly great lawyer, if he is not, in every
sense of the word, a good man. A lawyer, without the most sterling integrity, may shine
for a while but his light will soon go out in blackness of darkness. It may not within the
control of every man to be knowledgeable or intelligent, but it is in every man’s power,
with few exceptions, to attain respectability, competence, and usefulness.

Sharswood further observes that there is no profession in which moral character is so

soon established as in that of law. There is no profession in which it is subjected to
severer scrutiny by the public. Character of an advocate must not only be without a
stain, but must also be without suspicion. From the very commencement of a lawyer's
career, let him cultivate, above all things, truth, simplicity and candour. they are the
cardinal virtues of a lawyer.

INDUSTRY, ESSENTIAL TO SUCCESS

Another condition precedent for success in legal profession is hard work. It is often said
that “Industry is Fortune’s right hand”. In every walk of life one has to work hard to be
successful. This is especially true in case of legal profession, where there is no substitute
for hard work. One may have learning, one may have intellect, one may have the good
fortune to secure his first clients, but he should not believe that he can secure abiding
success without industry. In other words, success earned without hard work lives short.

As Lord Eldon put it, one must “live like a hermit and work like a horse”. To be
successful lawyer, one must not only work hard, but has to work regularly and
consistently. Therefore, it is very rare to see one becoming famous and successful within
a short time.
10 The Equipment of the Lawyer

Even for the learned profession of law, one need not be great in intellect or in learning,
but if one is a giant in industry he is likely to be a giant in the profession. Without
industry ‘the armoury of the advocate will lack weapons on the day of battle’.

EXAMPLE OF MR S. SRINIVASA IYENGAR

In testimony of his opinion that to be successful in the profession one must have wide
knowledge, thorough honesty and undying capacity to work hard, Sir Krishnaswami
Aiyar cites the example of his illustrious senior Shri Srinivasa Iyengar. For accurate and
intensive learning, for deep and wide knowledge, for a keen and powerful intellect,
original as well as subtle, he stood unsurpassed.

Born in a very rich family, Shri Srinivasa Iyengar did not have to work for earning money
for his livelihood. Any other person in his position would have been tempted to indolence
and laziness.

But Mr Srinivasa lyengar's industry from the very start was unparalleled. He practised
with Sir V. Bhashyam Iyengar, who is considered to be one of the greatest lawyers ever
seen by the Madras Bar.

His family was reputed in the Madura and Ramnad Districts, and amongst Zamindars
and Nattukottai Chettiars, and he himself was well known to the people of these areas.
Therefore, Clients flocked to him even from his earliest days. He used to sit at his table
for long hours, forgetting even his food, engrossed in his papers or his books. He would
not be satisfied with looking into textbooks alone or digests alone. He would not merely
look into the index or the contents of the relevant books but study them whole.

Sir Krishnaswami Aiyar recalls an incident where Shri Iyengar had to prepare a plaint on
a branch of the law of trusts, he studied by way of preparation the whole works of
Lewin, Godefroi, Story and others. He would not stop because he had collected ample
and unquestionable authority in his favour. His research had to be exhaustive. There
must be nothing left unexamined. That is the kind of intellectual ambition that Sir Aiyar
desired the young advocates should emulate.

As an example of his type of research, Sir Aiyar quotes another incident when he was
directed by Shri Iyengar to examine the facts of all the cases on ‘purchasers for value
without notice’. There were hundreds of cases and to find out the case most approximate
on the facts to the case they had to establish, Sir Aiyar had to read almost all of them.

Imagine the magnitude of the work to be done when most of the cases were reported in
the old English reports describing quaint forms of pleading. Sir Aiyar strongly believed
that it was neither Shri Srinivasa Iyengar’s intellect by itself nor his learning alone nor
merely his knowledge nor his brainpower, nor his influential associations that brought
him his brilliant success at the Bar, but the infinite industry of which he was capable.
 Seven Lamps of Advocacy 11

SEVEN LAMPS OF ADVOCACY

Legal profession is regarded as a noble profession. A good advocate should possess some
essential qualities and equipment. Judge Abbot parry in his book “The Seven Lamps of
Advocacy” called these important characteristics of advocacy as “seven lamps of
advocacy”.

HONESTY

Honesty means the quality of straightforwardness; freedom from deceit, cheating or

stealing and not telling lies. The best advocates of all generations have been devotees of
honesty. Example for honest character is Abraham Lincoln, who founded his fame and
success on what some called ‘preserve honesty’. The nobleness of legal profession lies in
honesty itself. An advocate should not resort to illegal and unethical practices. He
should not do any act which will lead to professional misconduct. He should disclose the
real facts and legal profession to his clients frankly. Honesty, integrity and character are
inseparable. These there virtues together are essential for the success of an advocate.
The great sages of law had sucked the law from the breasts of knowledge, honesty,
gravity and integrity.

COURAGE

Courage is the quality that enables a person to control fear in the face of danger, pain,
misfortune, etc.; an advocate must possess courage. He should face the pressures from
outside with courage. Sometimes he has to fight against State. He should not fear about
the executive and politicians. He must perform his duty to safeguard the interests of his
client. Advocacy is a form of combat, where courage in times of danger is half won battle.
Courage is as good a weapon in the forum as in the war camp, According to Charles
Hutton’s. ‘He hath in perfection the three chief qualifications of an advocate; Boldness,
Boldness and Boldness’.

INDUSTRY

Advocacy is needed a life of industry. An advocate must study his brief in the same way
that an actor studies his part. Success in advocacy is not arrived at by intuition but
through industry. Industry is the quality of being hard-working; being always employed
usefully. Lord Eldon Says, “An advocate must live like a hermit and work like a horse”.
Advocacy is an intellectual profession. Intelligence and knowledge will be sharpened with
hard-work and strenuous efforts. Advocacy is the profession which requires ‘Study’ and
‘Study’ throughout the career. An advocate must know about every trade. He must
acquire the knowledge of every field. He must learn about all professions. Industry
brings a good fame and name to an advocate. Law changes day-to-day. To acquire up to
12 The Equipment of the Lawyer

date knowledge an advocate must refer international and national journals, reference
books of his library and the bar library. He has to work hard like a spider to the benefit
of his client.

WIT

Wit means clever and humorous expression of ideas; liveliness of spirit. Wit flows from
intelligence; understanding and quickness of mind. Wit lessens the work load of an
advocate. It relaxes his mental strain. Often the wit of an advocate will turn a Judge
from an unwise course, where Judgment, or rhetoric would certainly fail. The lamp of wit
is needed to lighten the darkness of advocacy.

ELOQUENCE

The success of an advocate depends upon his eloquence. Eloquence means fluent
speaking and skilful use of language to persuade or to appeal to the feelings of others.
Fluent speaking impresses the listener. As advocate must be fluent, skilful in using
appropriate words to impress the Court. Eloquence attracts the attention of the listener.
Eloquence is related to the art of oratory. ‘Eloquence of manner is real eloquence’ and
there is a physical as well as psychological side to advocacy.

JUDGEMENT

Judgement is an intellectual capacity, ‘the inspiration which enables a man to translate

good sense into right action’. In judgement one has to estimate, consider and form an
opinion about the issues with good sense and ability. An advocate could be in a position
to judge the merits and demerits of the case on hearing the brief and seeing the
document. He should inform his client the legal position openly after judging the issues.
Here judgement is not ‘giving the decision of the case by the Judge in the Court’.

Judgement means the study of the case in deep by considering all shades of the
consequences. In nothing does the lawyer more openly exhibit want of judgement than
in prolixity. Judge Abbot Parry has referred to judgement as one of the seven lamps; but
he refers to it essentially as an intellectual capacity, ‘the inspiration’ which enables a
mean to translate good sense into right action e.g. ‘seeing the right point of his case’ and
the like.

FELLOWSHIP

Fellowship means the membership in friendly association or companionship. Fellowship

is exactly like great public schools, the boys of which have grown older, and have
exchanged boyish for manly objects. Though the advocates are opponent parties before
the bench but not enemies with each other. Their conflict ends as they come out of the
 Seven Lamps of Advocacy 13

door steps of the Court. Daniel Webster says, “Lawyers on opposite sides of a case are
like the two parts of shears, they cut what comes between them, but not each other”.
There is no discrimination of age, ability, experience and riches etc. between the
advocates. All are equal. Courts give them all equal respect. Among advocates, there is
just the same rough familiarly, the general ardour of character, the same kind of public
opinion expressed in exactly the same blunt, unmistakable manner. By keeping the
lump of fellowship burning, advocates encourage each other by sharing the knowledge to
walk in the light of the seven lamps of advocacy.

TACT

K. V. Krishnaswamy Aiyer, in his book “Professional Conduct and Advocacy” adds one
more lamp i.e. tact. Tact means handling people and situations skilfully and without
causing offence. An advocate must be in a position to tackle and win his client, opponent
party, opponent advocate in a smoother way. Many people of unequal ability have failed
for want of tack. An advocate should not quarrel with Court or loose temper over trifle
things in the Court and outside. Men of unquestioned ability have suffered for
quarrelling with the tribunal or for standing on their dignity over trifles, for getting their
clients, or for losing their tempers; they are men of parts but more properly refers to the
human side of putting into action the result of one’s judgement.
 DUTIES OF AN ADVOCATE

The profession of advocacy is mainly related to the society rather than an individual. In
the pursuit of their profession, advocates play different roles either simultaneously or
otherwise. An advocate is an officer of the Court. He is a representative of his client. He
is the member of the profession and of the society. He is a citizen of the country.
Therefore it has multitude of duties which may be categorised as under:

1. Duties towards Courts

2. Duties towards clients
3. Duties towards the profession
4. Duties towards the State and society
5. Duties towards the colleagues
6. Duties towards opponent
7. Duties towards self

DUTIES TOWARDS COURTS

Advocate is an officer of the Court. ‘An officer of the Court’ means any person who has
an obligation to promote justice and effective operation of the judicial system, including
judges, the advocates who appear in Court, bailiffs, clerks and other persons. As officers
of the Court advocates are trusted by the Courts. Any statement made by an advocate is
believed and acted upon by the Courts without verification. Therefore, advocates have an
absolute ethical duty to tell judges the truth, including avoiding dishonesty or evasion.

Advocate is also a counsel to the Court. He has to assist the judges in arriving at a
decision in a just and expeditious. Quality of most of the judgements reflect the quality
of the arguments presented before the Court by the advocates in that case. An advocate
has a limited number of cases and he can devote more time to prepare the cases. Judges
have many cases and, therefore, cannot spend enough time in preparing the cases. If the
advocates prepare the cases well and present before the Court, the judgement will be of
a better quality.

The following are some of the duties of an advocate towards the Court.

1. Duty of Respect 8. Duty to Control Temper in the Court

2. Duty Not to Malign a Judge
3. Duty to Attend Throughout Hearing
4. Duty to Attend to Receive Judgement
5. Duty Not to Exhibit Familiarity
6. Engaging Relations of Judges
7. Duty Not to Argue Privately
9. Duty Not to Interrupt Unnecessarily
10. Duty Not to Repeat Arguments
11. Duty not to Mislead
12. Duty Not to Plead False Facts
13. Duty to Speak Loudly
14. Duty to be in Attendance
 Duties Towards Courts 15

1. Duty of Respect: An advocate has to maintain a respectful attitude towards the

Courts and legal system, bearing in mind that the dignity of the judicial office is
essential for the survival of a free community. If people lose respect and confidence
in our legal system and judiciary, they will resort to self help. This will affect the law
and order in the society.

2. Duty Not to Malign a Judge: Every advocate has a duty towards improving the
legal system and keeping it efficient. Therefore, an advocate should not make
adverse comments about Judges and judiciary in the public. Whenever there is
proper ground for serious complaint against a judicial officer, it is the duty of the
concerned advocate to submit such grievance to proper authorities, instead of
discussing it publicly.
3. Duty to Attend Throughout Hearing: It is the duty of an advocate that when he
has started on the hearing of a case, he should attend to it throughout. He cannot
leave the Court, placing someone else in charge of the case, unless he has taken the
permission of the Court to do so.
When, however, an advocate has cases in different Courts, coming up for hearing at
the same time, he has the right to decide which case deserves his personal attention
and no Judge can compel an advocate to conduct the case before him, rather than
another, when the advocate has made adequate arrangements for its conduct.
4. Duty to Attend to Receive Judgement: It is a courtesy due to the Court as well as
the duty of an advocate towards the Court that he should be present in the Court to
take judgement when it is being pronounced. If he cannot attend personally, he
must at least arrange that he is properly represented at that time. It is possible that
the Judge may desire to verify some fact or it may be that some slight error creeps
in which the advocate or his representative could set right. Judges have to deliver
judgements in the presence of parties or their representatives who must necessarily
be present to receive them.
5. Duty Not to Exhibit Familiarity: An advocate should not exhibit familiarity with
the Judge in or outside the Court. He should never try to exploit his friendship or to
take undue advantage of the tribunal. Some advocates seek to create in the minds
of clients a belief that they have a ‘pull’ with particular Judges. Such a practice can
bring discredit to an innocent and honourable Judge.
An advocate who attempts to take improper advantage of social or friendly relations
with a Judge is unworthy of his profession and is not the type of man who is likely
to enjoy the confidence of his colleagues or to attain to any degree of eminence at
the Bar.

6. Engaging Relations of Judges: There is a wrong tendency among many litigants to

try to engage an advocate who is the relative of the Judge before whom they have a
case. This is done with a hope that this will get them a favourable judgement. It is
the duty of an advocate to discourage such a tendency. An advocate should not
appear before a Court or Tribunal where a close relative is a member.
16 Duties of an Advocate

7. Duty Not to Argue Privately: An advocate should avoid private talks with a judge
relating to a pending case. Such discussions deprive the judge of an opportunity of
hearing both the sides to a case, and thereby he is prevented from arriving at a just
decision in the case. In a wider sense, it is the duty of an advocate of not influencing
the decision of a Court by any illegal or improper means.

8. Duty to Control Temper in the Court: An advocate should never display temper in
or outside Court because of an adverse ruling or decision. The temptation to show
disappointment, to be sharp in retort and impatient in manner, will be strong. But
it should be remembered that it is highly unprofessional to yield to it.

9. Duty Not to Interrupt Unnecessarily: An advocate should not unnecessarily

interrupt counsel on the opposite side. Interruption is permissible to correct an
erroneous statement of fact or to mention a preliminary objection. An advocate may
also object to shut out irrelevant evidence. Otherwise interruption is improper and
two can play at the game.

10. Duty Not to Repeat Arguments: An advocate owes a duty to the court not to
repeat yourself to the annoyance of the Judge. He must make every attempt to make
his case clear to the Judge, but he must not repeat arguments without limit merely
because the Judge does not agree with him. The advocate's habitual belief that he
has not said enough and his never-failing tendency to talk ad infinitum must be
checked.

11. Duty not to Mislead: To not conduct a prosecution in such a manner as to

knowingly secure the conviction of an innocent person.

12. Duty Not to Plead False Facts: To conduct himself as not merely a mouthpiece of
the client, but an officer of the Court. The advocate should dissuade the client from
using unfair means and should refuse to represent a client who persists in use of
such means.

13. Duty to Speak Loudly: It is the duty of an advocate to make himself clear to the
Court. For this he has to speak loudly, clearly and slowly. Nothing annoys a Judge
more than having to strain to hear what counsel is saying.

14. Duty to be in Attendance: An advocate should never make a Judge wait for him.
An advocate should always be in attendance and readiness. he may have a case in
the Court which in all probability will not be reached. But that does not mean that
the advocate can absent himslef from court. He will not only be failing in his duty to
the Court if he is absent when by some unexpected turn of events his case is called,
but he will also be endangering the interests of his client.

DUTIES TOWARDS CLIENTS

An advocate is a representative of his client. Whatever the advocate does in the Court
and also outside the Court as a representative of the client binds the client.
 Duties Towards Clients 17

Further, the relationship between an advocate and his client is of utmost good faith.

Therefore, an advocate has several duties towards his client, some of which are,

1. Duty not to Refuse Brief

2. Duty to Remember It is the Only Case to Him

3. Duty of Disclosure of Advocate’s Relation to Case or Parties

4. Duty Not to Appear Where Interest may Conflict

5. Duty to uphold Client’s Interest

6. To be Diligent in Handling the Client’s Matters

7. To Ensure Confidentiality of Facts Disclosed by the Client

8. To Not Take Instructions from Any Person Other Than the Client

9. To Keep Accurate Accounts of the Client’s Money Entrusted to Him

1. Duty not to Refuse Brief: An advocate has duty not to accept a brief where the
client is able to pay the fee and no conflict of interest or other reasonable
justification exists.

This also entails a duty not to not withdraw from an engagement except with
sufficient cause and reasonable notice and to refund unearned fee upon such
withdrawal.

2. Duty to Remember It is the Only Case to Him: An advocate has several cases
and Court proceedings are routine to him. An advocate knows very well when to
take the cases seriously and when to treat a case as a routine matter. But most of
the clients have only one case and Court proceedings are special to them. An
advocate should not appear to be casual to the clients, which will cause worry in
their minds.

3. Duty of Disclosure of Advocate’s Relation to Case or Parties: In some cases the

opponent may be an earlier client of the advocate. It is the duty of an advocate to
not appear for the opposite party in the same matter after withdrawing from an
engagement.

However, in some cases, the fact may come to the knowledge of the advocate at a
belated stage. In some cases a new party may be arrayed in a litigation. In such
cases and others where the advocate has any relation to the subject matter of the
case or its parties, the same has to be disclosed to the client. It is left to the client to
decide whether the case should be entrusted to the advocate or not.

4. Duty Not to Appear Where Interest may Conflict: To not accept brief where there
is a conflict of interest with the client unless a frank disclosure has been made to
the client about such conflict.
18 Duties of an Advocate

This also entails a duty not to appear in a matter where the advocate may be a
witness.

5. Duty to uphold Client’s Interest: To fearlessly to uphold the interests of his client
by all fair and honourable means without regard to any unpleasant consequences to
himself or any other. He is to defend a person accused of a crime regardless of his
personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to
the law which requires that no man should be convicted without adequate evidence.

6. To be Diligent in Handling the Client’s Matters: The relationship between an

advocate and his client is one of uberrimae fedie (utmost confidence), in other
words, a fiduciary relationship. The client, therefore, follows any advice that is given
by the advocate without questioning the same. This imposes a duty on the advocate
to act diligently.

It is a duty of an advocate to tender the best legal advice according to his ability to
the client.

7. To Ensure Confidentiality of Facts Disclosed by the Client: As the relationship

between the advocate and his client being a fiduciary relationship, the client reveals
all the information to the advocate. Some of this information is of very personal and
intimate nature. Such information shall be kept confidential by the client.

Most of the other information, though not be of such confidential nature, may have
to be kept confidential. This is because, publicity of such matter may affect the case
adversely.

This is a part of the general duty of an advocate to not do anything whereby he

abuses or takes advantage of the confidence reposed in him by his client.

8. To Not Take Instructions from Any Person Other Than the Client or His
Authorized Agent:

9. To Keep Accurate Accounts of the Client’s Money Entrusted to Him and to

Provide Copies of Such Accounts: Advocates receive money from their clients
towards expenses of the case including money for the payment of Court Fees. An
advocate may also receive monies from the opposite party, Court or any other
agency, as a representative of the client. It is the duty of an advocate to immediately
intimate the client of any payment received on behalf of the client.

The above mentioned monies are client’s monies, held by the advocate as a
representative of the client. They are not part of the fees. The monies or any part of
the monies do not belong to the advocate. Therefore, the advocate has to keep
proper account of the monies held by him on account of the client and disclose the
same to the client when demanded.
 Duties Towards the Profession 19

DUTIES TOWARDS THE PROFESSION

An advocate is a member and part of the legal profession.

As a part of the profession, the actions of an advocate become the actions on the part of
the profession. The standards of the professional conduct depend on the conduct of
individual advocates.

As a member of the profession, people outside the profession will look at him as a
representative of the profession. Whatever he does, good as well as bad, will be
attributed, not the advocate personally, but to the legal profession. Therefore, an
advocate has to be careful in what he does as an advocate, as well as what he does
publicly out side the profession.

Sir Krishnaswami Aiyar gives the following advices to junior advocates in respect of their
duties towards profession:

1. Keep up the best traditions of the Bar.

2. Never be a party to the lowering of standards.

3. Do not pursue your profession in a spirit of competition and rivalry with your
brethren.

4. Do not underbid.

5. Do not keep out a brother practitioner.

6. Do not indulge in scandal-mongering about a brother lawyer.

7. Do everything to encourage the spirit of comradeship and brotherhood.

8. Always be prepared to subordinate your personal interests to those of the

profession.

9. Treat your seniors with respect and show sympathy and kindness to your juniors.

10. Never refrain from giving help to a brother member or generously acknowledging
help given by him.

DUTIES TOWARDS COLLEAGUES

1. To not advertise or solicit work and to not indicate special positions, expertise, etc.
in name plates, name boards, stationery, etc.

2. To not facilitate unauthorized practice of law.

3. To not take an unreasonably low fee where the client can afford to pay

4. To not accept an engagement in a matter where another advocate has already been
engaged except with his consent or permission of the court
20 Duties of an Advocate

5. To help juniors and acknowledge help given by seniors.

DUTIES TOWARDS OPPONENTS

An advocate has duties even towards his opponents.

1. Duty to Make Communications Only Through the Opposite Party’s Advocate

2. Duty to Carry Out Promises Made to the Opposite Party

1. Duty to Make Communications Only Through the Opposite Party’s Advocate:

An advocate shall not in any way communicate or negotiate upon the subject matter
of controversy with any party represented by an advocate except through that
advocate.

2. Duty to Carry Out Promises Made Even Where They are Not Reduced in
Writing: An advocate shall do his best to carry out all legitimate promises made to
the opposite party even though not reduced to writing or enforceable under the
rules of the Court.

DUTIES TOWARDS THE STATE AND SOCIETY

1. Duty to facilitate legal education, training of young lawyers and research in legal
discipline

2. Duty to render legal aid to those in need.

DUTIES TOWARDS SELF

1. Duty to Maintain Self-respecting Independence

2. Duty to Maintain Dignified Relations with Clients

3. Duty Not to Agree to Play a Part Subordinate to the Client

4. Duty to Avoid Controversy About Fees With Client

5. Duty to Reject Excess Briefs

 MISCONDUCT

As law is a profession, an advocate is expected to follow the rules of professional ethics.

These rules of conduct are not only illustrative but are binding on advocates. Any
conduct of an advocate which is at variance with these rules amount to misconduct,
which will be dealt with the Bar Councils in accordance with the provisions of Advocates
Act.

In short, misconduct is breach of duty by an advocate. Misconduct may be classified as:

1. Professional Misconduct; and

2. Other Misconduct

depending upon the nature of duty beached.

PROFESSIONAL MISCONDUCT

If the misconduct is committed while discharging the functions as an advocate, it is

called professional misconduct. It consists mainly of breach of duties towards the Court
and duties towards clients. It may also include breach of duties towards colleagues and
opponents.

Some of the examples are: negligence in instituting or conducting a case, failure to

account for client’s money, withholding of client’s documents, misleading or cheating the
client, disregard of client’s interest, withdrawal from case without sufficient reason,
misguiding Courts, trying to influence the Judge, making scandalous allegations against
the Judge, etc.

OTHER MISCONDUCT

If the misconduct is committed while acting in his individual, it is called other

misconduct. It consists mainly of breach of duties towards the profession. It may also
consist of breach of duties towards self, such as, acting in a dignified manner.

Some of the examples are: conduct unbecoming of an advocate, lowering dignity of

profession, conviction for offence involving moral turpitude, etc.
 RIGHT TO PRACTICE AND PRIVILEGES OF ADVOCATES

The expression ‘right to practice’, in context of the legal profession refers to the exclusive
right of persons enrolled as advocates to engage in practice of law before courts and
tribunals. In Re Lily Isabel Thomas1 the Supreme Court equated “right to practice” with
“entitlement to practice”.

This right enjoys protection at two levels:

1. General Protection under the Constitution of India

2. Special Protection under Advocates Act, 1961

GENERAL PROTECTION

Art. 19(1)(g) of the Constitution of India protects the right of individuals to practice
professions of their choice. As members of the legal profession, advocates partake in this
right along with members of other trades, occupations and professions.

SPECIFIC PROTECTION

Sec. 30 of the Advocates Act, 1961 confers on persons whose name is enrolled in the
registers of State Bar Councils the right to practice before any court or tribunal in India
including the Supreme Court. This section has been recently made effective through a
notification issued by the Central Government.

Sec. 29 of the Advocates Act makes the right of practice an exclusive right and precludes
all persons other than advocates from practising law.

Art. 19(1)(g) gives an advocate right to practice subject to reasonable restrictions, while
sec. 19 of the Advocates Act gives an advocate an exclusive right to practise.

1 1964 CriLJ 724.

 RESTRICTION ON OTHER EMPLOYMENTS

Rule 48 of the BCI Rules on Standards of Professional Conduct provides that an

advocate shall not personally engage in any business. But he may be a sleeping partner
in a firm doing business. However, the nature of the business is not inconsistent with
the dignity of the profession, in the opinion of the concerned State Bar Council,.

Rule 49 provides that an advocate may be Director or Chairman of the Board of

Directors of a company with or without any ordinarily sitting fee. But none of his duties
should be of an executive character. An advocate shall not be a Managing Director or a
Secretary of any company.

Rule 50 prohibits an advocate from taking up a full-time salaried employment of any

person, government, firm, corporation or concern, so long as he continues to practise. If
an advocate takes up such a full-time employment, he shall, intimate the fact to the Bar
Council on whose roll his name appears. His practice will be suspended by the SBC.
This is called ‘voluntary suspension of practice’ (VSP). The advocate shall thereupon
cease to practise as an advocate so long as he continues in such employment. Once he
retires, or otherwise leaves the employment, he may again intimate the SBC and the
suspension of his practice will be lifted. Thereupon, the advocate will be able to practise
again.

Rule 51 permits an advocate who has inherited, or succeeded by survivorship to a family

business to continue it. He may also continue to hold a share with others in any
business which has descended to him by survivorship or inheritance or by will. However,
he may not personally participate in the management of such businesses.

Rule 52 permits an advocate to review Parliamentary Bills for a remuneration, edit legal
text books at a salary, do press-vetting for newspapers, coach students for law
examination, set and examine question papers.

An advocate may also engage in broadcasting, journalism, lecturing and teaching

subjects, both legal and non-legal. But he has to do these as part-time activities.
Further, he cannot participate in advertisement of these activities

Rule 53 permits an advocate to accept any part-time employment subject to the

following conditions:

1. He has to obtain the consent of the State Bar Council for undertaking the
employment.

2. In the opinion of the State Bar Council,

(a) The nature of the employment does not conflict with his professional work

(b) The nature of the employment is not inconsistent with the dignity of the
profession.

3. The employment shall be subject to such directives if any as may be issued by the
Bar Council India from time to time.
 PROFESSIONAL CONDUCT – CONDUCT IN COURT

GENERAL

Haste to be avoided

Maintain calmness

Do not interrupt Judge or opponent – Inopportune interruption

Do not argue across the Bar Or contradict Judge

Answer directly

When not to argue

Do not lose temper if Judge disagrees

Present best point first

Look Judge in the face

Do not imagine Judge has prior knowledge

Do not narrate contents of documents and depositions from memory

Quote chapter and text

Cite slowly

No loudness or assertion

Shun inaccurate expressions

Employ correct language

Employ language of judgements

Leave Judge to formulate the point- Do not press doubtful points

Assessing facts at proper value

Mode of citing decisions

Distinguishing decisions

Change of battle-ground

Do not conceal adverse points

SPECIAL TO THE TRIAL COURT

Deplorable absence of correct procedure in opening cases

How to open a case

Overprove your case

Guard against Judge being too readily favourable

 Special to the Trial Court 25

Criminal trials

SPECIAL TO THE APPELLATE COURT

Difference in scope between High Court and mofussil court

Scope of appellant's arguments

Advantages of presenting both sides

Why two counsel

Method of presentation

Opening arguments

Building up a case

Trap for respondent

How respondent should act

Refer to pleadings

Documents and oral evidence

Read judgement and comment

Sometimes Judge requires judgement to be read first

Adjustment necessary

Respondent's arguments different

Broad presentation

Constructing one's own structure

Arguing for respondent more difficult

Arguing points of law

Formulation of law to be complete

Call a wrong decision wrong

Study facts of decision

Explain decision on principles

 BCI RULES ON PROFESSIONAL CONDUCT
RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT
1. Act in a dignified manner: During the presentation of his case and also while acting
before a court, an advocate should act in a dignified manner. He should at all times
conduct himself with self-respect. However, whenever there is proper ground for serious
complaint against a judicial officer, the advocate has a right and duty to submit his
grievance to proper authorities.

2. Respect the court: An advocate should always show respect towards the court. An
advocate has to bear in mind that the dignity and respect maintained towards judicial
office is essential for the survival of a free community.

3. Not communicate in private: An advocate should not communicate in private to a

judge with regard to any matter pending before the judge or any other judge. An
advocate should not influence the decision of a court in any matter using illegal or
improper means such as coercion, bribe etc.

4. Refuse to act in an illegal manner towards the opposition: An advocate should

refuse to act in an illegal or improper manner towards the opposing counsel or the
opposing parties. He shall also use his best efforts to restrain and prevent his client from
acting in any illegal, improper manner or use unfair practices in any mater towards the
judiciary, opposing counsel or the opposing parties.

5. Refuse to represent clients who insist on unfair means: An advocate shall refuse
to represent any client who insists on using unfair or improper means. An advocate shall
excise his own judgement in such matters. He shall not blindly follow the instructions of
the client. He shall be dignified in use of his language in correspondence and during
arguments in court. He shall not scandalously damage the reputation of the parties on
false grounds during pleadings. He shall not use unparliamentary language during
arguments in the court.

6. Appear in proper dress code: An advocate should appear in court at all times only in
the dress prescribed under the Bar Council of India Rules and his appearance should
always be presentable.

7. Refuse to appear in front of relations: An advocate should not enter appearance,

act, plead or practice in any way before a judicial authority if the sole or any member of
the bench is related to the advocate as father, grandfather, son, grandson, uncle,
brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece,
father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.
 2

8. Not to wear bands or gowns in public places: An advocate should not wear
bands or gowns in public places other than in courts, except on such ceremonial
occasions and at such places as the Bar Council of India or as the court may
prescribe.

9. Not represent establishments of which he is a member: An advocate should

not appear in or before any judicial authority, for or against any establishment if
he is a member of the management of the establishment. This rule does not apply
to a member appearing as “amicus curiae” or without a fee on behalf of the Bar
Council, Incorporated Law Society or a Bar Association.

10. Not appear in matters of pecuniary interest: An advocate should not act or
plead in any matter in which he has financial interests. For instance, he should
not act in a bankruptcy petition when he is also a creditor of the bankrupt. He
should also not accept a brief from a company of which he is a Director.

11. Not stand as surety for client: An advocate should not stand as a surety, or
certify the soundness of a surety that his client requires for the purpose of any
legal proceedings.

RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT

1. Bound to accept briefs: An advocate is bound to accept any brief in the
courts or tribunals or before any other authority in or before which he proposes
to practise. He should levy fees which is at par with the fees collected by fellow
advocates of his standing at the Bar and the nature of the case. Special
circumstances may justify his refusal to accept a particular brief.

2. Not withdraw from service: An advocate should not ordinarily withdraw from
serving a client once he has agreed to serve them. He can withdraw only if he has
a sufficient cause and by giving reasonable and sufficient notice to the client.
Upon withdrawal, he shall refund such part of the fee that has not accrued to the
client.

3. Not appear in matters where he himself is a witness: An advocate should

not accept a brief or appear in a case in which he himself is a witness. If he has a
reason to believe that in due course of events he will be a witness, then he should
not continue to appear for the client. He should retire from the case without
jeopardising his client’s interests.

4. Full and frank disclosure to client: An advocate should, at the

commencement of his engagement and during the continuance thereof, make all
 3

such full and frank disclosure to his client relating to his connection with the
parties and any interest in or about the controversy as are likely to affect his
client’s judgement in either engaging him or continuing the engagement.

5. Uphold interest of the client: It shall be the duty of an advocate fearlessly to

uphold the interests of his client by all fair and honourable means. An advocate
shall do so without regard to any unpleasant consequences to himself or any
other. He shall defend a person accused of a crime regardless of his personal
opinion as to the guilt of the accused. An advocate should always remember that
his loyalty is to the law, which requires that no man should be punished without
adequate evidence.

6. Not suppress material or evidence: An advocate appearing for the

prosecution of a criminal trial should conduct the proceedings in a manner that it
does not lead to conviction of the innocent. An advocate shall by no means
suppress any material or evidence, which shall prove the innocence of the
accused.

7. Not disclose the communications between client and himself: An advocate

should not by any means, directly or indirectly, disclose the communications
made by his client to him. He also shall not disclose the advice given by him in
the proceedings. However, he is liable to disclose if it violates Section 126 of the
Indian Evidence Act, 1872.

8. An advocate should not be a party to stir up or instigate litigation.

9. An advocate should not act on the instructions of any person other than
his client or the client’s authorised agent.

10. Not charge depending on success of matters: An advocate should not

charge for his services depending on the success of the matter undertaken. He
also shall not charge for his services as a percentage of the amount or property
received after the success of the matter.

11. Not receive interest in actionable claim: An advocate should not trade or
agree to receive any share or interest in any actionable claim. Nothing in this rule
shall apply to stock, shares and debentures of government securities, or to any
instruments, which are, for the time being, by law or custom, negotiable or to any
mercantile document of title to goods.

12. Not bid or purchase property arising of legal proceeding

 4

13. Not bid or transfer property arising of legal proceeding: An advocate

should not by any means bid in court auction or acquire by way of sale, gift,
exchange or any other mode of transfer (either in his own name or in any other
name for his own benefit or for the benefit of any other person), any property
which is the subject matter of any suit, appeal or other proceedings in which he
is in any way professionally engaged.

14. Not adjust fees against personal liability: An advocate should not adjust
fee payable to him by his client against his own personal liability to the client,
which does not arise in the course of his employment as an advocate.

15. An advocate should not misuse or takes advantage of the confidence

reposed in him by his client.

16. Keep proper accounts: An advocate should always keep accounts of the
clients’ money entrusted to him. The accounts should show the amounts received
from the client or on his behalf. The account should show along with the
expenses incurred for him and the deductions made on account of fees with
respective dates and all other necessary particulars.

17. Divert money from accounts: An advocate should mention in his accounts

18. Intimate the client on amounts: Where any amount is received or given to
him on behalf of his client, the advocate must without any delay intimate the
client of the fact of such receipt.

19. Adjust fees after termination of proceedings: An advocate shall after the
termination of proceedings, be at liberty to adjust the fees due to him from the
account of the client. The balance in the account can be the amount paid by the
client or an amount that has come in that proceeding. Any amount left after the
deduction of the fees and expenses from the account must be returned to the
client.

20. Provide copy of accounts: An advocate must provide the client with the
copy of the client’s account maintained by him on demand, provided that the
necessary copying charge is paid.

21. Not to convert funds in his hands into loans: An advocate shall not enter
into arrangements whereby funds in his hands are converted into loans.

22. Not lend money to his client: An advocate shall not lend money to his client
for the purpose of any action or legal proceedings in which he is engaged by such
 5

client. An advocate cannot be held guilty for a breach of this rule, if in the course
of a pending suit or proceeding, and without any arrangement with the client in
respect of the same, the advocate feels compelled by reason of the rule of the
Court to make a payment to the Court on account of the client for the progress of
the suit or proceeding.

23. Not appear for opposite parties: An advocate who has advised a party in
connection with the institution of a suit, appeal or other matter or has drawn
pleadings, or acted for a party, shall not act, appear or plead for the opposite
party in the same matter.

RULES ON ADVOCATE’S DUTY TO OPPONENTS

1. Not to negotiate directly with opposing party: An advocate shall not in any
way communicate or negotiate or call for settlement upon the subject matter of
controversy with any party represented by an advocate except through the
advocate representing the parties.

2. Carry out legitimate promises made: An advocate shall do his best to carry
out all legitimate promises made to the opposite party even though not reduced to
writing or enforceable under the rules of the Court.

RULES ON AN ADVOCATE’S DUTY TOWARDS FELLOW

ADVOCATES
1. Not advertise or solicit work: An advocate shall not solicit work or advertise
in any manner. He shall not promote himself by circulars, advertisements, touts,
personal communications, interviews other than through personal relations,
furnishing or inspiring newspaper comments or producing his photographs to be
published in connection with cases in which he has been engaged or concerned.

2. Not to use sign-board or name-plate of unreasonable size: An advocate’s

sign-board or name-plate should be of a reasonable size. The sign-board or name-
plate or stationery should not indicate that he is or has been President or
Member of a Bar Council or of any Association or that he has been associated
with any person or organisation or with any particular cause or matter or that he
 6

specialises in any particular type of work or that he has been a Judge or an

Advocate General.

3. Not promote unauthorized practice of law: An advocate shall not permit his
professional services or his name to be used for promoting or starting any
unauthorised practice of law.

4. Not to accept low fee: An advocate shall not accept a fee less than the fee,
which can be taxed under rules when the client is able to pay more.

5. Consent of fellow advocate to appear: An advocate should not appear in any

matter where another advocate has filed a vakalt or memo for the same party.
However, the advocate can take the consent of the other advocate for appearing.

In case, an advocate is not able to present the consent of the advocate who has
filed the matter for the same party, then he should apply to the court for
appearance. He shall in such application mention the reason as to why he could
not obtain such consent. He shall appear only after obtaining the permission of
the Court.
 CONTEMPT OF COURT
Words spoken or written which obstruct or tend to obstruct the administration of justice
can be contempt. Wilful disobedience to the order of a Court is also contempt of Court.

Articles 129 and 215 give the power of contempt of court to higher judiciary. The law of
contempt is governed by the Contempt of Courts Act, 1971.

The Contempt of Courts Act, 1971 has been enacted to define and limit the powers of
certain courts in punishing contempt of courts and to regulate their procedure in
relation thereto. Punishment for contempt affects two important fundamental rights of
the citizens, namely, the right to personal liberty and the right to freedom of expression.

The object of the Law of Contempt of Courts is that the orders of the Courts should be
followed by everyone including the State. The image and reputation of the judiciary must
be high. Otherwise people will take law in their own hands and anarchy will be caused.
Therefore, it is clear that the Law of Contempt of Courts is not, as many people tend to
think, protect the Courts or judiciary, but to protect the people themselves.

Therefore, it is the duty of every person to uphold and protect the dignity of Courts and
judiciary. Even a judge may be held guilty of contempt of his own Court, if he behaves in
a manner which may lower the reputation of his Court.

TYPES OF CONTEMPT OF COURT

According to the provisions of this Act, the “contempt of court” can be either civil
contempt or criminal contempt;

CIVIL CONTEMPT

Wilful disobedience to any judgement, decree, direction, order, writ or other process of a
court or wilful breach of an undertaking given to a court.

What is important to note here that there has to be ‘wilful’ disobedience. A disobedience
is ‘wilful’ when the person against whom the order is passed

1. knows that such an order is made against him by a Court; and

2. he is in a position to obey that order.

A person who is unaware of the order due to his own negligence or wilful default is
having a constructive notice of the order and cannot plead ignorance of the order.
 Types of Contempt of Court

A person who, without any fault on his part, is unaware of a judgement, order,
decree, writ, etc. made against him by a Court cannot be punished for contempt.

Similarly, a person who knows that an order is passed against him, but does not
know the contents of the order, without any fault on his part, also stands in the
same position.

Further, a person who knows about the order and also its contents, cannot be
punished for contempt if he is not in a position to obey that order. Thus a person,
who is ordered by the Court to pay a certain sum of money to another person, fails
to pay that amount to that other person due to poverty, he cannot be punished for
contempt.

Often, parties to a case, in order to avoid an adverse order against them, give an
undertaking to the Court. This normally happens in case of an interlocutory
application for temporary injunction. The party, knowing that the Court may pass
an order for temporary injunction, gives an undertaking to the Court that he will
maintain status quo. If he commits a breach of the undertaking, he will be guilty of
contempt of Court and punished accordingly.

CRIMINAL CONTEMPT

Publication (whether by words. spoken or written, or by signs, or by visible

representations, or otherwise) of any matter or the doing of any other act
whatsoever which

(i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of,
any Court;

(ii) Prejudices, or interferes or tends to interfere with, the due course of any
judicial proceeding; or

(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the

administration of justice in any other manner.

There are three ways in which criminal contempt of a Court or judiciary may be
committed.

First, by scandalizing the Court. A person may, by words. spoken or written, or by

signs, or by visible representations, or otherwise, make the people believe that the
Courts are not impartial or fair, or that they are not competent, or that they are
corrupt, etc., lower the reputation of the judiciary. This amounts to contempt.
 Contempt of Court

Second, a person may, try to influence the mind of a judge in respect of a case
before him, with an intention that the judge should become biased and must
decide the case in the manner the contemnor desires. This affects the functioning
of the Court in a fair manner. It may also affect the reputation of Court or even the
entire judiciary.

Third, a person may obstruct the administration of justice by the Courts.

Preventing a witness from going to Court to give evidence is an example of
contempt of Court by this mode. Shouting slogans in the Court, etc. may be the
other ways.

The first type of contempt mentioned above, i.e., scandalizing the Court, may be
committed by a person at any time, and it need not be with reference to any
particular case before the Court. It may, cite as example some case, but the
imputation is general.

In the other two types of contempts, i.e., prejudicing the mind of judge, and
obstructing administration of justice, may be committed only when a case is
pending before the Court. Further, they are committed in respect of some
particular case pending before the Court.

A case is said to be pending

1. if it is a criminal case,

(a) where it relates to the commission of an offence, from the date when

(i) charge-sheet is filed; or

(ii) the court issues summons or warrant

(b)in any other case, when the court takes cognizance of the matter.

2. if it is civil case, when it is instituted by the filing of a plaint or otherwise,

until it is heard and finally decided. A case is said to be finally decided, when there
is no appeal against it, either because it is the decision of the highest Court, or
where the order is appealable, no appeal is preferred within the limitation period.

Ex Facie Contempt

Criminal contempt of Court may be done in the Court as well as outside it. Where
the contempt is committed in the presence and hearing or seeing of a judge, within
the Court, the contempt is ex facie contempt, i.e., contempt on the face of the
Court. Shouting slogans, clapping, or otherwise causing disturbance in the Court
amount to ex facie contempt of Court.
 Defences

DEFENCES

1. INNOCENT PUBLICATION AND DISTRIBUTION OF MATTER (S. 3)

Innocent publication and distribution of matter does not amount to contempt of

Court. A person shall not be guilty of contempt of court on the ground that he has
published any matter which might amount contempt of Court by prejudicing the
judge or interfering with justice, if

(a) at the time of the publication he had no reasonable grounds for believing that
the proceeding was pending;

(b) at the time of publication the proceeding was not pending;

(c) at the time of distribution of the objectionable material he had no reasonable

grounds for believing that it contained or was likely to contain any such matter:

Provided that this sub-section shall not apply in respect of the distribution of
any publication which is:

(i) a book or paper printed or published in contravention of sec. 3 of the Press

and Registration of Books Act, 1867;

(ii) a newspaper published in contravention of sec. 5 of the said Act.

2. FAIR AND ACCURATE REPORT OF JUDICIAL PROCEEDING (S. 4)

A person shall not be guilty of contempt of court for publishing a fair and accurate
report of a judicial proceeding or any stage thereof.

3. FAIR CRITICISM OF JUDICIAL ACT (S. 5)

A person shall not be guilty of contempt of court for publishing any fair comment
on the merits of any case which has been heard and finally decided.

4. COMPLAINT AGAINST OFFICERS OF SUBORDINATE COURT (S. 6)

A person shall not be guilty of contempt of court in respect of any statement made
by him concerning the presiding officer of any subordinate court if the following
conditions are satisfied:
 Contempt of Court

1. The statement must be made in good faith;

2. The statement must be made to

(a) any other subordinate court, or

(b) the High Court, to which it is subordinate.

5. PUBLICATION RELATED TO IN CAMERA PROCEEDINGS (S. 7)

Publication of information relating to proceedings in chambers or in camera not

contempt where the publication is a fair and an accurate report of such in camera
(sitting in chambers) judicial proceeding.

Exceptions
1. (a) Where the publication is contrary to the provisions of any enactment for the
time being in force;

(b) Where the Court, on grounds of public policy or in exercise of any power
vested in it, expressly prohibits the publication of all information relating to
the proceeding or of information of the description which is published;

(c) Where the Court sits in chambers or in camera for reasons connected with
public order or the security of the State, the publication of information
relating to those proceedings;

(d) Where the information relates to a secret process, discovery or invention

which is an issue in the proceedings.

2. Where the court has expressly prohibited the publication thereof

(a) on grounds of public policy,

(b) for reasons connected with public order or the security of the State, or

(c) on the ground that it contains information relating to

(i) a secret process,

(ii) discovery or invention, or

(iii) in exercise of any power vested in it.

PROCEDURE IN CONTEMPT CASES

LIMITATION (S. 20)

Limitation for initiating action for contempt is 1 year.

 Procedure in Contempt Cases

JURISDICTION (SS. 10, 11)

Every High Court has the jurisdiction to deal with the cases of contempts of

1. itself, and also

2. Courts subordinate to it.

The powers and authority of the High Court as well as the procedure and practice
to be followed are the same in both cases (S. 10).

The jurisdiction of High Court is available

1. whether the contempt is alleged to have been committed within or outside the
local limits of its jurisdiction, and

2. whether the person alleged to be guilty of contempt is within or outside such

limits (S. 11).

However, where such contempt is an offence punishable under the Indian Penal
Code, the power is with a lower Court and not with the High Court, except where
the offence is committed against the High Court itself (Proviso to S. 10).

PROCEDURE IN EX FACIE CONTEMPT (S. 14)

When a High Court or Supreme Court is of the opinion that a person has
committed contempt in its presence or hearing, the Court may cause such person
to be detained in custody.

As early as possible thereafter the guilty shall be informed in writing of the

contempt with which he is charged with an opportunity to make his defence to the
charge.

After the hearing the court may proceed to determine the matter of the charge; and
make such order for the punishment or discharge, as may be just.

Pending the determination of the charge, the Court may direct that the person be
detained in such custody as it may specify: Provided that he shall be released on
bail, if a bond for such sum of money as the Court thinks sufficient is executed
with or without sureties.
 Contempt of Court

PROCEDURE IN CASES OTHER THAN EX FACIE CONTEMPT (S. 15)

In cases of a criminal contempt other than ex facie contempt, a High Court or

Supreme Court may take action,

1. suo motu; or

2. on a motion made by

(a) the Advocate-General, or

(b) any other person, with the consent in writing of the Advocate General.

In relation to the Supreme Court, the Attorney-General or the Solicitor-General

shall make the motion or give consent to make the motion.

3. on a reference made by a subordinate Court.

Every motion or reference made under this section shall specify the contempt of
which the person charged is alleged to be guilty.

PROCEDURE AFTER COGNIZANCE (S. 17)

Notice of every proceeding under sec. 15 shall be served personally on the person
charged, unless the court for reasons to be recorded directs otherwise. Every
notice shall be accompanied by a copy of the motion and accompanying affidavits
or the copy of the reference.

If the Court is satisfied, that a person charged under section 15 is likely to

abscond or keep out of the way to avoid service of the notice, order the attachment
of his property of such value or amount as it may deem reasonable, in the manner
prescribed by Civil Procedure Code, 1908.

The contemnor may file an affidavit in support of his defence. The Court may
determine the matter of the charge either on such affidavits or after taking such
further evidence as may be necessary.

Every case of criminal contempt under sec. 15 shall be heard and determined by a
Bench of not less than two judges, i.e., by Division Bench or Full Bench only. A
Single Judge Bench cannot hear and decide the matter.

After determining the matter on affidavits or evidence or both, and after hearing
the contemnor, the Court may pass the necessary order.
 Appeals (S. 19)

APPEALS (S. 19)

An appeal lies as of right from any order or decision of High Court in the exercise
of its jurisdiction to punish for contempt

(a) where the order or decision is that of a single Judge, to a Bench of not less
than two Judges of the Court;

(b) where the order or decision is that of a Bench, to the Supreme Court.

Pending any appeal, the appellate court may order that-

(a) the execution of the punishment or order appealed against be suspended;

(b) if the appellant is in confinement, he be released on bail and

(c) the appeal be heard notwithstanding that the appellant has not purged his
contempt.

Period of Limitation for Appeal

If the appeal is to a Bench of the High Court, 30 days, to Supreme Court, 60 days.

PUNISHMENT FOR CONTEMPT OF COURT (S. 12)

1. A contempt of court may be punished with simple imprisonment for up to six
months, or with fine up to two thousand rupees, or with both.

The accused may be discharged or the punishment awarded may be remitted on

apology being made to the satisfaction of the court. Only if the court feels that
the ends of justice will not be met without imprisonment may direct that he be
detained in a civil prison.

2. In case of contempt committed by a company, if it is proved that the contempt

has been committed with the consent or connivance of, or is attributable to any
neglect on the part of, any director, manager, secretary or other officer of the
company, such an officer officer shall also be deemed to be guilty of the
contempt and such a person may also be punished.

Contempt Not Punishable in Certain Cases (S. 13)

The court is not supposed to impose a sentence under this unless it is satisfied
that the contempt is of such a nature that it substantially interferes, or tends
substantially to interfere with the due course of justice.
 KARNATAK LAW SOCIETY’S
RAJA LAKHAMGOUDA LAW COLLEGE
TILAKWADI, BELGAUM

50 SELECTED OPINIONS OF
THE DISCIPLINARY COMMITTEES OF
THE BAR COUNCIL OF INDIA

G. M. WAGH

1998
 CASES OF PROFESSIONAL MISCONDUCT DECIDED BY
THE DISCIPLINARY COMMITTEES OF THE BAR COUNCIL OF INDIA

NEGLIGENCE IN CONDUCTING CASE

1. DC Appeal No. 16/1993 25(1) 1998 IBR 135 1
2. DC Appeal No. 8/1994 25(1) 1998 IBR 153 4
3. D.C. Appeal No. 20/1994 24(3&4) 1997 IBR193 7
4. BCI Transfer Case No. 76/1995 24(3&4) 1997 IBR 201 10
5. BCI Transfer Case No. 104/1990 23(1) 1996 IBR 155 12
6. BCI Transfer Case No. 52/1989 21(1) 1994 IBR 187 13
7. BCI Transfer Case No. 14/1980 16(2) 1989 IBR 264 15
8. DC Appeal No. 35/1987 16(3&4) 1989 IBR 536 18
9. DC Appeal No. 40/1986 14(3) 1987 IBR 488 21
10. DC Appeal No. 7/1981 14(4) 1987 IBR 735 23
11. DC Appeal No. 19/1993 *
23(1) 1996 IBR 152 25
12. DC Appeal No. 24/1987 *
16(2) 1989 IBR 273 27
13. DC Appeal No. 3/1988 *
16(2) 1989 IBR 285 30

WITHHOLDING OF DOCUMENTS
14. DC Appeal No 10/1986 & 10A/1986 14(3) 1987 IBR 491 32
15. DC Appeal No. 12/1986 14(4) 1987 IBR 745 34

FAILURE TO RENDER ACCOUNTS, MISAPPROPRIATION OF CLIENT’S MONEY,

BREACH OF TRUST, MISUSE OF CLIENT’S CONFIDENCE
16. DC Appeal No. 13/1991 24(1&2) 1997 IBR 271 36
17. DC Appeal No. 24/1990 23(1) 1996 IBR 135 38
18. DC Appeal No. 41/1987 16(1) 1989 IBR 122 40
19. DC Appeal No. 21/1985 15(3&4) 1988 IBR 359 42
20. BCI Transfer Case No. 43/1982 15(3&4) 1988 IBR 364 44
21. DC Appeal No. 28/1986 15(3&4) 1988 IBR 374 45
22. DC Appeal No. 38/1984 14(2) 1987 IBR 319 47
23. DC Appeal No. 7/1986 14(3) 1987 IBR 496 49

MISLEADING CLIENT, CHEATING THE CLIENT, MAKING FALSE ASSURANCES

24. BCI Transfer Case No. 127/1988 19(3&4) 1992 IBR 125 52
25. BCI Transfer Case No. 27/1988 16(3&4) 1989 IBR 542 54
26. BCI Transfer Case No. 24/1986 16(3&4) 1989 IBR 563 57
27. DC Appeal No. 23/1987 15(1&2) 1988 IBR 187 60
28. DC Appeal No. 34/1985 14(4) 1987 IBR 757 62

THREATENING CLIENT, BLACKMAILING THE CLIENT

29. BCI Transfer Case No. 29/1981 16(2) 1989 IBR 245 64

DISREGARD OF CLIENT’S INTEREST

30. DC Appeal No. 33/1986 15(3&4) 1988 IBR 354 68

1
 50 Selected Opinions of the Bar Council of India 2
WITHDRAWAL FROM CASE WITHOUT SUFFICIENT REASON AND SUFFICIENT NOTICE
31. BCI Transfer Case No. 16/1986 15(1&2) 1988 IBR 197 70

REPRESENTING THE OTHER SIDE, CHANGING OF SIDE, APPEARING FOR BOTH SIDES
32. BCI Transfer Case No. 39/1987 19(3&4) 1992 IBR 147 72
33. BCI Transfer Case No. 39/1989 19(3&4) 1992 IBR 149 74
34. BCI Transfer Case No. 52/1988 16(1) 1989 IBR 110 76
35. DC Appeal No. 6/1981 15(1&2) 1988 IBR 193 78
36. DC Appeal No. 64/1974 14(2) 1987 IBR 314 79

MISGUIDING COURT
37. BCI Transfer Case No. 40/1991 25(1) 1998 IBR 139 81
38. BCI Transfer Case No. 6/1984 16(3&4) 1989 IBR 550 83

INTERFERING WITH THE DECISION BY INFLUENCING THE JUDGE

39. DC Appeal No. 46/1986 16(2) 1989 IBR 280 85
40. BCI Transfer Case No. 2/1980 16(2) 1989 IBR 289 87

MAKING SCANDALOUS ALLEGATIONS AGAINST THE PRESIDING OFFICER

41. BCI Transfer Case No. 101/1988 16(3&4) 1989 IBR 524 89
42. DC Appeal No. 41/1986 15(1&2) 1988 IBR 200 92

CONDUCT UNBECOMING OF AN ADVOCATE, LOWERING DIGNITY OF PROFESSION

43. BCI Transfer Case No. 16/1988 16(1) 1989 IBR 99 93
44. DC Appeal No. 14/1988 16(2) 1989 IBR 258 95
45. DC Appeal No. 10/1988 16(3&4) 1989 IBR 572 98

ACTING IN A CASE IN WHICH THE ADVOCATE HAS PECUNIARY INTEREST,

SHARING PROFITS OF CASE AND LENDING MONEY TO THE CLIENT
46. DC Appeal No. 23/1988 16(3&4) 1989 IBR 532 100

CONVICTION FOR OFFENCE INVOLVING MORAL TURPITUDE

47. BCI Transfer Case No. 10/1986 16(3&4) 1989 IBR 520 102
48. DC Appeal No. 45/1974 15(1&2) 1988 IBR 182 104

FORGERY
49. BCI Transfer Case No. 2/1988 16(1) 1989 IBR 102 106
50. BCI Transfer Case No. 57/1987 14(4) 1987 IBR 753 108

OTHER MISCONDUCT (MAKING ALLEGATIONS AGAINST VARIOUS AUTHORITIES)

51. DC Appeal No. 43/1996 24(3&4) 1997 IBR 207 109
 CASE 1
(Negligence in Conducting Case)
25(1) 1998 IBR135

D.C. Appeal No. 16/1993

A vs. R

Shri C.L. Sachdeva (Chairman) and Shri O.P. Sharma and Shri T.P. Singh (Members)

Judgement Dated 5th October, 1996

FACTS OF THE CASE

Complainant’s Case: Complainant had executed a registered sale deed with an option to
repurchase a house property situate in Deeravalli village in favour of one Lanka Samba
Shiva Rao. However, the Complainant continued to be in possession and enjoyment of
the property. Vendor made attempts to take the possession of the property forcibly in
collusion with the police and Complainant filed a suit for injunction against him through
his Advocate, i.e., the Respondent at OS No. 87/85. Vendors also filed a counter suit at
OS No. 89/85 against the Complainant in the Sub-Court of Gudivada for foreclosure of
the mortgage, claiming the above mentioned sale deed as mortgage deed. This was
opposed by the Complainant in his Written Statement wherein he claimed that the
document is sham and nominal.

In the mean while in OS No. 87/85 Court ordered for payment of deficit Court fee under
sec. 24 (b) of the Andhra Pradesh Court Fees and Suits Valuation Act. The Complainant
alleges that the Respondent was negligent in conducting the case and did not inform the
Complainant regarding any progress of the case as a result of which the order of the
Court for payment of deficit Court fee could not be complied with. This resulted in
rejection of the plaint. Even this was not intimated to the Complainant by the
Respondent. The Complainant further alleges that there was no negligence on his part
and he regularly kept in touch with the Respondent-Advocate and asked him about the
stages of both the suits. However, he did not get true reply from the Respondent. On
23.9.1991 he came to know from some other persons that OS No. 87/85 was dismissed
long back, on 15.4.1986, and that OS No. 89/85 was allowed. On verification, the
Complainant found the rumours true. On 24.9.1991 the Complainant met Respondent-
Advocate and requested him to return the papers of both suits with a “no objection” to
engage another Advocate.

OS No. 89/85 was posted on 27.9.91 for the examination of PW3. On 25.9.1991, the
Respondent-Advocate returned the Complainant’s papers in OS No. 89/85 only, and
promised to take adjournment on 27.9.1991. Accordingly, on 27.9.1991 he obtained

1
 50 Selected Opinions of the Bar Council of India 2
adjournment of OS No. 89/85 to 4.10.91. However, later the case was again advanced
and the evidence of PW3 was recorded. Against his own promise, Respondent-Advocate
cross-examined PW3.

Respondent’s Case: Respondent-Advocate denied the averments of the complaint and

blamed the Complainant for non-payment of Court fee in OS No. 87/89.

PROCEEDINGS

The D.C. of S.B.C. framed as many as eight issues and heard the parties on 22.6.1995
assisted by their counsels. Both the parties also submitted their written arguments.
Respondent’s daughter who had joined the profession recently also filed a mercy
application.

The D.C. of S.B.C. after going through the records passed a speaking order with the
following observations:

1. When the Complainant sought “no objection” to change Advocates, the

Respondent should have given his no objection and retire from the case without
any hesitation.

2. It is unbecoming of an Advocate to keep his client in darkness about the

progress of the case. The Respondent did the same thing in this case. Therefore,
he could not make good deficit of Court fee and consequently the plaint in OS
No. 87/85 was rejected. The evidence of RW1 and RW2 in respect of the
financial capacity of the Complainant is not acceptable. Allegation that OS No.
87/85 was dismissed on 15.4.86 due to negligence of Respondent stands
established.

3. Respondent-Advocate has cross-examined PW3 in OS No. 89/95 without the

consent and knowledge of the Complainant, especially when Complainant had
lost confidence in the Respondent. It is accepted that the Respondent promised
to obtain adjournment in OS No. 89/85, but cross-examined PW3 therein in the
absence of the Complainant.

4. Respondent has admitted that he refused to file delay condonation application

in application for restoration of OS No. 87/85, which is unbecoming of him.

5. Evidence of the Complainant to the effect that Respondent-Advocate did not

return the records in OS No. 87/85 to the Complainant is accepted.

On the above grounds the D.C. of S.B.C. by its order dated 14.3.1993 debarred the
Respondent-Advocate from practice for a period of One year.
3 50 Selected Opinions of the Bar Council of India
ORDER

D.C. of B.C.I. found no reason to differ with the order and reasons of the D.C. of S.B.C.
In the circumstances, the order passed by the S.B.C. was affirmed and the appellant was
directed to undergo the punishment imposed by the D.C. of S.B.C. The stay order of the
S.B.C. was vacated.
 CASE 2
(Negligence in Conducting Case)
25(1) 1998 IBR153

D.C. Appeal No. 8/1994

A vs. R

Shri D.V. Patil (Chairman) and Shri S.C. Chawla and Shri S.G. Nair (Members)

Judgement Dated 8th December, 1996

FACTS OF THE CASE

Complainant’s Case: In 1981 the Complainant paid in all Rs. 70,000 to Rao & Raju
Builders Pvt. Ltd., Hyderabad, for the construction of a 3 bed room house in the plot
allotted to him. But the builders failed to perform their obligation under the contract.
Complainant met Mr. Rao, Managing Director of the concern to settle the matter
amicably. Mr. Rao referred the Complainant to the Respondent-Advocate to seek his
advice. Complainant met the Respondent in March 1984 and the Respondent advised
the Complainant to file a suit against the builders for recovery of money. Complainant
engaged the Respondent by paying Rs. 5,000 and signed the plaint.

Later the Complainant requested his brother-in-law who was also his General Power of
Attorney-holder to pursue the matter. Complainant’s brother-in-law met the Respondent
in 1991 and enquired about the progress. Respondent told him that suit was still in
registration stage and was yet to be numbered.

Complainant sent a registered letter dated 4.9.91 to the Respondent along with a D.D.
for Rs. 400 towards the expenses and requested him to expedite the matter. As there
was no reply to this letter, he sent another registered letter dated 18.12.1991. Even for
this letter, he did not receive any reply. Therefore, the Respondent has committed
professional misconduct as he had failed to file the suit in spite of having received the
amount of fee.

Respondent’s Case: Respondent in his reply admitted the fact that Complainant had
approached him seeking his advice. But he contended that he could not take up
Complainant’s case as Mr. Rao one of the directors of Rao & Raju Builders Pvt. Ltd. had
already approached him. He only gave a friendly advice for instituting a suit against the
concern. The Respondent denied all other facts mentioned in the complaint. As to the
D.D. of Rs. 400, the Respondent contended that he had returned the same on 19.9.91.
Therefore, he had not committed any professional misconduct.

4
5 50 Selected Opinions of the Bar Council of India
PROCEEDINGS

Based on the pleadings of both sides, the following issues were framed:

1. Whether the Complainant has paid Rs. 5000 to the Respondent for filing the
suit against Rao & Raju Builders Pvt. Ltd., Hyderabad?

2. Whether the Complainant sent Rs. 400 through D.D. to the Respondent for
taking necessary steps in the matter entrusted to him?

3. Whether the Respondent took any steps in respect of the case entrusted by the
complaint to him?

4. Whether the Respondent is guilty of any professional misconduct?

5. What relief?

Appellant argued that there was contradiction in the evidence of Complainant and his
witnesses. Respondent in his evidence admitted that there was no written
communication between him and the Respondent-Advocate after filing the suit until
4.9.1991. He also admitted that there was no proof for the payment of Rs. 5000.
Similarly, Complainant’s witnesses have not supported the assertion of the Complainant
in respect of the payment and signing of the plaint. Respondent further argued that the
suit was filed by one Shri Bhagawan Dass Sharma, Advocate, on 7.6.1984 and he was
the Complainant’s Advocate in that suit. Respondent exhibited his letter dated 19.9.91
returning the D.D. for Rs. 400 to the Complainant as he was not concerned in the case.
Hence, he claimed that the impugned order be set aside on following grounds:

1. As per the Complainant’s own case he did not care to know the fate of a suit
purported to if filed by him in the year 1983, till 1991. Therefore, he was not
interested in the matter.

2. There are discrepancies and contradictions in the evidence led by the

Complainant.

3. There is no proof for the Complainant having paid Rs. 5,000 to the Respondent-
Advocate.

4. On above grounds, the Complainant has miserably failed to prove misconduct

on the part of the Respondent-Advocate.

Complainant’s Advocate argued that he had produced enough evidence, oral as well as
documentary to prove his case against the Respondent. He argued that Complainant’s
witnesses have corroborated the evidence of the Complainant on the fact of Complainant
engaging Respondent as his Advocate by paying Rs. 5000. Ex.R1, a letter dated
 50 Selected Opinions of the Bar Council of India 6
19.9.1991 sent by Respondent to Complainant was never received by the Complainant.
He also expressed doubt as to whether an Advocate will reply a registered letter by an
ordinary letter, especially when he was returning a D.D. Hence, as there was no proof of
having the letter posted, Ex.R1 was only a concocted document. Complainant’s case was
supported by an independent witness whose evidence was of great weight and could not
be easily brushed aside.

After careful consideration of the arguments and evidence of both sides, D.C. of B.C.I.
was of the opinion that the Respondent was engaged by the Complainant as his counsel
by paying Rs. 5000 towards his fees. In spite of having received the fees, the Respondent
did not file the suit. D.C. & B.C.I. did not accept the plea of Respondent that he had sent
a letter dated 19.9.1991 to the Complainant and returned the DD for Rs. 400, as there
was no proof for that. Hence the Respondent was found guilty of professional
misconduct and the D.C. of the B.C.I. found no reason to differ with the finding of S.B.C.

ORDER

In view of the above reasons the D.C. of the B.C.I. dismissed the appeal and upheld the
order of the S.B.C. suspending the Respondent for a period of 6 months from practice.
 CASE 3
(Validity of Order of S.B.C. Passed after the Statutory Period of One Year)
24(3&4) 1997 IBR193

D.C. Appeal No. 20/1994

A vs. R

Shri G.D. Bhatt (Chairman) and Shri J.B. Pardiwala and Shri V.R. Sharma (Members)

Judgement Dated 1st June, 1996

FACTS OF THE CASE

Complainant’s Case: One Subhash Jain, brother of the Complainant was convicted
under sec. 302, I.P.C., and was sentenced to undergo life imprisonment. He applied
under sec. 2 of the Madhya Pradesh Prisoners Release on Probation Act, 1954 before the
Indore Bench of Madhya Pradesh High Court at M.P. No. 14/92. The same came to be
dismissed by the High Court on 8.1.1992. Against this Order of the High Court in M.P.
No. 14/92, the Complainant’s brother wanted to prefer SLP and the Complainant
engaged the Respondent for the said purpose. Respondent-Advocate demanded Rs.
15,000 towards his professional fees and expenses. Complainant promptly paid the
same to the Respondent along with case papers.

After some time, the Complainant enquired with the Respondent about the progress in
the case. Respondent informed that he had filed S.L.P. and show cause notices had been
issued by the Hon’ble S.C. After persistent demand from the Complainant, Respondent
sent a copy of S.L.P. and the alleged order of the S.C. The Complainant was suspicious
about the genuineness of these documents and on further probe into the matter found
that they were all forged documents and no S.L.P. had in fact been filed by the
Respondent–Advocate.

Hence, the Respondent has committed misconduct by not filing Special Leave Petition in
spite of payment of fees as demanded by him.

7
 50 Selected Opinions of the Bar Council of India 8

PROCEEDINGS

D.C. of S.B.C. framed the following issues:

1. Whether the Respondent-Advocate had been engaged by the Complainant for

filing of a S.L.P. before the Supreme Court against the order in MP No. 14/92
dated 8.1.1992, and for this purpose had he paid a sum of Rs. 15,000 to the
Respondent-Advocate towards the fees?

2. Whether the alleged copy of the S.L.P. and copy of Supreme Court order was
sent by the Respondent to the Complainant?

3. Whether the copy of the S.L.P. order and petition sent by the Respondent-
Advocate was not genuine and fake one?

4. Whether on proof of allegation, the Respondent-Advocate is guilty of

professional misconduct?

After going through the evidence, D.C. of S.B.C. found Respondent guilty of professional
misconduct and passed an order dated 2.4.1994 suspending his sanad for a period of 7
years, and also ordered that if the Respondent refunds the amount of Rs. 15,000 with
interest at bank rate to the Complainant his sanad would be suspended for 5 years only.

In the appeal, Respondent’s case was based on a preliminary contention that the order
of the S.B.C. was vitiated as the same was passed beyond the stipulated period of 1 year.
In support of this submission, he relied upon a Division Bench decision of Madras High
Court reported in 1986(2) MLJ 362. In the opinion of the DC of the BCI, this ground
raised by the Respondent was well founded. Though this question was not raised before
S.B.C. and also the appeal memo was silent on this point. B.C.I. allowed this question as
it went to the root of the matter.

The B.C.I. decided the following issue as preliminary issue:

Whether the impugned judgement and order dated 2.4.94 of the D.C. & S.B.C. is
vitiated on the ground that it is passed beyond the period of limitation of 1 year
envisaged under sec. 36B(1) of the Advocates Act, 1961?

S.B.C. actually received the complaint on 11.11.1992. S.B.C. referred the complaint to
D.C. on 23.1.1993. Notices were issued to the parties by D.C. on 28.2.1993. First date of
hearing was fixed on 8.4.1993. The order was passed on 2.4.1994.

Sec. 36B(1) provides that proceedings shall be concluded within a period of 1 year from
the date of receipt of the complaint or the date of initiation of the complaint at the
instance of S.B.C., as the case may be. Hence, in this case the order passed on 2.4.94 is
9 50 Selected Opinions of the Bar Council of India
beyond this period mentioned in the Act. Immediately after the lapse of 1 year, the case
stands transferred to the B.C.I. and the S.B.C. has no jurisdiction to pass any order in
the matter. Therefore, the order dt.2.4.94 passed by the S.B.C. is bad in as much as it
was passed without any jurisdiction.

Learned counsel for the Respondent also invited the attention of B.C.I. to the provisions
of Rule 17(2) in Part VII of the B.C.I. Rules, which reads as under:

“The date of receipt of the complaint or date of initiation of the proceedings at the
instance of the S.B.C. shall be the date on which the S.B.C. refers the case for
disposal to its D.C. under sec. 35(1).”

As S.B.C. referred the complaint to D.C. on 23.1.1993 and the order was passed on
2.4.1994, it was clear that the order was passed beyond the period of 1 year as
contemplated by sec. 35(1) of Advocates Act r/w Rule 17(2) of B.C.I. Rules.

Therefore, in the opinion of the B.C.I. the order of the S.B.C. was vitiated and was liable
to be set aside. Now the proceedings were deemed to be transferred to B.C.I. Therefore,
obviously they were treated as pending before B.C.I. and were to be disposed of by B.C.I.
in accordance with law. It was now an original proceeding before B.C.I.

B.C.I. further observed that part of the evidence recorded by D.C. of S.B.C. fell within
the limitations and remaining was recorded beyond that period. Now B.C.I. had to decide
while hearing the case as original proceeding whether it could act upon that evidence or
whether the parties should give additional evidence.

ORDER

The appeal was partly allowed. Impugned order dated 2.4.94 passed by Indore Bench of
Madhya Pradesh S.B.C. in CC No. 67/92 was quashed and set aside. The proceedings of
CC No. 67/92 were held to have stood transferred to the B.C.I. and it was observed that
the B.C.I. would proceed further in accordance with law.
 CASE 4
(Negligence in Conducting Case)
24(3&4) 1997 IBR 201

B.C.I. Tr. Case No. 76/1995

C vs. R

Shri Jagannath Patnaik (Chairman) and Shri Ashok Deb and Shri S.K. Padhi (Members)

Judgement Dated 12th December, 1996

FACTS OF THE CASE

Complainant’s Case: Complainant engaged Respondent to file a case in respect of theft

committed in his house. Respondent–Advocate gave him a draft complaint, which was
sent to the Commissioner of Police and other authorities by the Complainant.
Respondent also issued notice to the Station House Officer, Lajpat Nagar Police Station,
New Delhi, on behalf of the Complainant for supply of enquiry report. Till then no fees
were settled between the Complainant and the Respondent. Respondent had promised
that he would charge minimum fees. Later on, Complainant paid in all Rs. 4000.00 to
the Respondent out of which Rs. 2000 were towards fees and Rs. 2000 were towards
expenses for filing the case in Court. He singed vakalatnama and gave two sets of papers
to the Respondent. Respondent asked the Complainant to bring certain documents such
as bank passbook, etc. for filing the case. Respondent demanded Rs. 11,000 as his fees.
During the time, Complainant became very busy, instructed the Respondent not to file
the case, and asked him to return Rs. 4000 paid by him. However, the Complainant did
not return the money.

Respondent’s Case: Respondent denied the allegations made by the Complainant. He

categorically denied that he had received any money from the Complainant. He admitted
the facts in the complaint in respect of drafting the complaint and issuing notice etc.
without receiving any fee from the Complainant. He stated that the Complainant was
referred to him by one Shri Manoj Swarup, Supreme Court Advocate, to help the
Complainant, as he was a poor person, without charging any fees. He averred that as
huge amount of money was alleged to be stolen, he asked the Complainant to bring
Photostat copy of the bank passbook so that the charge may be substantiated. He asked
the Complainant to pay him Rs. 2,200 towards fees for filing the case as well as for the
notice and complaint which was drafted by him earlier. After a few days the Complainant
approached the Respondent and told him that he did not want him to file the case and
asked him to return the papers. When the Respondent asked him to sign a receipt for
the said paper, the Complainant refused and left his office and later filed this complaint
against him.

10
11 50 Selected Opinions of the Bar Council of India
PROCEEDINGS

The following issues were framed by the D.C. of the Bar council, after going through the
pleadings of the parties.

1. Whether the Respondent took Rs. 4000 from the Complainant?

2. Whether the Respondent did professional misconduct by not rendering the

service to the Complainant, if he has paid the alleged amount?

3. Any other professional misconduct?

In his evidence, Complainant supported his pleadings. On the question put by the
committee in respect of the professional service rendered to him by the Respondent,
Complainant stated that he was prepared to pay the reasonable fees as may be decided
by the committee. In the cross-examination he stated that in order to pay the fees, he
had borrowed Rs. 4,000 from a neighbouring lady, whose name he did not disclose. He
also stated that no document was executed for the said loan.

In his evidence, Respondent supported his pleadings. In the cross-examination, he

denied the suggestion put to him that he has received Rs. 4,000 towards fees and
expenses and also denied the suggestion that he had demanded Rs. 11,000 towards
fees.

The crucial point involved in this case was whether the Complainant has proved his case
to the effect that he paid Rs. 4,000 to the Respondent as alleged. In support of his
allegations, Complainant did not produce any convincing evidence. In his cross-
examination he gave evasive answers of having received the money from his neighbour
and reused to adduce her evidence. As even refused to disclose her name. To the
question put by the committee he agreed to pay reasonable fee for the professional
service rendered to him by the Respondent. If he had already paid Rs. 4000 to the
Respondent as alleged by him, he would have requested the committee to order refund of
Rs. 4000 after deducting the reasonable fee. It is not uncommon practice when a senior
colleague sends a case to another colleague with a request to help the client, normally
the Advocate obliges. In this case also, the D.C. of B.C.I. felt that the Respondent might
have drafted complaint and issued notice without charging any fees. The D.C. of the
B.C.I. felt that it was not unjustified on the part of Respondent to demand receipt from
the complaint for having received the document.

Therefore, the Complainant failed to prove his case against the Respondent for
professional misconduct.

ORDER

As such the complaint was dismissed. The parties were left to bear their own costs.
 CASE 5
(Negligence in Conducting Case and Misleading Client)
23(1) 1996 IBR 155

B.C.I. Tr. Case No. 104/1990

C vs R

Shri Jagannath Patnaik (Chairman) and Shri Ashok Deb and Shri S.K. Padhi (Members)

Judgement Dated 19th November, 1995

FACTS OF THE CASE

Complainant’s Case: The Complainant had filed a suit in respect of an immovable

property and had appointed the Respondent-Advocate to represent him in the said case.
The Complainant visited the Respondent on different dates to ask about the progress of
the case. He was informed that the case was pending in the Court of the Rent Controller.
After a considerable time, the Complainant discovered that the case had been dismissed
for default long back. The Complainant’s efforts to restore the case through another
Advocate did not yield any results and he was constrained to file a fresh case.

Respondent’s Case: Respondent admitted that he had represented the Complainant in

the said case, but could not give any reason for the dismissal of the case for default, and
also for making the false representations to the Complainant that the case was pending.

PROCEEDINGS

Therefore, the B.C.I. had no hesitation in holding that the Respondent had committed
professional misconduct as it is well settled that gross negligence on the part of an
Advocate which leads to the suffering and harassment of the client will amount to
misconduct, and that it was exactly what had happened in this case.
The Respondent-Advocate had neither expressed remorse nor tendered apology in his
defence. On the contrary, he had unnecessarily tried to put blame upon the
Complainant himself. It was also brought to the notice of the D.C. of B.C.I. that the
Respondent-Advocate had committed similar misconduct in the past and had been
punished with suspension for a period of 1 month. That order was confirmed by the
Supreme Court of India.

ORDER

In view of all these circumstances, the D.C. of B.C.I. found it proper to suspend the
Respondent-Advocate from practice for a period of six months.

12
 CASE 6
(Negligence in Conducting Case and Threatening Client)
21(1) 1994 IBR 187

B.C.I. Tr. Case No. 52/1989

Kapil Dev Singh vs. Prem Nath

Shri V.C. Sharma (Chairman) and Shri B.N. Sharma and Shri Sarvesh Sharam
(Members)

Judgement Dated 20th May, 1990

FACTS OF THE CASE

Complainant’s Case: Complainant was a party in two cases. He wanted to file two Writ
Petitions against some orders in those two cases. He engaged the Respondent-Advocate
as his counsel for filing these Writ Petitions, and paid him Rs. 2000. Complainant also
handed over the necessary case papers to the Respondent along with several signed
plain papers. Respondent assured the Complainant that he would file the Writ Petitions
before the Lucknow Bench of the High Court. After a few days, when the Complainant
met the Respondent, Respondent told him that he had already got the Writ Petitions filed
through a High Court Advocate. However, he could not tell the name of the High Court
Advocate. Becoming suspicious about the whole incident, the Complainant made
enquiries and found that the Writ Petitions were not filed. Therefore, he met the
Respondent and asked him to refund the money and also to return the papers. Realising
the trouble, the Respondent threatened and insulted the Complainant. Thereby, he has
committed misconduct.

Respondent’s Case: Respondent in his defence denied all the contentions of the
Complainant. He denied that the Complainant engaged him as Advocate and that he had
accepted the vakalatnama. But he did not deny the payment of Rs. 2,000 or the delivery
of papers to him. He contended that the relation between the parties was strained, and
out of animosity, the Complainant had filed this false complaint. The B.C.I. was
surprised to see that the defence was not verified as required under the provisions of
CPC, and therefore, it did not find the defence admissible. The Respondent also did not
care to file any affidavit in support of his defence. Therefore, all his contentions were
ignored by the B.C.I.

13
 50 Selected Opinions of the Bar Council of India 14
PROCEEDINGS

The Respondent did not even care to appear before the D.C. of either the S.B.C. or the
B.C.I. Hence, D.C. of B.C.I. recorded the statement of the Complainant on oath and
decided the matter on the strength of the records. As the Respondent did not forcefully
and successfully oppose the complaint, the D.C. of the B.C.I. had no hesitation in
upholding the contentions in the complaint, and to hold the Respondent guilty of
misconduct as alleged in the complaint.

ORDER

The Respondent was suspended from practice for a period of six months.
 CASE 7
(Vicarious Liability for the Acts of a Partner)
16(2) 1989 IBR 264

B.C.I. Tr. Case No. 14/1980

State Bank of India vs. Mrs. S. and Co.

Shri B.P. Samaiyar (Chairman) and Shri K.P. Sinha and Shri V.C. Mishra (Members)

Judgement Dated 4th March 1989

FACTS OF THE CASE

Complainant filed the complaint before the S.B.C. and the same was referred by the
S.B.C. to one of its D.C.s. Obviously, the D.C. of the S.B.C. could not conclude the case
within the statutory period of one year and therefore it stood transferred to the B.C.I.
under sec. 36B of Advocates Act, 1961.

The D.C. of the B.C.I. heard the case on several dates. The evidence on both sides was
recorded and arguments of both sides were heard. The case was posted for judgement.
While writing the judgement the D.C. had some doubts as to the facts and issued notices
to the parties for rehearing. On receiving the notice, the Respondent filed an application
praying the Committee to decide on the maintainability of the case before going into the
merits of the case. On the next date of hearing the Respondent produced certified copies
of two letters written by the Complainant Bank to him and filed an application for taking
those letters on record. The Advocate for Complainant prayed for time for filing
objections to this application and case was adjourned. On the next date of hearing the
Advocate for Complainant submitted that he was not going to file any objections. The
Advocate for Respondent argued on the application. The Advocate of the Complainant
once again prayed for a time for filing objections and submitted that he will argue only
after filing the of the objections. He submitted that on the earlier occasions he had not
received the copies of the letters sought to be produced by the Respondent as evidence,
and therefore he could not file objections. Adjournment was granted as the prayed for.
Even on the next date of hearing, the arguments were not concluded and the case was
adjourned for further hearing. On the date of further hearing, the Advocate for
Complainant filed an adjournment application, which was rejected. The letters were
admitted in evidence and arguments were closed. The judgement was reserved.

15
 50 Selected Opinions of the Bar Council of India 16
Complainant’s Case: The Respondent is a Solicitor Firm practising in Delhi.
Complainant Bank and its branches used to entrust most of their cases to the
Respondent Firm. Jungpura Branch of the Complainant Bank entrusted a case to the
Respondent firm against a borrower for breach of financial discipline. The Respondent
advised the Bank to file a criminal complaint and also a civil suit for recovery of money
against the said borrower. According to the Bank, it lodged a Police complaint and filed a
civil suit through the Respondent Firm. The Bank entrusted the valuable original loan
documents to the firm along with fees and expenses.

After few days, the Bank enquired with the Respondent Firm about the name of the
Court in which the suit had been filed and the next date of hearing. But no reply was
received by it from the Respondent Firm. Therefore, it became suspicious that the firm
was withholding vital information regarding the case. It instructed the Respondent Firm
to retire from the case and appointed another Firm to look into the matter. The Bank
was informed by the new Firm that though the suit had been filed by the Respondent
firm, the plaint was returned to it by the Court office for rectifying certain defects in
plaint. But the plaint was not represented. In the meanwhile, the Law Department of the
Complainant Bank came across a case reported in AIR 1978 SC 335. In that case,
strictures were passed by the Supreme Court against a senior member of the
Respondent Firm for a similar conduct in the case reported therein.

Therefore, the Complainant bank believes that the Respondent Firm had
misappropriated the money given to it towards fees and expenses and had failed to
account for the same. The original papers which formed the basis of Complainant Bank’s
claim against the borrower have also been either secreted, destroyed or misappropriated
and converted to their own unlawful benefits by the Respondent Firm. Therefore, the
partners of the Respondent Firm were guilty of professional misconduct.

Respondent’s Case: Only one of the partners appeared and filed his defence. He denied
all the allegations. He contended that the Firm had filed the suit and that the allegation
in the complaint to the effect that the same was returned by the Court for rectification of
defects was false. Hence, he contended that there was no occasion for all holding the
Firm liable for misconduct.

He further contended that the Complainant had signed vakalatnama only in the name of
the senior member of the Firm and not in his name or in the name of any other member
of the firm. Therefore, even if the allegations in the complaint were true, he is not liable
because for the misconduct of one partner another partner is not held liable unless they
abetted or they are accessories to the misconduct directly. He contended that there is no
vicarious liability. He also raised the preliminary objection as to the maintainability of
the proceedings.
17 50 Selected Opinions of the Bar Council of India
PROCEEDINGS

On the basis of the pleadings the following issues were framed:

1. Is the case maintainable?

2. Whether the plaint was returned to the Respondent as alleged?

3. Whether the Respondent wrongfully withheld documents?

The Respondent argued before the Bar of Council of India that the reference of the
complaint by the S.B.C. to its D.C. was mechanical one and the S.B.C. had not applied
its mind to the case before referring it. In its reference the S.B.C. did not mention that
the S.B.C. had considered the complaint and that it had found that there is a prima
facie case. He relied up on the decision of a Supreme Court reported in AIR 19881 SC
477 in support of his argument.

On the perusal of the original records B.C.I. found that the S.B.C. had issued notice to
the Respondent and only after hearing the parties the case was referred to its D.C.
Hence the requirement of law of “reason to believe” was fulfilled. The B.C.I. also felt that
the decision sighted above is not applicable to the instant case. Hence, the objection was
rejected.

On the question as to whether the plaint was returned as alleged, the Complainant
produced a letter written by Respondent Firm to the Complainant. The letter did not
bear the signatures of any of the partners of the Firm, and therefore, was objected by the
Respondent for marking. Complainant stated in his evidence that the plaint was
returned because court fee had not been paid. This was rejected as untrue because if the
court fee is not paid or if it is in the deficit, the plaint is not returned, but time is given
for the payment of deficit court fee. Therefore, the Complainant was held to have failed
in establishing that the plaint had been returned.

However, the Complainant Bank successfully established that it had handed over the
valuable original loan documents to the senior partner of the Respondent Firm. Hence,
the D.C. of B.C.I. held the senior partner of the firm guilty of committing misconduct by
withholding the valuable documents of the Bank. The D.C. of B.C.I. held that the other
partners cannot be vicariously liable for the misconduct of the senior partner, and they
were exonerated of all charges levelled against them.

ORDER

Therefore the senior partner of the firm was found guilty of serious professional
misconduct and was suspended from practice for a period of 5 years. He was also made
liable to pay a cost of Rs. 5,000 to the Complainant Bank. Other partners of the
Respondent Firm were exonerated of all charges levelled against them.
 CASE 8
(Latches and Negligence in Conducting the Case)
16(3&4) 1989 IBR 536

D.C. Appeal No. 35/1987

N.M. vs. V.D.

Shri L.N.K. Singh (Chairman) and Shri Saradindu Biswas and Shri B.R. Ghosal
(Members)

Judgement Dated 27th May, 1989

FACTS OF THE CASE

Complainant’s Case: Complainant had engaged Respondent-Advocate to represent him

in a civil suit. In that case, Complainant had filed 11 documents. Subsequently the
Respondent started pressing the Complainant to enter into compromise. This made the
Complainant suspicious. Therefore, he engaged another Advocate along with the
Respondent. This Advocate discovered that two very important documents which were
produced in the case were missing from the records. Further inquiry revealed that they
were taken out by the Respondent and he had signed the List of Documents to that
effect, but had no put date in order to mislead the Complainant. Without the knowledge
of these events, the Complainant had led his evidence and he was put to embarrassment
as he could not mark these documents. Thus the Respondent has caused unnecessary
expenditure and difficulties to the Complainant due to his latches and negligence.

Respondent’s Case: Respondent denied the case of the Complainant in toto. He denied
having put pressure upon the Complainant for entering into compromise in the said civil
suit. He also denied that another Advocate came to be appointed out of suspicion about
his conduct. He contended that the two documents named in the complaint were taken
by him and he had signed the list of documents. But the Respondent explained this
contention in a different way in his evidence. He told that the suit was decreed ex parte
after recording ex parte evidence of the Complainant. The Complainant had got all
material documents marked during his examination-in-chief. As the suit was decreed,
the Respondent returned the brief to the Complainant. Subsequently the defendants in
the suit applied for setting aside the ex parte decree. Therefore the Respondent requested
the Complainant to return the papers, but they were never returned to him. Another
Advocate was appointed by the Complainant to represent him. Since then, the
Respondent was not in picture. Thus, even if the two papers were removed by the
Respondent, it has not caused any inconvenience or loss to the Complainant.

18
19 50 Selected Opinions of the Bar Council of India
PROCEEDINGS

D.C. of the S.B.C. found that the documents were taken by the Respondent and he had
not proved that they were delivered to the Complainant. He might have misplaced them
negligently. Contrary to his pleadings and evidence that he had returned the brief and
thereafter had no concern in the suit, it appeared from the records that he acted for
Complainant on subsequent dates also. Therefore, there was variance between pleadings
and evidence. Therefore, the Respondent had committed professional misconduct.

It was clear that the Respondent did not have any use for those documents. He had
nothing to gain by concealing them. Therefore, he was only negligent in misplacing the
documents, and no mala fide intention could be attributed to this act of the Respondent.
The Complainant had not proved the allegation that Respondent pressurised him to
enter into a compromise. Under the circumstances, the D.C. of the S.B.C. felt it
sufficient to reprimand the Respondent. He was also made to pay a cost of Rs. 2000 to
the Complainant.

Against the above order appeal was preferred on the following the grounds:

1. That the D.C. of the S.B.C. has grossly erred in finding that the action of the
Respondent is not mala fide.

2. That the learned D.C. has erred in finding that the Complainant will not suffer
any loss on account of the action of the Respondent.

3. That the learned D.C. has failed to see that the Respondent wanted that the
Complainant’s civil suit be dismissed.

4. That the D.C. has awarded a very lenient punishment for the grave professional
misconduct and the D.C. ought to have removed the name of the Respondent
from the Rolls.

ORDER

After hearing the parties at length, the D.C. of the B.C.I. dismissed the appeal on the
following grounds:

1. The D.C. of the B.C.I. completely agreed with the order of the D.C. of the S.B.C.
that no case of mala fides could be made out by the Complainant. It was not
disputed that the Respondent could not gain anything either by withholding the
document or by losing them. It goes without saying that the lost documents
were of no use to the Respondent.
 50 Selected Opinions of the Bar Council of India 20
2. As the burden of proof in the civil suit did not lie on the Complainant but on the
defendants in the suit, and also because the lost documents could be freshly
obtained by the Complainant, there was no loss to the Complainant in the suit.
However, he would be put to some inconvenience and put to some expenditure
in getting these documents freshly. This aspect had been taken into
consideration by the D.C. of the S.B.C. and costs were awarded to the
Complainant to the tune of Rs. 2000.

3. Considering the materials on the record, B.C.I. had no hesitation in holding that
the third ground of appeal was frivolous and baseless. The conduct of the
Respondent might put the Complainant to great difficulties, but it did not go to
prove that the Respondent had the desire to see that his client visits a failure in
the suit. On the contrary it was clear from the records of the case that he had
won a decree for the Complainant, may be the same was an ex parte decree.

4. The D.C. of S.B.C. had not only reprimanded the Respondent, but also saddled
him with heavy costs. The D.C. of the B.C.I. found the punishment adequate.
 CASE 9
(Negligence in Conducting Case)
14(3) 1987 IBR 488

D.C. Appeal No. 40/1986

G vs. M

Shri M.L. Garg (Chairman) and Shri R.S. Mahendra and Shri N.N. Mathur (Members)

Judgement Dated 27th April, 1987

FACTS OF THE CASE

Complainant’s Case: Complainant obtained a temporary injunction against her

husband restraining him from contracting a second marriage. Subsequently the suit was
dismissed for non-prosecution. Taking this opportunity, her husband remarried on
2.5.1985. Thus, due to the negligence of the Respondent in conducting the case, the
Complainant is put to great loss.

Respondent’s Case: Respondent honestly admitted that he did not appear in the case
on the said date and hence the suit was dismissed. He had to attend the marriage of a
relative on the said date and had requested one of his colleagues to represent in that
case. Before the Respondent could move an application for restoration, the Complainant
withdrew the brief from him.

PROCEEDINGS

Neither party led and produced any evidence. The case was decided by the D.C. of the
S.B.C. on the strength of the pleadings alone. It found that there was no negligence on
the part of the Respondent in the non-prosecution of the case, but he was negligent in
not filing the restoration application. As such he was held guilty of misconduct and was
reprimanded.

In the appeal, the Respondent produced a certified copy of an application filed by the
Complainant in the Court of District and Sessions Judge expressing apprehension that
her husband may remarry. The application was filed in July 1985. This showed that the
Complainant’s and averment that her husband had remarried on 2.5.1985 was false.
The Complainant did not appear before the D.C. of the B.C.I. to explain the discrepancy.
Thus, the Complainant’s version that the negligence on the part of the Respondent gave
an opportunity to her husband to remarry was rejected by the D.C. of the B.C.I.

21
 50 Selected Opinions of the Bar Council of India 22
Further, there was no reason for the D.C. of the B.C.I. to disbelieve the Respondent’s
version that he was not given any opportunity by the Complainant to file a restoration
application, especially when the same had gone unchallenged by the Complainant.
Therefore, the view of the D.C. of the S.B.C. that the Respondent was negligent in not
filing the restoration application was held to be not correct.

ORDER

Therefore, the appeal was allowed and their order and judgement of the D.C. of the
S.B.C. was reversed setting aside the conviction and sentence. The Respondent was
exonerated of all the charges levelled against him.
 CASE 10
(Negligence in Conducting the Case, Inordinate Delay in Filing the Complaint)
14(4) 1987 IBR 735

D.C. Appeal No. 7/1981

C vs. P

Shri N. Rangaraj (Chairman) and Shri K.N. Rajashekhar and Shri P.V. Shetty (Members)

Judgement Dated 20th March, 1987

FACTS OF THE CASE

Complainant’s Case: Complainant and his wife wanted to purchase flat and they
entered into an agreement for the purchase of a flat with an estate agent, and also paid
him some advance money. But the estate agent tried to dupe them. In order to take legal
recourse the Complainant approached the Respondent-Advocate. Complainant paid Rs.
3,000 to the Respondent towards his fees and expenses and obtained a receipt. But the
Respondent-Advocate did not take any action. In the meanwhile, the Complainant could
recover almost the entire amount from the estate agent with the help of the Police.
Therefore, he did not feel it necessary to file suit against the estate agent and therefore,
demanded the money back from the Advocate by writing him a letter. But he did not get
any reply from the Advocate. Therefore, he filed a complaint against him for the
misconduct.

Respondent’s Case: Respondent admitted almost all the facts. But he contended that at
the time of filing the police complaint itself the Complainant had taken back all the
papers as well as the draft plaint prepared by the Respondent. Respondent had drafted
the police complaint and it was agreed that the Respondent should adjust Rs. 500
towards expenses for effecting the compromise through police and Rs. 1,500 were his
fees. Respondent had returned Rs. 1,000 to the Complainant in cash. He claimed that he
had also received a receipt from the Complainant but it was missing. He expressed
suspicion that it might have gone back to the Complainant along with the case papers.
He also contended that the Complainant has filed the complaint only after six years. If
he were really aggrieved, he would not have waited for six years.

PROCEEDINGS

The D.C. of the S.B.C., after going through the evidence, was of the opinion that the
Respondent had not returned the money to the Complainant and therefore, he was held
guilty of misconduct and was suspended from practice for a period of three years.

23
 50 Selected Opinions of the Bar Council of India 24
In the appeal, the Respondent raised a fresh defence that the complaint was time barred
under art. 137 of the Limitation Act. He again stressed that the delay in filing the
complaint itself showed that it was a false complaint.

After going through the records carefully, the D.C. of the B.C.I. was satisfied that the
Respondent had refunded Rs. 1,000 to the Complainant after deducting Rs. 2,000
towards his professional charges. It accepted the contention of the Complainant that due
to inordinate delay in filing the complaint it was very difficult for him to produce the
necessary evidence. D.C. of the B.C.I. accepted all the contentions of the Respondent
and expressed its reluctance to believe that the aggrieved Complainant would have
waited for a long period of six years before filing the complaint.

ORDER

Hence it allowed the appeal, and the conviction and the sentence passed by and the
lower D.C. was set aside. The D.C. of the B.C.I. did not deem it necessary to give its
opinion on the point limitation.
 CASE 11
(Negligence Not Amounting to Misconduct)
23(1) 1996 IBR 152

D.C. Appeal No. 19/1993

A vs R

Shri G.D. Bhatt (Chairman) and Shri B.R. Sharma and Shri J.B. Pardiwala (Members)

Judgement Dated 30th September, 1995

FACTS OF THE CASE

Complainant’s Case: In his complaint, the Complainant made several allegations

against the Respondent. The main allegations were,

1. That Respondent-Advocate wrongly identified one woman in place of another at

the time of attestation of a General Power of Attorney before the Sub-Registrar.

2. That the Respondent was in the habit of disclosing privileged communications

and secrets of his clients to the opposite parties for his personal benefits.

3. That the Respondent used to misuse the names of the presiding officers to get
briefs.

4. That the Respondent was working as an estate agent.

Respondent’s Case: In his defence, the Respondent denied all the allegations levelled by
the Complainant against him. He, however, admitted that he had identified some ladies
at the time of attestation of the G.P.A., but contended that he had acted in good faith at
the instance of a deed writer.
PROCEEDINGS

The D.C. of S.B.C. held the Respondent guilty of misconduct only on account of his
identifying the wrong persons at the time of attesting the GPA before the Sub-Registrar.
The S.B.C. was silent about all other allegations.

The D.C. of B.C.I. went through all the records of the case thoroughly. The GPA in
question was executed by four ladies, out of which three ladies were present at the time
of attestation, and in place of the fourth lady, another woman was made to be present
before the Sub-Registrar. They were all identified by the Respondent-Advocate. This was
an admitted fact. The question before the D.C. of B.C.I. was whether this was a bona
fide mistake on the part of the Respondent or was done with a mala fide intention of

25
 50 Selected Opinions of the Bar Council of India 26
causing wrongful loss to another person. The records revealed that the GPA was not
used to the prejudice of the lady in whose place the wrong woman was identified. The
said lady had applied for the cancellation of the GPA on the ground that a wrong lady
was identified in her place, and also for an action against the deed writer. The
GPA-holder admitted in his evidence that the Respondent had represented the accused
in a criminal complaint filed by the Complainant herein. Other serious allegations made
in the complaint were not pressed evidently for the lack of evidence.

In view of all these circumstances, the D.C. of the B.C.I. felt that the reason given by the
Respondent that he had identified a wrong lady at the instance of the deed writer was
acceptable. The Disciplinary Proceedings being quasi criminal in nature, the
Complainant has to prove mens rea beyond reasonable doubt. In this case, Complainant
had failed to prove mens rea beyond reasonable doubt.

ORDER

Hence, the appeal was allowed and the punishment awarded to the Respondent by the
D.C. of S.B.C. was set aside.

The D.C. of B.C.I. relied upon decisions reported in 1995 Chandigarh LR 167 and AIR
1940 All. 289.
 CASE 12

(Negligence Not Amounting to Misconduct)

16(2) 1989 IBR 273

D.C. Appeal No. 24/1987

R.M. vs. A.R. and P.M.

Shri V. Rajayah (Chairman) and Shri N. Rangaraj and Shri V.R. Reddy (Members)

Judgement Dated 2nd September 1988

FACTS OF THE CASE

Complainant’s Case: Complainant entrusted to the Respondent certain files and

records for a filing of two cases. These cases were to be filed against the Stock Exchange
and a company for not delivering shares to him as per the agreement. These two files
contained very important records. One of them was a letter from the company admitting
liability to pay Rs. 51,900 to the Complainant.

Respondent No. 1 advised the company that there is no use in filing the legal
proceedings against the company and that it is better to settle the matter out of the
Court through Respondent No. 2. But the efforts for settling the case out of Court were
not fruitful and Complainant sought for the return of papers. In the mean time,
Respondent No. 2 left Madras and settled at Salem. Respondent No. 1 gave a letter to the
Complainant addressing the Respondent No. 2 for return of those files. Complainant met
Respondent No. 2 at Salem, but could recover only one file. Even though persistent
efforts were made, the Complainant could not recover the files from the Respondents.
The file contained material documents on which the Complainant’s claim against the
company was based. As such, the Respondents have committed the professional
misconduct by not returning the papers.

Respondent No. 1’s Case: Respondent No. 1 admitted that he was approached by the
Complainant with the said case. But he contended that he was not well versed in subject
and therefore, he referred the case to Respondent No. 2, and thereafter Respondent No.
2 took all the responsibilities of the case. Hence, he has nothing to do with the alleged
misconduct.

Respondent No. 2’s Case: Respondent No. 2 admitted that the case was referred to him
by Respondent No. 1 and also that the two files were entrusted to him by the
Complainant. He also admitted that he had advised for settlement of the matter out of
Court and that the settlement could not be materialised. In the meanwhile, due to old

27
 50 Selected Opinions of the Bar Council of India 28
age and certain other problems he had to leave Madras once for all and settle at Salem.
Thereafter the Complainant approached him and sought for return of the files. He
returned the first file, but could not trace the second. He searched his office thoroughly
and also got the office of the Respondent No. 1 searched thoroughly. Respondent No. 2
categorically stated that Respondent No. 1 was in no way involved in the case but for the
fact that the case came to Respondent No. 2 through Respondent No. 1. He stated that
allegations made against Respondent No. 1 were absolutely incorrect. Respond No. 2
also stated that he did not conceal any file, and at the age of 70 years he had no
necessity for doing so. First file contained all the material documents and the second file
did not contain any material documents. All material documents on which the claim of
the Complainant was based were returned to him and hence there is no case of
misconduct against him also.

PROCEEDINGS

Complainant examined himself as his witness and his examination-in-chief was

recorded. The case was posted for his cross-examination. But he did not present himself
for cross-examination. The Complainant was absent before the S.B.C. on many
occasions earlier also. Keeping in view the nature of allegations made by the
Complainant against the Respondents and his conduct before the D.C. of the S.B.C., the
S.B.C. dismissed the case for default.

The Complainant could have filed an application before the S.B.C. itself for restoration of
the complaint. But he chose to prefer appeal against the order of the S.B.C. But he was
not present before the Bar of Council of India also in spite of the notice served upon him.
He submitted through a letter that he knew only Tamil and could not argue either in the
English or in Hindi. Therefore, he requested the D.C. of the B.C.I. to decide the case on
the merits from the records only. The inquiry was held at Madras. Even then, the
Complainant remained absent. The Respondents were present both before the S.B.C.
and before the B.C.I. throughout the proceedings.

The B.C.I. looked into the pleadings and material documents present it in the case by
the parties. In his appeal memo, the Complainant had made several allegations against
the Chairman and the Members of the D.C. of the S.B.C. and had contended that it was
a waste of time to be present before them as they were favouring the Respondents. He
did not have any hope of getting justice from them. B.C.I. took these allegations
seriously, and observed that the Complainant had no business to say any such thing
against the Chairman or the Members of the D.C. of S.B.C. without cogent evidence in
support of such allegations. However, the B.C.I. also observed that D.C. of S.B.C. had
not given the Complainant sufficient opportunity for cross-examination.

One of the letters produced by the Complainant was addressed to Respondent No. 1,
which stated that Respondent No. 2 was supporting the company, and blackmailing the
Complainant. Hence, he should make all efforts to get the papers back from Respondent
29 50 Selected Opinions of the Bar Council of India
No. 2. He had also sent a D.D. for Rs. 240 with the letter. This D.D. was not encashed
by Respondent No. 1 as he had nothing to do with the case. The letter also clearly
disclosed that it is only Respondent No. 2 who was involved in the case. Hence, B.C.I.
had no hesitation in holding that the case against Respondent No. 1 was not proved.

From the pleadings and evidence it was clear that Respondent No. 2 was negligent in
losing the case papers entrusted to him. But this negligence did not amount to
misconduct. B.C.I. relied upon the decision of a Supreme Court reported in AIR 1984 SC
101 which is based on a decision of the Madras High Court reported in AIR 1926 Mad
568.

ORDER

Therefore, the appeal was dismissed with a cost of Rs. 1,000 payable to Respondent No.
1 only.
 CASE 13
(Negligence Not Amounting to Misconduct)
16(2) 1989 IBR 285

D.C. Appeal No. 3/1988

J.M. vs. S.S.

Shri V. Rajayah (Chairman) and Shri N. Rangaraj and Shri V.R. Reddy (Members)

Judgement Dated 2nd September 1988

FACTS OF THE CASES

Complainant’s Case: The Complainant had met with an accident due to a rash and
negligent driving of a lorry driver, due to which the lorry hit against the Complainant.
The Complainant was hospitalised and during the period of his treatment in the hospital
as an in-patient, he filed a case for compensation against the lorry driver, the lorry
owner and the insurer of the lorry. This case was a filed through a clerk of the
Respondent, who approached the Complainant for the case. After the discharge of the
Complainant from hospital, the Complainant found that no case had been filed by the
Respondent-Advocate. He sought for the return of papers. Even then the papers were not
returned to him. Hence the Respondent-Advocate is guilty of the grave professional
misconduct by not filing the case in spite of payment of fees and by not returning the
case papers in spite of the request.

Respondent’s Case: The Respondent admitted the fact that he had filed the case of the
Complainant, but categorically denied that his clerk had approached the Complainant
for the case. According to the Respondent, a friend of the Complainant had approached
the Respondent for filing of the case. The Respondent further stated that the case filed
by him was returned for the want of certain the particulars. He had written several
letters to the Complainant as well as to the friend of the Complainant who had entrusted
the case to him, for the supply of those details. He had not received any reply from either
of them. The Respondent alleged that the Complainant did not pay him the fees as
promised by him.

Respondent admitted that he had received the letter from the Complainant seeking the
return of papers, but contended that though he had written back to him to come to his
office and collect the papers. But the Complainant did not collect papers from his office.
Therefore he has not committed any misconduct, professional or otherwise.

30
31 50 Selected Opinions of the Bar Council of India
PROCEEDINGS

After going through the evidence on record, the S.B.C. was of the opinion that the
Respondent had not produced any evidence to show that he had replied the letters of the
Complainant. The Respondent had stated that usually such letters are replied in the
routine course by the clerk. However he also stated that he remembered to have replied
the letter of the Complainant personally. But he had not sent it through registered post.
But for the self-serving statement of the Respondent there was no other evidence on
record to show that the letter was supplied by the Respondent. Therefore the D.C. of the
S.B.C. found him guilty of misconduct.

As far as filing of case is concerned, the Respondent had stated that he had filed the
case but the same was returned to him for the want of particulars. He had contacted the
Complainant and also his friend for those particulars for no avail. Complainant said that
he had inquired with the police station for those details and was informed that the
Respondent had already collected those details from the Police Station. S.B.C. did not
accept this statement of the Complainant, because an Advocate could not have collected
those documents. Therefore the say of the Complainant that he did not reply to letters
written by the Respondent because the details were already collected by the Respondent
was rejected by the D.C. of the S.B.C. This view of the S.B.C. was upheld by the B.C.I.

Now the only question before of the B.C.I. was whether the non-reply of the
Complainant’s letter by the Respondent amounted to negligence amounting to
professional misconduct. It was clear from the records that no substantial injury or
inconvenience was caused to the Complainant by the act of the Respondent. Therefore,
though the Respondent’s act amounted to negligence, it did not amount to professional
or other misconduct.

In support of its order, the B.C.I. relied upon the decision of the Supreme Court reported
in AIR 1984 SC 110, and the decision of Madras High Court reported in AIR 1926
Madras 568.

ORDER

In view of the above circumstances, the D.C. of the B.C.I. was pleased to interfere with
the order passed by the D.C. of S.B.C. finding the Respondent guilty of professional
misconduct and the impugned order was set aside. In the result, the appeal was allowed.
 CASE 14
(Withholding Documents)
14(3) 1987 IBR 491
D.C. Appeal No. 10A/1986
D.C. Appeal No. 10/1986

R vs. L.J. L.J. vs. R

Shri N. Rangaraj (Chairman) and Shri K.N. Rajashekhar and Shri P.V. Shetty
(Members)
Judgement Dated 4th August, 1987

FACTS OF THE CASE

Complainant’s Case: Complainant had entrusted a Promissory Note to the Respondent

to issue a notice to the debtor, and had paid the fees therefor. The notice came to be
issued and subsequently the Complainant demanded the notice back so that he could
file a suit through some other Advocate. But the Respondent-Advocate refused and
demanded exorbitant fee through a notice. This was replied by the Complainant stating
that he was not liable to pay fees as demanded by the Respondent and again reiterated
his demand for the return of the Promissory Note. The Respondent did not take any step
to return the Promissory Note and the suit became time barred causing loss to the
Complainant to the tune of Rs.11,000.

Respondent’s Case: Respondent admitted the receipt of the Promissory Note. He also
admitted the demand of fees but justified his claim. As the fee was not paid he had
exercised his right of lien. The Complainant and the Respondent resided in the same flat
and there were some disputes between their families in respect of sharing of tap water,
etc. Therefore, this complaint was filed to take revenge.

PROCEEDINGS

From the records and also from the admission of the Respondent it was clear that the
Complainant had entrusted him the Promissory Note. It was also clear that after the
notice was issued by the Respondent, the Complainant demanded the Promissory Note
back and also gave a notice that if the Respondent failed to return the Promissory Note,
he would file a complaint before the S.B.C. But the Respondent did not care to reply the
notice, let alone to return the Promissory Note.

The question before the D.C. of the S.B.C. was whether the Respondent had the right to
withhold the document. Normally no Advocate issues any notice without collecting the
charges. Therefore, the Respondent’s demand for fees after a period of one year was
found to be unusual. Respondent justified his claim for exorbitant fees on the ground
that he had prepared plaint. But the Complainant said that he had not given any
instructions for preparing the plaint. Further, the Respondent did not produce the draft

32
33 50 Selected Opinions of the Bar Council of India
plaint. Therefore, the Advocate had no right to withhold the document and as such he
was held guilty of misconduct. The D.C. of the S.B.C. punished the Respondent by
suspending him for a period of 1 month without costs.

In appeal there were two questions before the D.C. of the B.C.I.:

1. Whether the failure on the part of the Respondent to return the documents to
the Complainant amounted to misconduct?

2. If so, is the punishment awarded by the lower D.C. sufficient?

ORDER

The D.C. of the B.C.I. agreed with the decision of the D.C. of the S.B.C. on the first
issue, but modified the order of the D.C. of the S.B.C. by adding costs of Rs. 1,000. The
D.C. of the B.C.I. did not interfere to modify the order of suspension by enhancing it as
the Complainant had already initiated civil proceedings to recover the damages for the
loss caused him.
 CASE 15
(Failure to Render Accounts, Misappropriation of Money, Withholding of
Documents)
14(4) 1987 IBR 745

D.C. Appeal No. 12/1986

A vs. P

Shri N. Rangaraj (Chairman) and Shri K.N. Rajashekhar and Shri P.V. Shetty (Members)

Judgement Dated 28th February, 1987

FACTS OF THE CASE

Complainant’s Case: Complainant used to entrust his cases to the Respondent-

Advocate for several years. Some such cases were the rent control cases. In these cases
the Respondent did not tender accounts to the Complainant and never paid the money
due to him. Therefore he wanted to withdraw the cases from the Respondent-Advocate.
But the Respondent-Advocate did not return the case papers to him. Thus he has
committed professional misconduct by withholding the documents.

Respondent’s Case: In his defence the Respondent categorically denied that the facts
mentioned in the complaint. He also expressed that he was much deplored of the
attitude and behaviour of the Complainant. He pleaded that he used to help the
Complainant at the time of financial distress by obtaining loans for him. It was further
contended that the Respondent used to repay the loans from the rents received by him
on behalf of the Complainant. He also claimed that the Complainant was in arrears of
fees. He also produced a statement of accounts.

PROCEEDINGS

The D.C. of the S.B.C. went through the records carefully and found from the evidence
that the Respondent had returned the case papers to the Complainant and also that he
had never withheld any money from him. It also pointed out that the Complainant had
not approached the Bar Council with clean hands. He had never made any efforts to
realise what amount was due to him from the Respondent. He could have gathered this
information from the court or from the tenants themselves. D.C. of the S.B.C. also
found that the Respondent had helped the Complainant by arranging loans for him from
another client. This was clearly shown by the documents produced by the Respondent. It
was also evident from the records that the Advocate for a tenant had paid Rs. 500 to the
Respondent towards rents due to the Complainant. The Respondent had returned the
money to the Advocate for the tenant as the same was not collected from him by the

34
35 50 Selected Opinions of the Bar Council of India
Complainant. Postal acknowledgement signed by the Complainant for having received
the case papers sent to him by the Respondent was produced before the D.C. of the
S.B.C. Therefore the D.C. of the S.B.C. dismissed the complaint exonerating the
Respondent.

The D.C. of the B.C.I. upheld the decision of the D.C. of the S.B.C. It observed that the
present complaint filed by the Complainant was criminal in nature. Therefore, the
Complainant had to prove his case beyond all reasonable doubts. The Complainant had
failed in proving his case. Therefore D.C. of the S.B.C. was held to be right in dismissing
the complaint.

ORDER

In the result, the appeal was dismissed and the order of the lower D.C. was upheld.
 CASE 16
(Misappropriation of Client’s Money)
24(1&2) 1997 IBR 271

D.C. Appeal No. 13/1991

A vs. R

Shri D.V. Patil (Chairman) and Shri S.C. Chawla and Shri S.G. Nair (Members)

Judgement Dated 14th September, 1996

FACTS OF THE CASE

Complainant’s Case: Complainant’s husband was the owner of some houses in

Singavaram Village, Alampur (W), Mahaboobnagar Dist. Those houses were submerged
in Srisailam Project and a compensation of Rs. 2,80,533.40 came to be deposited by the
Govt. in the Sub-Court, Gadwal. Respondent-Advocate represented the Complainant’s
husband in that case. Complainant used to accompany her husband whenever he went
to visit the Respondent. Later on her husband was missing and an advertisement was
issued in Newspaper by her brother-in-law. In the mean while the compensation amount
was deposited by the Court in Complainant’s husband’s account in Canara Bank,
Mahaboobnagar Branch. Complainant requested the Respondent to help her to withdraw
the amount from the bank, to which the Respondent agreed. Thus, he has the
knowledge that Complainant’s husband was missing. Respondent avoided helping the
Complainant on one pretext or the other. Subsequently, Complainant came to know that
the compensation amount was withdrawn by her husband. In fact it was withdrawn by
the Respondent by forgery. She claimed the money from the Respondent but he refused.
She sent him a legal notice which returned unserved. Later on Respondent returned Rs.
2 lakhs to the Complainant and she claimed the remaining amount of Rs. 80,533.40
with interest. But the same is not returned to her.

Respondent’s Case: Respondent denied entire case of the Complainant. He denied that
he knew the Complainant to be the wife of his client. His client was illiterate and hence
his account was opened in Canara Bank, Mahaboobnagar with his photograph. He
pleaded ignorance about the whereabouts of his client. He denied that he had forged the
cheque to withdraw the amount. He also contended that he had come to know that
Complainant was not living with her husband for quite some time.

36
37 50 Selected Opinions of the Bar Council of India
PROCEEDINGS

Complainant did not appear before the D.C. of S.B.C. in spite of several notices. She also
did not produce any evidence. The D.C. of S.B.C. proceeded to consider the matter on
the basis of its own comparison of thumb impressions on the original petition in the case
filed by him and on the affidavit which dated later to the date from which the client was
missing. Hence it became suspicious of the genuineness of the thumb impression and
suggested that it was necessary to hand over the matter for the further investigation to
the Magistrate or the Police Officer.

B.C.I. was unable to agree with the reasoning given by the S.B.C. in the absence of any
substantive evidence on record. Only an advertisement was issued in the newspaper in
respect of missing of the Complainant’s husband. That was not sufficient for the B.C.I.
to reach a conclusion that he was really missing. Neither the script of the advertisement
was produced before the D.C. nor was the evidence of the person who issued it was
recorded. B.C.I. felt it dangerous to make cuttings of newspaper basis of decisions
dealing with the lives of professionals. Hence it was held that the D.C. of the S.B.C. had
erred in depending its decision on such uncreditworthy evidence.

B.C.I. also felt that the inference of S.B.C. that the thumb impressions of Complainant’s
husband on the affidavit were not genuine on its own comparison of the thumb
impressions was uncalled for. Hence the conclusion that the withdrawal of amount was
under suspicious circumstances also went unsupported by the evidence. B.C.I.
expressed its surprise over the observation of S.B.C. that the Complainant’s appearance
before it was withheld by the Respondent in the absence of any creditworthy evidence.

B.C.I. also observed procedural flaws in the proceedings of S.B.C. S.B.C. had not framed
any issues or charges in the case. In normal course the B.C.I. would have framed the
issues itself and proceeded with the case. But in view of total lack of evidence in this
case B.C.I. considered it a futile exercise and decided to set aside the order of S.B.C.
without any further procedure.

ORDER

The Respondent-Advocate was found not guilty. The appeal was allowed and the order
dated 13.7.1991 passed by the D.C. of Andhra Pradesh S.B.C. in CC No. 21/90
removing the name of the Respondent from the Roll of Advocates was set aside.
 CASE 17
(Breach of Trust)
23(1) 1996 IBR 135

D.C. Appeal No. 24/1990

A vs. R

Shri D.V. Patil (Chairman) and Shri R.S. Chahar and Shri Khazan Singh (Members)

Judgement Dated 4th June, 1993

FACTS OF THE CASE

Complainant’s Case: Complainant was a General Power of Attorney-holder of his

mother-in-law, one Mrs. Mary Raymond, during her life time, and her L.R. after her
death. Respondent was the Advocate of the said lady and he had prepared her will. The
will was in the custody of the Respondent. The Respondent had passed a receipt to that
effect. Subsequently Mrs. Raymond changed her Advocate and the new Advocate
requested the Respondent to hand over the will to him. Respondent refused to hand over
the will. Therefore Mrs. Raymond got a new will prepared by the new Advocate. Even
thereafter, the Complainant made several requests to the Respondent to hand over the
will to him, but all his efforts were fruitless. Thus, the act of the Respondent was
mischievous, and had Mrs. Raymond died intestate, it would have resulted in serious
damage to her.

PROCEEDINGS

D.C. of Karnataka S.B.C. rejected the complaint holding that there was no prima facie
case. This order was set aside by the B.C.I. and hearing was ordered.

Both parties were heard by the D.C. of Karnataka S.B.C. and the complaint was
dismissed holding that the will had become res nullius and the Respondent was not
liable to return it. D.C. of S.B.C. gave special emphasis on the fact that there was
considerable delay in filing the complaint. It also observed that the complaint arises out
of animosity between parties. In any case, it was held that the Complainant nowhere
alleged the misuse of the will by the Respondent, and he could not prove that its non
return caused any loss or damage to the Complainant or Mrs. Raymond.

D.C. of B.C.I. differed on all these views expressed by the D.C. of Karnataka S.B.C. The
said will was the property of Mrs. Raymond and she was entitled to recover the same
from the Respondent during her life time. After her death the Complainant who was her

38
39 50 Selected Opinions of the Bar Council of India
Legal Representative was entitled to recover it. This was not disputed by the Respondent.
Therefore, non-return of will amounted to breach of trust on the part of the Respondent.
Mere refusal to return the will was sufficient to make the Respondent liable for
misconduct and it was immaterial whether or not the will was misused by him, or
whether or not the non-return of the will resulted into any loss or damage to Mrs.
Raymond or to the Complainant. B.C.I. also observed that mere delay in complaint or
strained relations between the parties per se would not make the complaint false.

ORDER

In the result, the appeal was allowed and order of the D.C. of the Karnataka S.B.C. was
set aside. The Respondent was held guilty of misconduct. He was suspended from
practice for a period of one year.
 CASE 18
(Failure to Render Accounts, Misappropriation)
16(1) 1989 IBR 122

D.C. Appeal No. 41/1987

A.K. vs. J.L.

Shri V. Rajayah (Chairman) and Shri N. Rangaraj and Shri V.R. Reddy (Members)

Judgement Dated 2nd September 1988

FACTS OF THE CASE

Complainant’s Case: Complainant had entrusted certain cases under the Rent Control
Act to the Respondent-Advocate and had paid him certain amounts for depositing in the
Court. These amounts were misappropriated by the Advocate, and he did not properly
account for these amounts whenever called upon by the Complainant. Further, the
Respondent did not conduct the case is properly and as a result, eviction order to vacate
the petition premises occupied by the Complainant as tenant came to be passed against
the Complainant. Therefore, as a result of the Advocate’s act, the Respondent not only
suffered monetary loss but also was evicted from the premises.

Respondent’s Case: Respondent-Advocate admitted the averments that he was

entrusted with the cases as alleged in the complaint, but denied that he was given any
money for the purpose of depositing in the Court. The relations between the
Complainant and the Respondent were strained and to harass the Respondent the
Complainant has also filed a false criminal complaint against the Respondent, his wife
and another. An erstwhile junior of the Respondent had, out of professional jealousy,
tutored the Complainant in filing that false complaint against the Respondent. All the
facts in the complaint are false and the same should be dismissed.

PROCEEDINGS

From the pleadings of both sides the Bar Council framed the following issues:

1. Whether the Respondent has committed misappropriation of money entrusted

to him by the Complainant for depositing in the Court?

2. Whether the Respondent was negligent in conducting the case of the

Complainant as a result of which adverse orders came to be passed against the
Respondent?

40
41 50 Selected Opinions of the Bar Council of India
The parties lead oral evidence and also produced certain documents. The most
important of these documents was a copy of R.C.O.P. for deposit of rent on behalf of the
Complainant.

D.C. of the S.B.C., after going through the oral and documentary evidence carefully
came to the conclusion that Complainant had not proved the charge of professional
misconduct by the Respondent and therefore, dismissed the complaint.

The D.C. of the B.C.I. upheld the order of the D.C. of the S.B.C.

Neither the Complainant nor his witnesses had come forward with a clear-cut case of
misappropriation of funds. Apart from the oral evidence, there was no substantial
evidence on record to show that the monies were entrusted to the Respondent-Advocate.
The R.C.O.P. was produced by the Complainant to show that the amount was entrusted
to the Respondent. But there was no other evidence to show what order came to be
passed on The R.C.O.P. Whether any amount was deposited or whether the petition was
dismissed for the want of deposit is not known.

The Complainant said that he has taken certain amounts to the Respondent towards
fees, expenses, etc. without producing any evidence for the payment of the said amount.

Complainant further contended that he had paid the Rs. 4,000 to the Respondent to
procure an electricity generator on hire purchase through bank, as the landlord had
disconnected electricity to the premises. He did not produce any voucher for the same.
Further it was not necessary for him to approach the Respondent-Advocate for the
purchase of generator on hire purchase through a bank. He could have done it on his
own. He did not even produce any application or recommendation.

On all these counts, the D.C. of both S.B.C. as well as the B.C.I. formed the opinion that
the evidence produced by the Complainant was not sufficient to establish the severe
charges levelled against the Respondent-Advocate.

ORDER

Hence the Complainant’s case was dismissed.

 CASE 19
(Misappropriation of Client’s Money)
15(3&4) 1988 IBR 359

D.C. Appeal No. 21/1985

G. vs. T.

Shri D.V. Patil (Chairman) and Shri N.K. Jain and Shri J.K. Singh (Members)

Judgement Dated 9th July, 1988

FACTS OF THE CASE

Complainant’s Case: Complainant and other co-sharers in a land acquired by the

government were awarded compensation in some land acquisition matters. The
Respondent-Advocate was authorised to receive the compensation money from the
Collector after complying with the necessary legal formalities. Accordingly the
Respondent-Advocate received compensation money, but he did not pay the same to the
Complainant in spite of several requests.

Respondent’s Case: Respondent denied that he had received money from the Collector
on behalf of the Complainant. But during the proceedings before a the D.C. of S.B.C. he
asserted that he had received the cheque on behalf of the Complainant and after
encashing it he had handed over the cash to his registered clerk for delivering it to the
Complainant. He prayed for summoning the clerk. The clerk denied that the signature
on the receipt was his signature and maintained that it was the signature of the
Complainant.

PROCEEDINGS

The Respondent at first denied that he had received a money on behalf of the
Complainant. Then he said that he had received the cheque and after encashing it he
had sent the money to the Complainant through his clerk. The receipt produced by the
Respondent disclosed that the money paid to the Complainant under that receipt was in
respect of some other matters. It was not in respect of the Land Acquisition Matters
mentioned in the complaint. Therefore the receipt did not help the Respondent in the
present case.

The Respondent had admitted that he had received money on behalf of the Complainant,
but he failed to prove that he had paid the money to the Complainant.

42
43 50 Selected Opinions of the Bar Council of India
ORDER

Therefore DC of the SBC held that the Respondent was guilty of professional misconduct
by misappropriating client’s money. In the result, his name was removed from the Roll of
Advocates.

This order was confirmed by the DC of the BCI. DC of the BCI further awarded costs of
Rs. 500 to the Complainant.
 CASE 20
(Misuse of Position of Advocate and Confidence of the Client)
15(3&4) 1988 IBR 364

B.C.I. Tr. Case No. 43/1982

S and H. vs. T.

Shri D.V. Patil (Chairman) and Shri N.K. Jain and Shri J.K. Singh (Members)

Judgement Dated 9th July, 1988

FACTS OF THE CASE

Complainant’s Case: Complainants were entrusting all their cases to the Respondent
and had confidence in him. Respondent made an offer to Complainants that the
Complainant No. 1, the wife of the Respondent and another two persons could form a
partnership for the manufacturing and sale of bricks. This offer was accepted by the
Complainant No. 1 and she paid the Rs. 18,496 to the Respondent towards her share
capital. The firm was established but no partnership deed came to the executed. Later
on, the Respondent executed a partnership deed excluding his wife and Complainant
No. 1. Complainant realised the foul play on the part of the Respondent an approached
him for the rendition of accounts. But this failed as the Respondent refused to show
accounts. Thus the Respondent has committed professional misconduct by misusing his
power as an Advocate who was enjoying confidence of the Complainants as their
Advocate and legal adviser.

Respondent’s Case: The Respondent denied all the allegations in the complaint. He
denied the facts of payment of money to him by the Complainant No. 1 and also the fact
that his wife was a partner in the business. Therefore, he had not taken any advantage
of his position as Advocate. Hence there is no misconduct on his part.

PROCEEDINGS

D.C. of the B.C.I. went through the materials on record and heard both sides. There was
some evidence to show that the Respondent’s wife was carrying on the business of
bricks. But there was no evidence as to the partnership. Nowhere it was alleged and
proved that the Respondent was involved in the business. No independent evidence to
show the role of the Respondent in the business was placed on the record. Simply
because the Respondent was the counsel of the Complainants and that resulted into
friendship does not mean that any act committed thereafter would lead to professional
misconduct.

ORDER

On these grounds the complaint was dismissed.

44
 CASE 21
(Misuse of Client’s Confidence)
15(3&4) 1988 IBR 374

D.C. Appeal No. 28/1986

J. vs. Smt. A.

Shri M.L. Garg (Chairman) and Shri N.K. Jain (Member)

Judgement Dated 3rd July, 1988

FACTS OF THE CASE

Complainant’s Case: Complainant and her husband negotiated for the purchase of
some immovable property in Bangalore and approached the Respondent for the
preparation of the sale deed. There were two separate sale agreements prepared by the
Respondent. Complainant paid some advance to the vendee and the agreement was
signed by both the parties. Complainant paid Rs. 23,000 to the Respondent for
purchasing the stamp papers necessary for executing the sale deed. In fact, the stamp
papers necessary for the sale deed where of Rs. 20,800. The Complainant and her
husband came from abroad for signing the sale deed. But the sale deed was not ready.
In the meanwhile, the Complainant came to know through a telegram sent to her by an
Advocate that there was a dispute in respect of the said property. Therefore she
cancelled the idea of purchasing the property and requested the Respondent to hand
over the stamp papers to her. But the Respondent told that the papers were misplaced
and assured to repay the amount. In pursuance thereof he gave her a cheque for Rs.
21,000 which came to be dishonoured. Thereafter, the Complainant approached the
Respondent and the Respondent paid Rs. 8,000 to the Complainant in two instalments
and promised to the Rs. 15,000 later. But he never paid Rs.15,000 to the Complainant.
Thus the Respondent has committed professional misconduct by misappropriation of
the client’s money.

PROCEEDINGS

The D.C. of the S.B.C. found the Respondent guilty of misconduct and ordered removal
of his name from the State Roll. It also ordered him to pay Rs. 15,000 to the
Complainant.

In the appeal, the Complainant submitted that she had received the balance of Rs.
15,000 also from the Respondent. Therefore, she had no objections for allowing the
appeal, as she did not want to pursue the matter. But the B.C.I. did not find it correct to
discharge the Respondent- Advocate from the liability of misconduct committed by him.

45
 50 Selected Opinions of the Bar Council of India 46
In the opinion of the B.C.I. he had committed misconduct by not proving worthy of the
profession and abusing the trust reposed in him by his client. He had misappropriated
client’s money and had allowed the cheque to be dishonoured. The Respondent admitted
that he had given the money to his clerk for the purchase of stamps but the client had
disappeared with the money and Advocate had filed a police complaint in respect of the
matter.

ORDER

The B.C.I. was of the opinion that the removal of the name of the Respondent from the
state Roll was too harsh. Therefore it was reduced to reprimand.
 CASE 22
(Misappropriation of Client’s Money)
14(2) 1987 IBR 319

D.C. Appeal No. 38/1984

M vs. R

Shri V. Rajayyah (Chairman) and Shri N. Rangaraj and Shri V.R. Reddy (Members)

Judgement Dated 9th February, 1987

FACTS OF THE CASE

Complainant’s Case: Complainant had engaged the Respondent in the eviction petition
in an H.R.C. case. The Respondent won the case for the Complainant and the tenant
preferred revision petition before the District Judge, Mysore. In that revision case, the
tenant deposited arrears of rent in the Court. The amount was withdrawn by the
Respondent-Advocate, but was not paid to the Complainant in spite of several letters
and reminders. Thus, he had committed misconduct by misappropriation of money.

Respondent’s Case: Respondent admitted the withdrawal of money but he claimed that
the amount was slightly less than what was stated in the complaint. It contended that
he had paid the entire amount to the Complainant and had taken vouchers from him.
He alleged that the Complainant had not paid him any fee.

PROCEEDINGS

The D.C. of B.C.I. had two questions before it.

1. Whether the Respondent had paid money to the Complainant and obtained the
receipt as averred by him?

2. If not, was the punishment given by the D.C. of the S.B.C. adequate or should it
be enhanced?

Both the D.C.s went through the records carefully and found from the records and also
from the admission of the Respondent that he had withdrawn the money as stated in the
complaint. Records also clearly indicated that the act of withdrawal of money was
fraudulently concealed from the Complainant, but when the case was filed the
Respondent came out with a new theory that he had paid the entire amount to the
Complainant. However the receipt produced by him was dated 3.9.1988 to whereas, he
had withdrawn the money on 4.9.1988. Therefore, the D.C.s did not choose to believe

47
 50 Selected Opinions of the Bar Council of India 48
the version of the Respondent. A cursory perusal of the receipt indicated that it is not a
genuine receipt. Respondent had also alleged that the complainant had not paid him his
fee. In such an event, the Respondent would have deducted the fee from the money. He
would not have paid the entire amount. Thus, the version of the Respondent was totally
rejected by the D.C. and he was found guilty of misconduct by misappropriation of
client’s money and also by his conduct he had brought down the dignity of the
profession.

ORDER

The D.C. of the S.B.C. recorded conviction and sentenced the Respondent with
suspension for a period of one year.

The D.C. of the B.C.I. felt the punishment inadequate and ordered the removal of the
name of the Respondent from the State Roll.
 CASE 23
(Forgery and Misappropriation of Money)
14(3) 1987 IBR 496

D.C. Appeal No. 7/1986

K vs. V

Shri N. Rangaraj (Chairman) and Shri K.N. Rajashekhar and Shri P.V. Shetty (Members)

Judgement Dated 4th August, 1987

FACTS OF THE CASE

Complainant’s Case: Complainant had filed a suit for recovery of money from the
Defendant in that suit. He filed an application for attachment before judgement in
respect of the defendant’s money standing in deposit at the Post Office. The application
was allowed. Later on, when the suit was decreed in favour of the Complainant, the
attachment was made absolute. The Complainant engaged the Respondent-Advocate for
the purpose of withdrawing the money through the court. He signed the vakalatnama
and paid fees to the Respondent. Even after a long time the Complainant was told by the
Respondent that the court had not yet received the money. Becoming suspicious, the
Complainant made enquiry in the Court and found that the Respondent had forged the
signature of the Complainant on all legal papers and withdrawn the money which had
been received by the Court from the Post Office long back. The Complainant issued two
notices to the Respondent calling upon him to pay him the money. Though both the
notices were received by the Respondent, he did not care to reply them. Therefore he had
committed misconduct by forgery and misappropriation.

Respondent’s Case: The Respondent did not file any defence.

PROCEEDINGS

The Complainant passed away even before the date of first hearing before the D.C. of the
S.B.C. The Legal Representatives of the Complainant were brought on record and the
son of the deceased Complainant appeared with Power of Attorney from other Legal
Representatives. On the subsequent date of hearing the Legal Representatives were not
present before the D.C. of the S.B.C., but their Counsel was present. He expressed that
he had no knowledge about a memo received by the D.C. of the S.B.C. to the effect that
the Legal Representatives had received the money from the Respondent and they had
compromised the matter. Therefore, they had prayed for dropping the proceedings. In
view of the allegations of forgery against the Respondent the D.C. of the S.B.C.
considered it necessary that the Legal Representatives should be present at the time of

49
 50 Selected Opinions of the Bar Council of India 50
passing the order. On the next date the son of the original Complainant was present and
his evidence was recorded and the documents were marked. The documents clearly
showed that the Respondent had forged the signatures of the Complainant. The D.C. of
S.B.C. got a confirmation from the handwriting expert also. Throughout the proceedings
the Respondent was not present before the D.C.

The D.C. of the S.B.C. after elaborately considering the evidence on record found the
Respondent guilty of professional misconduct and passed an order directing the
removal of his name from the State Roll.

The Respondent attacked the order of the D.C. of S.B.C. mainly on two technical
grounds:

1. The D.C. of the S.B.C. ought to have acted on the compromise memo and ought
to have dropped the proceedings.

2. He did not get proper opportunity to a present his case before the disciplinary
D.C. of the S.B.C.

In answer to the first contention that the D.C. of the S.B.C. ought to have to dropped the
proceedings against him as they were compromised, the D.C. of B.C.I. referred to section
35(1) of Advocates Act, 1961 which reads:

“Where on receipt of a complaint or otherwise a State Bar Council has reason to

believe that any advocate on its roll has been guilty of professional or other
misconduct, it shall refer the case for disposal to its disciplinary committee.”

and Rule 11(3) of Chapter I under Part VII of the Rules of B.C.I. which reads:

“No disciplinary enquiry shall be dropped solely by reason of its having been
withdrawn, settled or otherwise compromised, or that complainant does not want
to proceed with the enquiry.”

and held that the D.C. of the S.B.C. was not under any obligation to act upon the said
compromise memo.

The second contention that the Respondent could not represent before the D.C. of the
S.B.C. because he believed that the proceedings would be dropped in view of the
compromise memo was not accepted by the D.C. of B.C.I. as true and bona fide. The
D.C. of the S.B.C. had issued notices at every stage. It had issued him notice before
sending the documents to handwriting expert and also at this stage of recording the
evidence of handwriting expert. Therefore there was no reason for him to believe that the
proceedings against him would be dropped.
51 50 Selected Opinions of the Bar Council of India
Therefore the D.C. of B.C.I. found the Respondent guilty of forgery and misappropriation
and therefore of professional misconduct. The nature of the misconduct committed by
him was very grave. Such a person is unfit to be in the legal profession.

ORDER

Therefore D.C. of B.C.I. was pleased to uphold the sentence of the D.C. of the S.B.C.
removing the name of the Respondent from the Roll of the S.B.C.
 CASE 24
(Cheating the Client)
19(3&4) 1992 IBR 125

B.C.I. Tr. Case No. 127/1988

C vs. A

Shri K.J. Shethna (Chairman) and Shri B.N. Sharma and Shri Ajay Kumar (Members)

Judgement Dated 30th June 1990

FACTS OF THE CASE

Complainant’s Case: Respondent was running a Solicitor’s Firm. He was hand in glove
with an impostor who represented himself to the public as a financier. Complainant
approached that impostor for a loan of Rs. 7,00,000. The impostor took him to the
Respondent. Respondent represented that he was a reputed Advocate, and therefore,
worked only for genuine Financial Institutions. He told that the parties have to pay him
3.5% of the loan amount as fees and 2% towards stamp duty that would be required at
the time of disbursing the loan. Thus, he demanded, in all, 5.5% of the loan amount in
cash. He said that payment in cash will speed up the procedure and the disbursement
could be made early. Therefore, the Complainant paid Rs. 38,500 to the Respondent,
which is 5.5% of Rs 7,00,000.

Later on, the Respondent-Advocate told the Complainant that as the responsibilities
were too heavy, he would proceed with his legal work only if the Complainant paid him
Rs. 10,000 towards his fees. Complainant reluctantly paid the amount as demanded by
the Respondent.

But instead of disbursing loan to the Complainant, the financier initiated a false police
case against the Complainant himself. Complainant approached the Commissioner of
Police, and with his help, the financier was booked to law. But the police advised the
Complainant to proceed against the Respondent through the S.B.C. This is not the only
such case against the Respondent. The Respondent has committed many such frauds.

PROCEEDINGS

The following issues were framed by the D.C.:

1. Whether the Respondent-Advocate is engaged in a finance racket to induce and

deceive innocent loan seekers?

52
53 50 Selected Opinions of the Bar Council of India
2. Whether the Respondent-Advocate has defrauded the Complainant?

3. Whether the Respondent-Advocate has committed any misconduct?

Complainant examined 42 witnesses including himself, and got three documents

marked. The Respondent examined himself as his witness and got four documents
marked.

From the evidence there was no doubt in the minds of the members of the D.C. of B.C.I.
that the Respondent-Advocate in collusion with the impostor deceived innocent people,
and also that he had defrauded the Complainant among others. Several objections
raised by the Respondent on the technicalities were overruled by the D.C. of B.C.I.

Once the fact of fraud was proved, there was no doubt that the Respondent had
committed professional misconduct.

The Respondent did not show any regret or remorse. The misconduct committed by the
Respondent was of a very serious nature. There were no extenuating circumstances.

ORDER

Therefore, the D.C. of B.C.I. ordered for removal of the name of the Respondent from the
Roll of Advocates. He was also ordered to pay Rs. 2,000 to the Complainant towards the
cost of the proceedings.

The D.C. of B.C.I. relied upon the judgements of the Supreme Court reported in AIR
1963 SC 1313 and AIR 1985 SC 28 for giving the punishment in the cases of
misconduct.
 CASE 25
(Making False Assurances)
16(3&4) 1989 IBR 542

B.C.I. Tr. Case No. 27/1988

Y.V.R. vs M.K.N.

Shri B.N. Bajpayee (Chairman) and Shri S. Sethuraman and Shri N. Rangaraj (Members)

Judgement Dated 10th June, 1988

FACTS OF THE CASE

Complainant’s Case: Complainant, an electronics engineer has his business premises

and a complex, and next to him in the same complex is the legal consultancy run by the
Respondent. Complainant and the Respondent developed acquaintance with each other.
When the Complainant wanted to purchase an industrial plot, the Respondent showed
him many plots and promised to settle the one which was selected by the Complainant.
As a legal adviser the Respondent asked the Complainant to pay some amount to him as
advance for the purchase of the plot. Complainant paid the Respondent money as per
his demand. After a few days Respondent demanded more money and the same was
again paid by the Complainant through cheques. After this, the Respondent started
avoiding the Complainant. After continuous efforts Complainant could secure a
promissory note from the Respondent for half the amount and post dated cheques for
the remaining half amount. The cheques were dishonoured. Complainant insisted that
some security should be given by the Respondent in respect of the money due to him.
Respondent pledged his scooter with the Complainant, and later on lodged a police
complaint alleging that his scooter had been stolen. The scooter belonged to the
Respondent’s wife and the Complainant had to return it to her. Thus, the Respondent
has committed misconduct by his dishonest behaviour.

Complainant also averred that he has filed a criminal complaint against the Respondent
which was still pending.

Respondent’s case: Respondent denied all the facts except for the money received by
him from the Complainant’s through the cheques. He contended that he had given post
dated cheques to the Complainant in respect of the money and had requested him not to
the present it prior to a particular date. Still the Complainant presented the Cheques
prior to that date and as a result, the same came to be dishonoured. He had also given a
promissory note in respect of the same amount only as security for the money. The
promissory note and the post dated cheques were not given in respect of two different
sums of money, but they were in respect of the same sum of money.

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55 50 Selected Opinions of the Bar Council of India
The Respondent also contended that in any event, there is no client and Advocate
relation between them. As such, the complaint must be dismissed in limini. The relation
between them is only a relation of creditor and debtor and it is only a civil case.
Therefore, there is no misconduct.

PROCEEDINGS

From the pleadings of the parties, D.C. of the S.B.C. framed the following issues:

1. Whether the Respondent has committed any professional or other misconduct

as alleged in the complaint?

2. If so, what is the punishment?

At least in respect of half the sum alleged to have been taken by the Respondent from
the Complainant there was no dispute. There was also no dispute in respect of delivery
of post-dated cheques by the Respondent to the Complainant. Respondent contended
that he had given promissory note only as additional security for the money. This did not
appear creditworthy to the D.C. There was also no consistency between the pleadings of
the Respondent and the records in respect of the promissory note. Further, the post
dated cheques were dishonoured. D.C. of the B.C.I. observed that once the cheques were
issued it was the duty of the Respondent to see that funds were sufficient for meeting
the cheques. In the event of failure to do so he ought to have intimated the Complainant
in writing that due to some specific reason he could not make the funds available and
should have requested him to present the cheque on some other date.

Respondent also said in his evidence that the promissory note was got signed by him
through coercion. There was nothing to show on record that the Respondent has taken
any steps in that respect. He could have filed private complaint. But there was
absolutely nothing that was done by the Respondent in this regard. This showed that it
was a false statement.

Respondent had undertaken to pay the amount admitted by him. Even till the date of
hearing of the case, he had not done so.

In view of the all these circumstances the records revealed that the conduct of the
Respondent was not proper and would amount to misconduct as the same was done by
him in the capacity of a legal consultant.

In view of the facts and circumstances of the case the D.C. of the B.C.I. was led to think
that the Respondent had not only committed misconduct of having made the
Complainant believe that he would settle the transaction in pursuance of which he made
him to part with money which was not returned by him.
 50 Selected Opinions of the Bar Council of India 56
ORDER

In view of the pending litigation between the parties, B.C.I. thought it proper to take a
lenient view in respect of punishment and even though the misconduct was of very
serious nature, the Respondent was suspended from practice for a period of two years.
 CASE 26
(Cheating the Client)
16(3&4) 1989 IBR 563

B.C.I. Tr. Case No. 24/1986

C.L. vs N.T.S.

Shri B.P. Samaiyar (Chairman) and Shri K.P. Sinha and Shri V.C. Mishra (Members)

Judgement Dated 26th November, 1988

FACTS OF THE CASE

Complainant’s Case: Complainant wanted to initiate legal proceedings against her

neighbour and in that connection she contacted the Respondent. The Respondent
advised her to issue a notice to the said neighbour and accordingly the Complainant got
a notice issued to the neighbour through the Respondent. As the notice was ignored by
the neighbour, the Respondent advised the Complainant to institute a suit against the
neighbour. He also demanded some money towards his fees and expenses. The same
was paid by the Complainant’s husband to the Respondent. After some time the
Respondent said that he had filed the suit and a local commissioner had been appointed
by the Court. He demanded some more money to pay the commissioner’s fee. The
Complainant’s husband paid the same promptly. The Complainant’s husband used to be
away on business tours and the Respondent used to give information to the
Complainant about the progress of the case. Once when the Complainant’s husband was
in Delhi he contacted the Respondent and asked about the progress in the case.
Respondent stated that the suit had been decreed in favour of the Complainant, but the
neighbour had preferred an appeal against the said order. However he refused to
disclose the name of the Court in which the suit was filed and the name of the Court in
which the appeal was instituted. When the Complainant’s husband demanded to see the
file it was put off by the Respondent on one pretext or other. Even though the
Complainant’s husband contacted him on several occasions, the file was not shown to
him. Finally the Respondent told the name of the court in which the appeal was filed. On
inquiry this turned to be false. When Respondent was confronted with this, he told that
due to some lacunae in the previous suit, a fresh suit had to be filed, and demanded
more money which was also paid by the Complainant’s husband. Subsequently on
inquiry it was found that this time the Respondent had filed a suit as promised, but had
affixed court fee to the tune of only 10% of the money received by him from the
Complainant’s husband towards court fee.

57
 50 Selected Opinions of the Bar Council of India 58
Respondent’s Case: Respondent denied the allegations made against him and stated
that the Complainant had not engaged him for instituting any legal proceedings against
her neighbour, nor had he issued any notice to the neighbour of the Complainant on
behalf of the Complainant. He contended that since the construction of the premises, he
had acted for the Complainant as well as her neighbour and he had a procured
permission under sec. 21 of Delhi Rent Control Act. Therefore he could not have acted
for the Complainant in a suit against the neighbour. As he refused to act for the
Complainant on that ground, he was requested to become the mediator and settle their
dispute amicably. Thus he has never acted for the Complainant and except for filing a
petition under the Delhi Rent Control Act, and he had received a fee for that purpose. He
contended that he had issued receipts for those amounts.

By this time the Complainant had died and her husband filed a rejoinder to the defence
filed by the Respondent. He gave the number and the date of the D.D. through which he
had paid the money in the first instance. He also stated that the Respondent had got
issued a notice to the neighbour through one of his friend Advocates. When the
Complainant’s husband asked about this, the Respondent stated that, that Advocate is
his associate and therefore there is nothing wrong in issuing a notice in his name.
Complainant’s husband also denied having requested the Respondent to act as
mediator.

PROCEEDINGS

S.B.C. initiated inquiry against the Respondent through one of the Advocates. The
Advocate conducting inquiry gathered sufficient evidence against the Respondent and
categorically directed him to refund the amount to the Complainant as he did not file
any suit even after accepting the money. Complainant refused to accept the money
without the same being noted in the records of the case because several similar
complaints filed by several other persons were pending against the Respondent and he
wanted to create a record against the Respondent.

The Respondent said that the Complainant’s witness was a got up and false witness who
could not even tell the location of the Complainant’s house. B.C.I. did not attach much
importance to the evidence of this witness as he was only a messenger sent by the
original Complainant to the Respondent.

Another witness of the Complainant supported all the facts mentioned in the complaint
including the fact that the Respondent did not file suit initially in spite of being paid
money and also about the filing of the suit subsequently by receiving more money. He
also stated that he recovered 10 times more money than necessary towards court fee.

Respondent on the other hand said that he was not given any money for filing suit but it
was a fee for having obtained permission under sec. 21 of Delhi Rent Control Act. In his
pleadings he had told that he was paid from time to time fee for obtaining permission
59 50 Selected Opinions of the Bar Council of India
under sec. 21 of the Delhi Rent Control Act. In evidence he said that a Demand Draft
was given for payment of fee in one lump sum. There was no consistency between
pleadings and evidence. Further there was no corroborative evidence. In evidence he also
stated that the draft included fee for drafting a lease deed. This was absolutely a new
case. One of the documents produced by the Complainant was the receipt for a payment
for drafting the lease deed and it showed that the fee was paid in cash. Therefore, the
Respondent’s case was not creditworthy.

From the facts stated in the complaint and proved through oral and documentary
evidence, and from the circumstances gathered from the evidence of the Respondent, the
D.C. of the B.C.I. was satisfied that Respondent was guilty of professional misconduct.

ORDER

The Respondent was suspended from practice for a period of for years and costs of Rs.
2000 were awarded to the Complainant.
 CASE 27
(Cheating the Client, Making False Statement before the Court)
15(1&2) 1988 IBR 187

D.C. Appeal No. 23/1987

B.T. vs V.M.

Shri V.C. Mishra (Chairman) and Shri K.D. Sood and Shri D.K. Trivedi (Members)

Judgement Dated 2nd January, 1988

FACTS OF THE CASE

Complainant’s Case: Respondent is a close relative of the Complainant and he was the
counsel of Complainant’s parents during their lifetime. After the death of the
Complainant’s parents, Respondent continued to give legal advice to the Complainant.
Complainant reposed great confidence in the Respondent and used to sign any paper on
his asking. This confidence was misused by the Respondent. He planned to grab
Complainant’s property which she got from her parents. On the basis of a false
document he obtained a decree of specific performance of a contract in respect of her
property in his favour, and also obtained an order of ejectment against her. Respondent
also made false statements in the course of evidence that he had not represented
Complainant and her parents. Thus he has committed misconduct by misusing the trust
and confidence reposed in him by his client and by making false statements that he has
not represented Complainant or her parents in any court.

It was further alleged in the complaint that the Respondent had been held guilty of
similar misconduct on an earlier occasion also.

Respondent’s Case: Respondent denied the case of the Complainant. He stated that on
the basis of a sale agreement he filed a suit against the Complainant which was decreed
with costs in his favour. Complainant’s appeal has been dismissed by the High Court
and she has preferred an appeal before the Supreme Court. He also stated that his
subsequent petition for ejectment and suit for recovery of arrears of rent were also
decided in his favour. He had not committed any misconduct.

PROCEEDINGS

The following issues were framed by the D.C. of the Bar Council:

1. Whether the Respondent has committed any professional or other misconduct?

2. What relief?

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61 50 Selected Opinions of the Bar Council of India
All the cases were decided in favour of the Respondent by the trial courts and their
orders were upheld by the High Court. Appeals in respect of all of them were pending
before the Hon’ble Supreme Court. Complainant had chosen to file the complaint at this
juncture. As the matters were subjudiced, the D.C. of the B.C.I. did not choose to got
into the merits of the cases and to hold whether or not the documents were genuine.
Instead, it concentrated on the second allegation as to the false statements by the
Respondent. Three documents were produced the relevant portions of which read as
under:

Ex. C9: “I do not remember exactly if I was the counsel for the mother of the
defendant in some ejectment petitions in 1969 as the Shri KST Advocate
conducted her affairs. It may be possible that Shri KST Advocate used to come
from Chandigarh and maybe he had obtained my signatures on the power of
attorney so that in his absence the case may not be dismissed for default. I do not
remember if I had ever appeared in any such application in the Court.”

Ex. C10: “I never have acted as her Council in any the worse case. I also do not
remember having acted as Council for her mother in any ejectment proceedings.”

Ex. C11: “Ever since the beginning of 1971 I never conducted a case on behalf of
the defendant, nor has she had consulted me in any legal matter.”

Perusal of the records showed that the first case lasted for two months and only the
power of attorney of the Respondent was filed in it. The second case lasted for seven
months before it was compromised and the third case for about two months. In these
cases the Respondent was not Advocate. Respondent being the 75 years of the age could
not recall the said facts when his statements were recorded. It could not be ruled out
that his memory was failing. The standard of proof required in the cases of professional
misconduct is of a very strict nature, the proceedings being quasi criminal in nature.
Therefore, the B.C.I. was of the opinion that professional or other misconduct had not
been proved in the case against the Respondent.

The D.C. of the B.C.I. further observed that the fact that the Respondent was guilty of
misconduct on earlier occasions cannot be considered too hold him guilty in this case.

ORDER

In the result, the appeal was allowed and the judgement and order and sentence passed
by the Punjab and Haryana S.B.C. against the Respondent was set aside.
 CASE 28

(Making False Assurances)

14(4) 1987 IBR 756

D.C. Appeal No. 34/1985

R vs. Y and S

Judgement Dated 26th September, 1987

FACTS OF THE CASE

Complainant’s Case: The Complainants jointly started an industry-cum-laboratory

under the name and style of to “The Universal Scientific and Industrial Centre”, under
the financial assistance from the Canara Bank. The Bank had originally sanctioned a
loan of Rs. 20 lakhs, after releasing a part of the loan it stopped the payment and
initiated legal proceedings for the recovery of the loan already released. The Respondent-
Advocate was engaged by the Complainant to represent him in the said case. The
Respondent-Advocate assured that he will be able to get a compensation of Rs. 50 lakhs
from the Bank at the rate of Rs. 60,000 per month for the abrupt stoppage of payment.
For this he collected excess money apart from the agreed fee from the Complainants. But
he did not take any steps for getting the compensation. On the contrary he even failed to
cross-examine the Bank. Thus he had played fraud and therefore was guilty of
misconduct.

Respondent’s Case: The Respondent admitted that he was engaged by the

Complainants to represent them in their case against the Bank. He also admitted that
he had received free from the Complainants, but denied that he had collected excessive
money from them as claimed in the complaint. The Respondent contended that he had
not assured to get them any damages. Considering the various aspects of the suit, the
Complainants were not ready to depose before the court, and therefore he had advised
them to compromise the case. This was misunderstood by the Complainants.

PROCEEDINGS

The Complainants did not examine themselves before the D.C. of the S.B.C. Their Power
of Attorney-holder was examined as their only witness. He produced several documents
and got them marked. Respondent was the only witness on his side.

From the records the D.C. of the S.B.C. was satisfied that the Complainants had proved
their case against the Respondent that he had collected excess money by making false
promise. Therefore the D.C. of the S.B.C. was of the opinion that he was guilty of

62
63 50 Selected Opinions of the Bar Council of India
misconduct. However as the Respondent was aged about 80 years and had put in about
50 years of practice he was only reprimanded.

The Complainants had produced several counterfoils of cheques to prove their case.
They also produced the pass book. The Respondent gave a strange and curious
explanation to these. He said that the cheques were sent him through a person who
used take the signature of the Respondent on the cheques and he used to take pay cash
to the Respondent under the pretext that it was difficult for him because of his age to go
to the bank to encash the cheques. He used to take back the cheques and probably he
used to tamper with them. This argument of the Respondent was dismissed by the D.C.
of the B.C.I. with contempt.

At this stage the Respondent offered to refund the money collected by him in excess of
his fees. This itself showed that he had collected excess money as alleged by the
Complainants.

ORDER

Therefore the appeal was dismissed and the order of the lower DC was upheld on
conviction and punishment.
 CASE 29
(Extortion of Client)
16(2) 1989 IBR 245

B.C.I. Tr. Case No. 29/1981

Mrs. H.S. vs. B.D.

Shri B.P. Samaiyar (Chairman) and Shri K.P. Sinha and Shri V.C. Mishra (Members)

Judgement Dated 26th February 1988

FACTS OF THE CASE

Complainant’s Case: Complainant is the Managing Director of M/s Hotel Niru Private
Limited. The Respondent was working for a solicitor’s firm. Complainant’s case
entrusted to the firm was conducted by the Respondent. It was a case under sec. 636(2)
of the Companies Act. Later on Complainant’s husband and another director of Hotel
Niru Private Limited entrusted another case to the same Solicitors Firm. This case was
in respect of lease and sub-lease of an immovable property. Fees and expenses of both
these cases were paid to the solicitors for as per their demand.

Later on, the Respondent separated from the said Solicitors Firm and started to
independent practice. Subsequently, the Solicitors Firm failed to get the lease and sub-
lease deed registered, and the Respondent contacted the Complainant’s husband and
offered to get the work done if it is entrusted to him. Complainant’s husband agreed and
paid the fees demanded by the Respondent. Respondent demanded more money after
some time and the same was paid to him by the Complainant’s husband. The
Respondent made a third demand for money which was refused by the directors of Hotel
Niru Private Limited. On this the Respondent approached the High Court and the
initiated a winding-up proceedings against Hotel Niru Private Limited in the capacity of a
creditor. The directors came to know about these proceedings only when the Official
liquidator appointed by the Court visited the Hotel premises with the winding up order.
Surprised by this, especially as no money was due to Respondent from the Company,
the Complainant approached the Respondent. The Respondent told her that he would
get the proceedings dropped if the Complainant paid him Rs. 10,000 in cash. Under the
pressure of coercion and undue influence the Complainant paid Rs. 10,000 to the
Respondent as per his demand. But the Respondent issued a receipt for only Rs. 7,600,
and told that that was the amount claimed by him in the winding-up proceedings.
Complainant’s request for a separate receipt for Rs. 2,400 was not entertained by the
Respondent.

64
65 50 Selected Opinions of the Bar Council of India
Complainant got an application for vacating the winding up order through another
Advocate. On the same day Respondent met her in the High Court lounge and told her
that he had come to know that she had filed an application for vacating the winding-up
proceedings. He also threatened that he would oppose the Complainant’s application
and get it dismissed. He offered to sign “no objection” on the application, provided the
Complainant paid him Rs. 5,000. The Complainant gave the amount through cheque,
and to cover up his misconduct the Respondent issued a receipt stating that the amount
was towards his profession and charges. Thus, the Complainant was cheated and
blackmailed by the Respondent and thereby the Respondent has committed misconduct.

Respondent’s Case: The Respondent denied all the allegations made in the complaint as
false, baseless and scandalous, and intended to malign him and harm him
professionally simply because he had insisted upon and realised his professional fees
from the Complainant.

The Respondent was the Director in the Department of Company Affairs. The
Complainant was an old and close friend of his niece. She was introduced to him by his
said niece for the purpose of attesting passport applications of the Complainant and her
husband, which he had done.

After his retirement Complainant joined the profession and started his practice as
lawyer. Subsequently the Complainant and her husband approached him and requested
him to give advice to their Company, Hotel Niru Private Limited, on regular basis for a
period of 1 year. They requested him to pull the Company out of its past troubles, as well
as keep it out of troubles in future, by his expertise and experience in the field of
company affairs. It was also agreed that they would pay him a fee of Rs. 100 per sitting.
For a long period of time he was not paid any amount and therefore he prepared a bill
for Rs. 3,500 and delivered it to the Complainant through his junior. But the payment
was not made even this time.

In the meantime, the Registrar of Companies, New Delhi launched prosecution against
the company and also against the Complainant and her husband for non-compliance of
the requirements of Companies Act. This case was filed before the Metropolitan
Magistrate. This case was also entrusted by the Complainant to the Respondent and he
pursued it. For this he charged a fee of Rs. 1,100 which was never paid.

Complainant and her husband entrusted to the Respondent the work preparing two
lease deeds and getting them registered. One of them required an application under sec.
27(2) of the Urban Land Ceiling Act. The application was rejected by the competent
authority. First Appeal preferred by the Respondent against the order was also rejected
and the Respondent was successful in the Second Appeal. Thereafter the Respondent got
the two deeds registered and he submitted a Bill for Rs. 7,600. In this way he had
rendered professional service to the Complainant’s company which was worth Rs.
12,600. But the amount was never paid in spite of many reminders. As the money suit
 50 Selected Opinions of the Bar Council of India 66
for recovery of the amount would be dilatory, in the Respondent initiated winding-up
proceedings. As the notices issued to the company came unserved, citation was issued
in two leading newspapers and after waiting for the representation of the company, the
High Court issued ex parte order for winding up of the company.

Only then the Complainant approached Respondent with his niece, who is her close
friend, and not alone as averred in the complaint. She paid him Rs. 7,600 and promised
to pay the balance of Rs. 5,000 on the next day. Accordingly, she paid the balance of Rs.
5,000 through a cheque in the Court lounge. Therefore, this is a false case and the
Respondent has not committed any misconduct as averred in the complaint.

PROCEEDINGS

In her evidence Complainant supported her case and denied to have gone to meet the
Respondent when he was a Central Government officer for attestation of any passport
applications. She also denied the entire case of the Respondent.

The serious allegations made by the Complainant against the Respondent was to the
effect that she was forced to pay him a sum of Rs. 10,000 in cash under pressure,
coercion and undue influence by the Respondent, and that he issued a receipt for only
the Rs. 7,600. However there was no substantial evidence to this effect. It was only her
self-serving statement to this effect was on record. On the other hand, the Respondent
has not only categorically denied the case of the Complainant but also had led the
evidence of his niece who was an eyewitness. The D.C. of B.C.I. found it difficult to
believe that being a well educated lady and Managing Director of a company she was
forced to pay amount in excess of the receipt given to her. She could have a deposited
the money in the High Court, had the Respondent demanded more money than she was
bound to pay him. The documents filed by the Complainant did not show any case in
support of the Complainant. The Complainant had produced a receipt and a no-
objection certificate for vacating the winding-up order. Both documents were signed by
the Respondent on the same date as could be seen from the date on them. Therefore,
there was no occasion for the Respondent to force her to part with Rs. 5,000 next day for
issuing no objection certificate. Further, if the cheque was issued under coercion, the
Complainant could have written to the bank to stop payment. The cheque was delivered
to the Respondent after the bank hours and on the same day during the post lunch
session of the High Court the winding-up proceedings in the High Court were dropped.
The cheque was encashed only on the next day. She had ample of time to stop the
payment.

Therefore the D.C. of the B.C.I. was satisfied that not only has the Complainant dismally
failed in proving her case, but the true state of affairs were truthfully brought out in
detail by the Respondent in his defence.
67 50 Selected Opinions of the Bar Council of India
ORDER

In the circumstances the complaint was dismissed. And as it was a case of a dishonest
and a malicious prosecution, the Respondent was entitled to a heavy cost which was
ordered by the B.C.I.

In this case the Respondent filed an application under sec. 340 Cr.P.C. r/w sec. 193
I.P.C. and sec. 42(2) of the Advocates Act. Under sec. 42(2), Advocates Act, the
proceedings before the D.C. of the Bar Councils are deemed to be judicial proceedings
within the meaning of sec. 193 and 223 of I.P.C. Therefore, if the D.C. finds it a case of
giving false evidence and fabricating false evidence for the purpose of being used in the
proceedings before it, the D.C. can direct the filing of criminal complaint. In this case,
for the reasons recorded therein, the D.C. of B.C.I. found it not a fit case for exercise of
its jurisdiction under sec. 42(2) of Advocates Act.
 CASE 30
(Disregard of Client’s Interest)
15(3&4) 1988 IBR 354

D.C. Appeal No. 33/1986

G. vs. O.

Shri D.V. Patil (Chairman) and Shri N.K. Jain and Shri J.K. Singh (Members)

Judgement Dated 9th July 1988

FACTS OF THE CASE

Complainant’s Case: Complainant had engaged the Respondent for legal services and
had paid him some amount towards fees and expenses. He had also signed vakalatnama
in his favour. Respondent advised the Complainant that he would be informed about the
progress of the proceedings. But in spite of several reminders Respondent did not inform
the Complainant about the progress in the matter.

PROCEEDINGS

Respondent did not appear before the D.C. of the S.B.C..

The D.C. of the S.B.C. came to the conclusion that there was a wilful and callous
disregard of the interest of the client by the Respondent-Advocate and it was a conduct
not befitting an Advocate. Therefore it passed order suspending the Respondent from
practice for a period of 5 years.

Respondent appeared before the D.C. of the B.C.I. for the first time and pleaded that
though he had committed professional misconduct, he had refunded the entire amount
to the Complainant, and therefore the lapse should be condoned. The Complainant also
filed a memo to the effect that he had received the entire amount from the Respondent.

The D.C. of the B.C.I. came to the conclusion that the records clearly showed that there
was no intentional lapse on the part of the Respondent-Advocate. But at the same time
the B.C.I. observed that the Respondent-Advocate had not cared to act in a manner
befitting an Advocate in the interest of his client. In view of this he had committed
professional misconduct. However looking to the fact that the Respondent did not
contest the matter and made a clean breast of the entire matter before the D.C.s of the
Bar Councils and also because he had made the refund of the money to the client’s

68
69 50 Selected Opinions of the Bar Council of India
satisfaction the B.C.I. took a lenient a view of the matter and reduced the punishment
from suspension to reprimand.

ORDER

In the result the appeal was partly allowed. The finding by misconduct was upheld and
the punishment was reduced from suspension to reprimand.
 CASE 31
(Withdrawal Form Case without Sufficient Reason and Sufficient Notice)
15(1&2) 1988 IBR 197

B.C.I. Tr. Case No. 16/1986

C.D. vs. S.S.

Shri C.L. Sachdeva (Chairman) and Shri V.C. Mishra and Shri O.P. Sharma (Members)

Judgement Dated 24th January, 1988

FACTS OF THE CASE

Complainant’s Case: The Respondent-Advocate represented the Complainant in an

appeal and the Complainant paid Rs. 3,500 in three instalments to the Respondent
towards fees and expenses. After filing the appeal and getting it admitted the
Respondent did not give any information to the Complainant in respect of its progress
even when the Complainant met her from time to time. She also did not return the
papers when she was asked to. The Complainant sent two notices through registered
post but the same were returned to the Complainant unclaimed.

Respondent’s Case: Respondent admitted that Complainant was referred to her by

another Advocate, the reference was without any instructions and papers either from the
Complainant or from the Advocate. Therefore she requested the Complainant to bring
papers without which she could not give her advice. But the Complainant did not comply
with the Respondent’s request. Finally Respondent wrote a letter dated 2.7.1975 calling
up on the Complainant to see her along with all the papers failings which she would be
forced to retire, and also stated that if further instructions and papers are not given, her
duties in the case ended without any outstanding claims whatsoever. Respondent
further denied that she had taken the fees as alleged in the complaint and that she was
attending the Complainant in the appeal.

PROCEEDINGS

The Complainant produced a copy of the notice dated 19.9.1977 given to the Municipal
Corporation by the Respondent on behalf of the Complainant. In that it was clearly
mentioned that the Respondent had filed an appeal on behalf of the Complainant and
the same had been admitted, and stay was granted. This showed that the Respondent
had acted as an Advocate for the Complainant in the appeal. As such she was not
entitled to withdraw from the engagements as an Advocate once accepted without

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71 50 Selected Opinions of the Bar Council of India
sufficient cause and unless the reasonable and sufficient notice was given to the
Complainant Rule 12 Section II in Part VII runs as under:

“An advocate shall not ordinarily withdraw from engagements once accepted, without
sufficient cause and unless reasonable and sufficient notice is given to the client. Upon
his withdrawal from a case, he shall refund such part of the fee as has not been earned.”

The letter produced by the Respondent as the notice by the Complainant was dated
2.7.1975 whereas the notice given by her on behalf of the Complainant to the Municipal
Corporation was dated 19.9.1977. Hence it was not taken into account Further, the
Respondent falsely denied that she was not representing the Complainant in the appeal.
Therefore, it was held that the Respondent had withdrawn from the case without giving
sufficient reason and notice.

ORDER

The D.C. of the B.C.I. held that the Respondent had committed professional misconduct
within the provisions of section 35 of the Advocates Act. But as the matter was a long
pending one, D.C. of the B.C.I. gave the punishment of only reprimand under sec. 35(3)
(b).
 CASE 32
(Representing the Other Side)
19(3&4) 1992 IBR 147

B.C.I. Tr. Case No. 39/1987

G vs. S

Shri C.L. Sachdeva (Chairman) and Shri Bhagawati Prasad and Smt. Kamala Jain
(Members)

Judgement Dated 17th September 1991

FACTS OF THE CASE

Complainant’s Case: Complainant was a partner in a firm under the name and style of
M/s. Asian Live Pharma, and the Respondents were the Advocates and legal advisors to
this firm.

A meeting of partners of the firm, including the Complainant, with the Respondents took
place in the office of the Respondents. At this meeting, the Complainant disclosed all the
facts of his case to the Respondents. Subsequently, there was a suit for dissolution of
partnership among the members of the said firm. In that suit, the Respondents
represented the other partners against the Complainant. As the Complainant had
disclosed his case to the Respondents, they have committed misconduct by appearing
against him.

Respondents’ Case: Respondents denied the case of the Complainant. They denied that
the Complainant had supplied or disclosed any information to them, which would make
them liable for passing on secrets.

PROCEEDINGS

The Complainant stated in his deposition that the meeting took place for about 15
minutes. In that meeting all the partners of his firm participated. During the meeting,
the Complainant informed the Respondents, in confidence, about manoeuvring of
accounts and fraud committed by him in the partnership firm.

As the meeting took place only for about 15 minutes, during such a short meeting all the
facts averred by the Complainant could not have happened. Therefore, the D.C. of the
B.C.I. held that the Respondents had not committed the alleged misconduct. But it felt

72
73 50 Selected Opinions of the Bar Council of India
that in the propriety of things, the Respondents should not continue with the case. The
Respondents agreed to this.

ORDER

Therefore, in the light of above reasons, the D.C. of the B.C.I. was pleased to dismiss the
complaint.
 CASE 33
(Representing the Other Side)
19(3&4) 1992 IBR 149

B.C.I. Tr. Case No. 39/1989

F vs. K

Shri K.J. Shethna (Chairman) and Shri B.N. Sharma and Shri H.C. Sharma (Members)

Judgement Dated 28th March 1992

FACTS OF THE CASE

Complainant’s Case: As per the averments of the complaint, the Complainant had filed
a suit for partition against 14 persons in the Court of Civil Judge (Junior Division),
Malegaon. He was represented by the Respondent-Advocate. The suit was dismissed by
the Civil Judge (Junior Division), Malegaon, and the Complainant preferred an appeal
against the said order and the appeal was allowed by the appellate Court. The appellate
Court ordered partition and remanded the suit to the trial Court for final decree
proceedings.

Defendant No. 5 in the suit for partition, Shri Md. Ali Ayub Asghar filed application for
final decree. In these proceedings he was represented by the Respondent-Advocate.
Hence, the Complainant alleges that the Respondent has committed professional
misconduct by changing sides in the case.

Respondent’s Case: Respondent admitted the facts pleaded by the Complainant. But
according to the Respondent, Defendant No. 5 (Md. Ali Ayub Asghar) was not at lis with
the Complainant. In fact, both of them together approached the Respondent for filing of
the suit. In fact they were to file the suit together as co-plaintiffs. But, at the time of
filing of the suit Md. Ali Ayub Asghar was not available. Therefore, he was impleaded as
proforma Defendant. In fact, Defendants No. 1 to 4 are the real Defendants. Hence, he
has not, in fact, changed sides, as in that suit for partition, the Complainant and
Defendant No. 5 therein had common interest. Further, when the Respondent filed final
decree application on behalf of Defendant No. 5 Md. Ali Ayub Asghar, Complainant
raised objections. Immediately thereupon the Respondent retired from the case. This
shows his bona fides.

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75 50 Selected Opinions of the Bar Council of India
PROCEEDINGS

On the basis of the pleadings of the parties, the D.C. of the B.C.I. framed the following
issues:

1. Whether Respondent has committed any professional misconduct as alleged in

the complaint?

2. To what relief, if any, is the Complainant entitled?

The parties examined themselves as their respective witnesses. The Complainant

produced 3 documents while the Respondent produced only one document. They did not
examine any independent witnesses. They supported their pleadings and got the
documents marked during the course of their evidence.

Rule 33 of the B.C.I. Rules which lays down the Restrictions on Senior Advocates and
Standards of Professional Conduct and Etiquette reads as under:

“An Advocate who has, at any time, advised in connection with the institution of a
suit, appeal or other matter or has drawn pleadings or acted for a party, shall not
act, appear or plead for the opposite party.”

In the present case it was admitted that Respondent had filed suit on behalf of the
Complainant. The certified copy of the plaint was on record. Para 4 of the plaint
specifically stated that Defendants No. 1 to 4 had acted against the interest of the
plaintiff and Defendants No. 5 to 14. Para 5 of the plaint discloses that the cause of
action to file the suit arose when Defendants No. 1 to 4 denied the claim of the
Complainant.

Therefore, it was clear that the interests of Complainant and Md. Ali Ayub Asghar were
common and not distinct in that suit. Therefore, there was nothing to show that the
Respondent had violated the provisions of Rule 33.

ORDER

In the result, the complaint was dismissed.

In support of its decision, the D.C. has relied upon two decisions of the Madras High
Court reported in AIR 1938 Mad 276 and AIR 1916 Mad 344 respectively.
 CASE 34
(Changing of Side)
16(1) 1989 IBR 110

B.C.I. Tr. Case No. 52/1988

S.G. vs. C.P.

Shri B.P. Samaiyar (Chairman) and Shri K.P. Sinha and Shri V.C. Mishra (Members)

Judgement Dated 18th March 1989

FACTS OF THE CASE

Complainant’s Case: The Complainant has a dispute pending before the Registrar of
Firms, Societies and Chit Fund, Kshetra Kajuri, Varanasi. The said case is pending since
about 5 years prior to the date of this complaint. In that case, the Complainant is
represented by the Respondent-Advocate. The Complainant came to know that the
Assistant Registrar had gone in to collusion with the other side, and that he could not
expect to get any justice from him. Therefore, he filed a suit in the Court of Munsiff, City
Varanasi. In that case, the Respondent represented the other side. The Respondent had
represented the Complainant before the Assistant Registrar, and as such, he had been
knowing all the facts of the Complainant’s case. Therefore by joining the other side in
the case before the Munsiff, the Respondent had committed professional misconduct.

Respondent’s Case: Several notices which were issued to the Respondent were returned
unserved and finally one notice was served upon him. However, he did not care to
appear before the D.C. and to present his side of the case. Therefore, the Committee
placed him ex parte.

PROCEEDINGS

The only question before the Bar Council was:

Whether the Complainant has succeeded in establishing that in fact the

Respondent had worked for him before the Assistant Registrar?

This being an ex parte case, the Complainant did not intend to adduce further evidence
and rested his case on his complaint and the records on the file called from the
Assistant Registrar. On Annexure 1, Photostat copy of the petition filed before the
Assistant Registrar, there was signature purporting to be that of the Respondent.
Annexure 2 consisted of some documents which were alleged to be written by the

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77 50 Selected Opinions of the Bar Council of India
Respondent in his own hand. According to the Complainant this clearly showed that the
Respondent was duly acquainted with the facts of the Complainant’s case. As such, the
Complainant argued that the Respondent has committed professional misconduct by
joining the other side in the civil suit.

According the Complainant Annexures 1 and 2 were the true copies of their originals,
and Annexure 1 contained the signature alleged to be that of the Respondent. But the
original called from the Assistant Registrar did not bear any such signature. Annexure 2
was alleged to be in the handwriting of the Respondent. But a sample of Respondent’s
admitted handwriting was not made available for comparison. No vakalatnama was
produced. No evidence was lead to prove the signature on Annexure 1. Therefore it was
held that Annexure 1 was not a true copy of the original. It was also held that Annexure
2 was not proven to be in the handwriting of the Respondent.

ORDER

In the result, it was held that the Complainant had failed to prove his case. Hence the
case was dismissed.
 CASE 35
(Appearing Against Person Giving Instructions to the Advocate)
15(1&2) 1988 IBR 193

D.C. Appeal No. 6/1981

R vs C

Shri C.L. Sachdeva (Chairman) and Shri V.C. Mishra and Shri O.P. Sharma (Members)

Judgement Dated 31st December, 1987

FACTS OF THE CASE

Complainant’s Case: Complainant is the Power of Attorney-holder of a woman whose

cases were conducted by the Respondent. The Complainant in his capacity of Power of
Attorney-holder gave instructions and supplied evidence to the Respondent. Several
cases in which the said a woman was a party were pending with the Respondent. During
the pendency of these litigations the said woman cancelled her power of attorney which
she had executed in favour of the Complainant. Subsequently she executed a will in
favour of the Complainant. The Complainant’s sister’s daughter who was staying with
the said a woman also claimed that the said woman had executed a will in her favour.
Thus there was a dispute among the Complainant and he is niece, and the Respondent
represented the niece in some litigation. He had taken all details about the properties
involved in these litigations from the Complainant when he was acting as the Power of
Attorney-holder of the said woman. Hence the Respondent has committed professional
misconduct by appearing against him.

PROCEEDINGS

It was admitted by the Complainant that he had not seen the Respondent after the
cancellation of the power of attorney. So it was also not disputed that the Respondent
had never represented the Complainant in his personal capacity. Complainant never
sought the advice of the Respondent in respect of the will or any property of the
deceased.

Therefore there is no relationship of a client and Advocate between the Complainant and
the Respondent. Therefore the DC of Maharashtra S.B.C. held that there was no
misconduct of the Respondent if he has represented the opposite party in a suit against
the Complainant.

ORDER

The decision of the Maharashtra Bar Council was upheld by the B.C.I.

78
 CASE 36
(Appearing for Both Sides)
14(2) 1987 IBR 314

D.C. Appeal No. 64/1974

P vs. V

Shri B.P. Samaiyar (Chairman) and Shri K.P. Sinha and Shri V.C. Mishra (Members)

Judgement Dated 27th December, 1986

FACTS OF THE CASE

Complainant’s Case: Complainant was the Defendant in a suit. He had engaged the
Respondent-Advocate to represent him in that suit by paying him Rs. 250 towards his
professional fees. Later on, the Complainant again met the Respondent and gave him all
the documents of the case with instructions to conduct the case. He also made as
further payment of Rs. 500 towards fees and expenses. The Respondent filed his
vakalatnama and appeared for the Complainant in the said suit. However, on the next
date of hearing, he moved an application for the withdrawal of the vakalatnama on the
ground that he could not represent the Complainant in that suit inasmuch as, he was
already representing the Plaintiff therein. Thus, the Respondent had accepted briefs
from both the sides and had known their respective cases. Therefore, the complainant
demanded that the Respondent should retire from the case entirely. He should not
represent the Plaintiff in the suit after knowing the case of the opposite side. But, the
Respondent did not agree to this. Therefore, he is guilty of professional misconduct.

Respondent’s Case: Respondent denied the case of the Complainant in toto. In fact, the
said suit was instituted by the Respondent-Advocate, who was the counsel for the
plaintiff. He had conducted the case efficiently and the Defendant in that suit, i.e. the
present Complainant had no chance of winning the case at all. Therefore, he approached
the Respondent’s son who was a junior advocate of 3 years’ standing and told him that
he wished that the Respondent should be his advocate in the said suit. He gave him the
vakalatnama and requested him to file it in the court. When the Respondent’s son asked
him whether the Respondent was in any way involved in the case, the Complainant
answered in the negative. Therefore, innocently the Respondent’s son filed the
vakalatnama. As soon as the Respondent got the knowledge of this fact, he applied for
withdrawal of the same. Then the Complainant objected to his representing the Plaintiff
also. Thus, the Complainant had played fraud to prevent the Respondent from
representing the Plaintiff in the suit. The Respondent emphatically denied that he had
received any fees, documents or instructions from the Complainant.

79
 50 Selected Opinions of the Bar Council of India 80
PROCEEDINGS

During the proceedings before the D.C. of the S.B.C. Complainant submitted that if the
Respondent withdraws from the case, he would withdraw his complaint. Respondent
maintained that though he was not really keen to represent the Plaintiff in the suit, in
order to defeat the ill motive of the Complainant, he would represent the Plaintiff.
Otherwise, it would amount to “putting a premium on the dishonest and fraudulent
action of the Complainant.”

After going through the evidence carefully, the D.C. of the S.B.C. had no doubt that the
Complainant had known fully well that the Respondent was the Advocate for the
Plaintiff. The D.C. also found the evidence on the Complainant’s side to the effect that he
had paid fee to the Respondent unworthy of any credence. On the other hand, the D.C.
found that the evidence of the Respondent that the Complainant had got the
vakalatnama filed by the Respondent’s son through fraud, worthy of credit.

ORDER

Therefore, the D.C. of the S.B.C. was pleased to dismiss the complaint. The order of the
D.C. of S.B.C. was upheld by the D.C. of the B.C.I., and the appeal filed by the
Complainant was dismissed with costs of Rs. 500.
 CASE 37
(Misguiding Court by Filing False Case)
25(1) 1998 IBR139

B.C.I. Tr. Case No. 40/1991

District Judge, Nainital vs. R

Shri C.L. Sachdeva (Chairman) and Shri O.P. Sharma and Shri T.P. Singh (Members)
Judgement Dated 5th October, 1996

FACTS OF THE CASE

Proceedings under sec. 35 of the Advocates Act 1961 were initiated against the
Respondent-Advocate in D.C. Case No. 59/89 before the D.C. of Uttar Pradesh S.B.C. It
appears from the records that on account of dilatory tactics adopted by the Respondent-
Advocate, D.C. of S.B.C. could not dispose of the matter within 1 year. Therefore, the
matter stood transferred to the D.C. of B.C.I. under sec. 36 B of the Advocates Act, 1961.

Several notices were sent to the Respondent, but the Respondent did not appear. Hence
the case was decided ex parte against him.

A copy of the judgement dated 2.12.1987 passed by the District Judge, Nainital in a
Review Petition in a Motor Accident Case was on record. From this judgement following
facts appeared.

One Shri Mohsin Ali Khan s/o Mohd. Ali Khan of Bareilly filed a MAC No. 14/82 alleging
that he was literally crippled and permanently disabled due to the injuries sustained by
him in an accident caused by a mini bus bearing registration No. USE 7725, which was
insured by New India Assurance Co. Later on, an application was filed by the L.R.s of the
Petitioner Mohsin Ali Khan alleging that Mohsin Ali Khan had died on 28.4.83 due to the
injuries sustained by him in the accident, and they prayed that they be included as his
Legal Representatives.

Another MAC No. 21/84 was also instituted by the said L.R.s of Mohsin Ali Khan
alleging that they were the dependants of Shri Mohsin Ali Khan who died in a road
accident on 11.9.1983 caused by a mini bus bearing registration No. USM 6949 which
was insured by M/s. Oriental Fire and General Insurance Co. Ltd.

If Mohsin Ali Khan had died on 28.4.83, MAC No. 21/84 is a false case. This case was
filed by the Respondent-Advocate who is no other than the brother of Mohsin Ali Khan.
It is clear that in collusion with the family members of Mohsin Ali Khan the Respondent-
Advocate had filed this false case to obtain an award from the Tribunal. Being Mohsin

81
 50 Selected Opinions of the Bar Council of India 82
Ali Khan’s brother, he very well knew that Mohsin Ali Khan had died on 28.4.83 and not
on 11.9.1983 as alleged in the petition. This fraud came to the light when M/s. Oriental
Fire & General Insurance Co. Ltd. applied for quashing of the award of MACT in MAC
No. 21/84, and got the same quashed. District Judge, Nainital referred the case to U.P.
S.B.C. for initiating misconduct proceedings against the Respondent.

PROCEEDINGS

The D.C. of B.C.I. framed the following issues:

1. Whether the Respondent has stated any falsehood before the MACT, Nainital for
illegal gains?

2. Whether the Respondent has committed any fraud in misrepresenting the facts
deliberately before the tribunal?

3. Whether the Respondent has committed any professional misconduct?

From the above facts, the D.C. of B.C.I. made the following observations:

“In recent past it has been experienced that in the cases of Motor Accident Claim, the
role of the lawyers in some of the cases has not been up to the mark. Cases of
misappropriation of money by the lawyers awarded by the way of compensation were
frequently being brought to the notice of B.C.I. as a result of which necessary
amendments were made in the practice of preparation of the cheques in the name of the
claimant’s counsel to the claimants themselves, which has now been adopted. Facts of
the above noted case are peculiar in nature and the same cannot be dealt softly and
casually. The charged Advocate who has taken the matter very lightly, though serious in
nature and has not led any effective evidence in support of his defence, a word of
apology cannot exonerate him from the charge levelled against him.”

ORDER

Under the circumstances, committee was of the view that the charged Advocate should
be debarred for a period of two year from the date of notification of the order.
 CASE 38
(Identifying Wrong Person before Court)
16(3&4) 1989 IBR 550

B.C.I. Tr. Case No. 6/1984

J.R. vs J.K.

Shri V.C. Mishra (Chairman) and Shri B.N. Sharma and Shri Viresh Mishra (Members)

Judgement Dated 21st May, 1989

FACTS OF THE CASE

Complainant’s Case: Land of the Complainant was acquired by the state along with
some other lands. The state deposited compensation amount in the Court. But due to
mistake, the list contained the name of some other person (A) in place of the name of the
Complainant. A third person (B) withdrew the amount by representing himself to be A.
The Respondent identified B as A, and thereby the Respondent had committed
misconduct.

Respondent’s Case: The list consisted of names of as many as 136 persons and these
persons had to furnish security of sarpanch for the money and get the amount released
from the Court. The Respondent identified the sarpanch and the sarpanch in turn
identified the parties. It was further alleged that the person who withdrew the money
belonging to the Complainant subsequently realised the mistake and immediately
thereupon he redeposited the amount in the court.

PROCEEDINGS

The following issue was framed by the Bar Council:

Is the Respondent guilty of misconduct by identifying wrong person before the court?

The evidence of an independent witness adduced by the Respondent clearly showed that
the practice of the court was that the Advocate identifies the sarpanch and numberdars,
and the sarpanch and numberdars in turn identify the parties. Another witness on the
side of the Respondent also deposed to the same effect. There was no reason to
disbelieve these testimonies. Also the receipt showed that the person in question was
identified by the sarpanch and an endorsement to that effect was found on the back of
the receipt.

83
 50 Selected Opinions of the Bar Council of India 84
Therefore no case of misconduct was made out against the Respondent-Advocate. The
D.C. of the B.C.I. felt that the complaint was misconceived and therefore it was liable to
be dismissed.

ORDER

The complaint was accordingly dismissed.

 CASE 39
(Interfering with the Decision by Influencing the Judge)
16(2) 1989 IBR 280

D.C. Appeal No. 46/1986

Bar Council of Maharashtra vs. G.M.

Shri V.C. Mishra (Chairman) and Shri K.D. Sood and Shri D.K. Trivedi (Members)

Judgement Dated 20th April 1988

FACTS OF THE CASE

An Advocate issued a pamphlet containing allegations of corruption, misconduct, etc

against the members of the bar as well as the judiciary. It appears that the name of the
Respondent also figured therein. It was alleged that the Respondent was appearing as a
Public Prosecutor in a criminal case. In that case one of the witnesses had made a
statement as under:

“It is true that I was shown the accused persons who were kept in the lock-up before I
identified them in the identification room”.

This was a material evidence. To this the judge added the word “not” before the word
“true”. He thereby changed the entire nature of the case. This was done at the instance
of the Respondent Public Prosecutor behind the back of the defence counsel. After
inquiry, the Maharashtra S.B.C. initiated suo motu disciplinary proceedings against the
Respondent.

PROCEEDINGS

It was not the disputed that the word “not” was not in the handwriting of the
Respondent. It was not alleged that the word was written by him, but what was alleged
was that the word was written at his instance. In support of this allegation the two
defence counsels in the case were examined. They deposed to the effect that the word
“not” did not appear in their copy of the judgement but was found only in the copies of
the judge and the Public Prosecutor. Therefore it was apparent that the word was
subsequently inserted by the judge at the instance of the Public Prosecutor. When the
defence counsels objected to this, the judge scored out the word “not”.

According to the Respondent the correction was made by the judge in the open Court.
One of the Complainant’s witnesses stated that he did not know who made the
correction. The deposition was in the custody of the Sheristedar. Evidence of the

85
 50 Selected Opinions of the Bar Council of India 86
Sheristedar was not lead to throw light upon the matter. No attempt was also made to
explain in whose hand the correction was effected. It is dangerous to conclude that the
same was done by the Public Prosecutor on the ground that he was an interested
person.

The deposition of the said witness in the criminal case showed that he was first asked
whether accused were a shown to him prior to the identification parade. This was denied
by him. Later a suggestion was made to him that prior to the identification parade the
accused were shown to him, and his deposition was recorded as an admission of
suggestion. Later on, a change was made to the statement by changing it from “true to
say that” to “not true to say that”. Thus it was clear that at the time of deposition itself
the correction was made. It was not known at whose resistance it was make. Even if it
was made at the instance of the public prosecutor, it was difficult to attribute any mala
fide intention or ulterior motive to it. Therefore the Bar Council could not hold the Public
Prosecutor guilty of professional misconduct.

ORDER

Therefore the D.C. of the S.B.C., after considering the records in detail, rejected the
Complainant. The order and the reasons for the order given by the D.C. of the S.B.C.
were upheld by the D.C. of the B.C.I. and the appeal was dismissed.
 CASE 40
(Interfering with Decision by Influencing the Judge)
16(2) 1989 IBR 289

B.C.I. Tr. Case No. 2/1980

Suo Motu Enquiry vs. Smt. S.T.B.

Shri N. Rangaraj (Chairman) and Shri P.V. Shetty and Shri A.B. Patil (Members)

Judgement Dated 12th September 1988

FACTS OF THE CASE

Complainant’s Case: Maharashtra S.B.C. initiated suo motu inquiry against the
Respondent on the basis of a complaint filed by a Housing Society. There was a dispute
between the Housing Society and a Company of Builders in respect of construction of
certain building entrusted by the society to the builders. The builders filed a civil suit
against a society and obtained a temporary injunction against the society restraining it
from getting the building constructed through any other builder. The matter was delayed
beyond reasonable period and the society suffered a great hardship, loss and
inconvenience.

Under these circumstances the Respondent-Advocate assured the society that she would
get the matter disposed of early by exercising her personal influence over the judge and
demanded certain amount of money for that purpose. All the members of the Society
contributed the money and met the demand of the Respondent-Advocate. Therefore the
Respondent is guilty of misconduct.

Respondent’s Case: The Respondent denied all the allegations made against her. She
denied that she had taken any money from the society or that she had any connection
with the society. She stated that she had obtained a loan from the Secretary of the
Society in his personal capacity and as there was a delay in repayment this false
complaint is lodged against her.

PROCEEDINGS

On the basis of the pleadings of the parties the S.B.C. framed the following issues:

1. Whether Respondent received money from the Society for the purpose of
exercising her personal influence over the judge and the temporary injunction
vacated?

2. Whether the Respondent had committed any professional misconduct?

87
 50 Selected Opinions of the Bar Council of India 88
Both the witnesses produced by the Complainant stated in their evidence as to the fact
of payment of money to the Respondent. The first witness also stated the purpose for
which it was paid to her while the second witness could not tell why the money was paid
to her. The first witness was not cross-examined by the Respondent. The Secretary of
the Society, who was the Respondent’s witness supported the Respondent’s case that
she had taken loan from him. But the Bar Council was inclined to accept the evidence of
the Complainant’s witnesses which categorically stated that the money paid to the
Respondent has collected from the members of the society, as this evidence the
remained unchallenged by the Respondent. It appeared to the Bar Council that the
Respondent’s witness was only trying to support the case of the Respondent. Further, it
was the case of the Respondent that the Secretary of the Society was instrumental in
filing this complaint as there was a delay in the payment of loan advanced by him to the
Respondent. Under these circumstances if the Secretary of the Society comes out and
supporters the case of the Respondent, his evidence is not worthy of any credit. Further
it was elicited from the second witness of the Complainant in his cross-examination that
the money was collected from all the members of the society and was paid to the
Respondent in her personal capacity. From this evidence it was clear that the money
was paid to her by the Society and that it was not a loan advanced by the Secretary in
his personal capacity.

The Respondent being an Advocate was required to maintain professional integrity and
standard. She was required only to plead for the party and put forward the case and
assist the Court to come to a right conclusion. No Advocate can offer to do something to
get him the case or get a favourable order from the Court by exercising his personal
influence over the presiding officer of the Court.

D.C. of B.C.I. held that the Respondent had received money from the Society assuring
that she would exercise her personal influence over the judge and get the work done.

ORDER

Therefore B.C.I. found the Respondent guilty of professional misconduct of severe

nature. The Respondent was suspended from practice for a period of 1 year. The
Respondent was also ordered to pay a sum of Rs. 1,000 to the Complainant towards the
costs of the case.

B.C.I. would have taken a very serious view of the matter, having regard to the gravity of
misconduct committed by the Respondent. But as she was in the beginning years of her
career as an Advocate, and also because she had refunded the entire money to the
Society, the D.C. of the B.C.I. was inclined to take lenient view in respect of the quantum
of punishment.

B.C.I. relied upon the decision of Supreme Court reported in AIR 1985 SC 110 in
support of its opinion.
 CASE 41
(Contempt of Court by Making Scandalous Allegations against the Presiding
Officer)
16(3&4) 1989 IBR 524

B.C.I. Tr. Case No. 101/1988

P.R. vs. V.I.

Shri B.N. Bajpayee (Chairman) and Shri S. Sethuraman and Shri N. Rangaraj (Members)

Judgement Dated 3rd September, 1988

FACTS OF THE CASE

At the material time the Complainant was a Munsiff-Magistrate and the Respondent was
an Advocate. The Respondent-Advocate was representing the Respondent in a
maintenance case pending before the Complainant. When the case was called out, the
Respondent and his Advocate were both absent, and hence, the case was heard ex parte.

Respondent-Advocate, in his personal capacity filed a petition under the Contempt of

Courts Act against the Complainant. In the petition it was alleged that prior to the date
of ex parte hearing of the maintenance case the Complainant was transferred. Instead of
handing over the charge immediately, he went on to hear the case. Therefore the hearing
of the maintenance case was null and void and was liable to be set aside. Further, it was
alleged that even after his transfer to a different Court, the Complainant continued to
hold the charge of the Court, which amounted to be disregard of the order of the High
Court and therefore it amounted to contempt of court. In support of his allegations, the
Respondent made several other allegations against the Complainant. These allegations
were scandalous in nature. The petition was filed before the Complainant himself. As the
case was against Complainant himself, he promptly forwarded it to the District and
Sessions Judge, who in turn, forwarded it to the High Court. After going through the
petition the High Court directed the Complainant to institute a complaint before the
S.B.C. of Andhra Pradesh against the Respondent for making such scandalous
allegations against a judicial officer. Thus the Respondent was guilty of professional
misconduct by making scandalous allegations against the judicial officer by name, and
thereby becoming party to foment litigation and bringing down the reputation of a
judicial officer.

Respondent’s Case: The Respondent in his defence did not deny the fact of filing the
Contempt of Court Petition. But he stated that the petition was filed as an Advocate for
the Respondent in the maintenance case and not in his personal capacity as alleged in
the complaint. Hence he has not committed any professional misconduct. He alleged

89
 50 Selected Opinions of the Bar Council of India 90
that there was a conspiracy between the Complainant and the District and Sessions
Judge to victimise him.

PROCEEDINGS

The Respondent did not co-operate with both the D.C.s in conducting the proceedings.
He did not appear before them and continuously went on writing letters seeking
adjournment on one pretext or the other. Subsequently he was appointed as Munsiff.
S.B.C. communicated its order to appear before it to him through the District and
Sessions Judge under whom the Respondent was working. In spite of the advice of the
District and Sessions Judge the Respondent did not appear before the S.B.C. Instead he
found fault with the State Bar on itself in not giving him sufficient opportunity to be
present before it. In the meanwhile the period of 1 year expired and the case stood
transferred before the B.C.I.

Even before the B.C.I. he was not present and therefore the B.C.I. went on to hear his
case ex parte and expressed its strong displeasure over the conduct of the Respondent in
not giving respect to the statutory bodies like the D.C.s of S.B.C. and the B.C.I.

From the contents of the petition it could be very easily seen that the allegations made
by the Respondent against the Complainant were scandalous and unwarranted. The
petition was not signed by the party whom the Respondent alleged to represent, but was
signed only by the Respondent. The petition was filed before the Complainant himself
joining him as a Respondent therein. This was also undesirable. He could have
approached higher authorities. If he was aggrieved by the order of the Complainant he
could well have preferred appeal or revision to the higher courts. B.C.I. cited a decision
of the Madras High Court reported in 1959 MLJ 329, wherein it was observed by the Full
Bench of the High Court that an Advocate is a responsible officer of the Court and a
member of the profession and would be guilty of grave professional misconduct if
knowing that certain allegations are false he nevertheless allows the allegations to be
made in the affidavit filed by his client. In the instant case the matter was even more
serious because the Respondent himself had made the allegations himself.

ORDER

Therefore the B.C.I. had no doubt that the Respondent had committed professional
misconduct in filing a petition against the presiding officer with serious allegations, and
therefore is liable to be punished under sec. 35 of the Advocates Act, 1961.

But the B.C.I. desisted from passing a sentence in view of the fact that the Respondent
had since been appointed as a judicial officer and had ceased to be an Advocate. The
order was referred to the High Court of Andhra Pradesh for necessary action.
 CASE 42
(Sending Notice to the Presiding Officer for Passing Remarks against the Advocate
in the Judgement)
15(1&2) 1988 IBR 200

D.C. Appeal No. 41/1986

A.K. vs. R.S.

Shri B.N. Bajpayee (Chairman) and Shri S. Sethuraman and Shri N. Rangaraj (Members)

Judgement Dated 17th October, 1987

FACTS OF THE CASE

Complainant’s Case: In the judgement in a suit conducted by the Respondent-Advocate

before the Complainant, the Complainant made certain remarks against the Respondent
Advocate. The Respondent issued a notice under sec. 80 Code of Civil Procedure. In the
notice the Respondent claimed damages from the Complainant for making such remarks
in the judgement. The Complainant took a serious note of the same and represented the
matter to the High Court with the observation that the Respondent had committed
professional misconduct in so sending notice to him. The High Court directed him to
refer the matter to the Andhra Pradesh S.B.C.. Therefore the S.B.C. initiated suo motu
inquiry against the Respondent.

Respondent’s Case: The Respondent admitted that he had issued the notice to the
Complainant, but that was because of anxiety. He did not have any intention to proceed
against the Complainant. He also brought it to the notice of the B.C.I. that he had been
prosecuted for contempt of court and in those proceedings he had tendered his apology
to the High Court. He also said that he was about 70 years of age and actually did not
mean anything against the Complainant.

PROCEEDINGS

The D.C. of the S.B.C. felt that the Act on the part of the Respondent was highly
unethical. It opined that if the Advocate was aggrieved by the findings of the
Complainant he should have taken some other recourse for getting the relief. He should
not have sent notice to the Presiding Officer. It referred to the duty of the Advocate under
section 49(1)(c) in Chapter II of Part VII. Rule 1 clearly states the limit by which the
Advocates can conduct himself as a member of a noble profession. Hence he was held
guilty of professional misconduct and was reprimanded.

91
 50 Selected Opinions of the Bar Council of India 92
D.C. of the B.C.I. also formed the opinion that the Respondent-Advocate had exceeded
his limits. But it accepted his submission that the same was done only in a state of
anxiety without any intention to insinuate the Complainant. The Respondent had
already tendered his apologies to the High Court. Under these circumstances B.C.I. was
of the opinion that the act of the Respondent was only a bona fide mistake not
amounting to professional misconduct.

ORDER

Therefore the appeal was allowed setting aside the order of the Andhra Pradesh S.B.C..
The D.C. of the B.C.I. expressed that the Respondent should behave himself properly in
future, and should not indulge in any such activities. It cautioned him that he should
behave as a member of the noble profession.
 CASE 43
(Conduct Unbecoming of an Advocate)
16(1) 1989 IBR 99

B.C.I. Tr. Case No. 16/1988

R.G. vs. M.S.

Shri L.P. Bhargava (Chairman) and Shri N. Rangaraj and Shri S.N. Tandon (Members)

Judgement Dated 16th October 1988

FACTS OF THE CASE

Complainant’s Case: Complainant was sitting at the Court compound near the office of
the Respondent-Advocate waiting for his wife. Respondent-Advocate all of a sudden came
to him and without any pretext abused him and also threatened him of dire
consequences. Complainant moved away from that place and searched for his wife. He
saw her sitting in the canteen with the junior of the Respondent. Before the Complainant
could approach the place, his wife and the junior Advocate had disappeared from that
place. Hence the conduct of the Respondent is unbecoming of an Advocate, and
therefore, he should be dealt with according to the law.

Respondent’s Case: All the allegations made in the complaint were denied by the
Respondent. He had nothing to do with the alleged incidents. In fact, the lady alleged to
be the wife of the Complainant is not his wife at all. She was, in fact, a client of the
Respondent’s junior and on that particular a day she was being chased by the
Complainant who was an anti-social element. She entered the Respondent’s office
seeking his help. In order to help the lady in distress, the Respondent warned the
Complainant and sent him away.

PROCEEDINGS

S.B.C. sent several notices to the Complainant, but he did not appear before the D.C. In
the process, there was efflux of time stipulated under the Advocates Act 1961. Therefore
the case stood transferred before the Bar Council India.

Before the B.C.I. the Complainant appeared and submitted that he was not pressing the
complaint and that it was not directed against the Respondent. He had no grievance
against the Respondent. By mistake his name was mentioned as the Respondent. The
Complainant wanted to seek the remedy against some other person.

93
 50 Selected Opinions of the Bar Council of India 94
B.C.I. was not satisfied with the explanation given by the Complainant and took a very
serious view of conduct of the Complainant in dragging the Respondent who appeared to
be a very well experienced and senior member of the bar into a frivolous case. The
averments made in the complaint were also found the to be very flimsy.

ORDER

Hence the D.C. of the B.C.I. dismissed the complaint with costs.
 CASE 44
(Conduct Unbecoming of an Advocate)
16(2) 1989 IBR 258

D.C. Appeal No. 14/1988

N.S. vs. K.V.

Shri B.N. Bajpayee (Chairman) and Shri S. Sethuraman and Shri N. Rangaraj (Members)

Judgement Dated 3rd September 1988

FACTS OF THE CASE

Complainant’s Case: Complainant is also an Advocate of High Court and is a senior

member of the bar with 33 years of experience. On 12 November 1986, at about 1.50
p.m. when he was going to the Bar Association, the Respondent-Advocate informed him
that he had made a mention of a case before the judge. In that case the Complainant
represented the petitioner and the Respondent represented the Respondent therein in
the capacity of a Government Pleader. Complainant said that he had no notice of the
mention and that “he will see to it”. On this, the Respondent somehow got infuriated and
without any reason or justification abused the Complainant and used vulgar words.
Without any reason or justification the Respondent insulted the Complainant and used
the filthy, vulgar and abusive language against the senior member of the bar. This has
lowered the dignity of the profession and therefore Respondent has committed
misconduct.

Respondent’s Case: The Respondent filed his defence denying the allegations made in
the complaint. He contended that he mentioned a particular case to be posted before the
judge and to this the Complainant said that “he will see to it” and menacingly
gesticulated. Since the Complainant had said that “he will see” and referred to him, he
got angry and there was heated exchange of words between them. But he never used any
abusive language against the Complainant. Anyway, he expressed his deep regret for
what all happened between them.

PROCEEDINGS

From the pleadings of the parties the B.C.I. framed the following issues:

1. Whether the Respondent used abusive language against the Complainant?

2. Whether the use of those words amounted to Professor misconduct?

95
 50 Selected Opinions of the Bar Council of India 96
The S.B.C. found both the issues against the Respondent and found him guilty of
misconduct. The apology tendered by the Respondent was not accepted by the
Complainant. In the circumstances, the D.C. of S.B.C. passed order suspending the
Respondent from practice for a period of six months.

In his evidence that Complainant stated that he enrolled himself as an Advocate of

Madras High Court and had a good practice. He was a freedom fighter. He has no grudge
or grievance against the Respondent and there were no ill feelings. He admitted that he
had said “I will see to it”. But contended that he did not warrant use of foul language on
the part of the Respondent.

In the cross-examination a suggestion was made to the Complainant that he had some
personal cases under the Urban Land Ceiling Act, and had approached the Respondent
who is a Government Pleader for a favour. When he did not oblige the Complainant had
filed this false complaint to prevent him from appearing in those cases as Government
Pleader. This was denied by the Complainant.

In his evidence the Respondent stated that he too was an Advocate on the bar of a long-
standing and hence he was appointed as the Government Pleader. He represented as
Government Pleader in many cases in which the Complainant was personally interested
and Complainant lost in several cases because of the Respondent’s vigilant
representation in those cases. Therefore, Complainant had grudge against the
Respondent.

As to the incident which took place on the alleged day, Respondent said that there was
heated exchange of words and regretted about them if they had hurt the Complainant’s
feelings in any manner.

From the records of the case D.C.s of the Bar Council’s came to the conclusion that the
Respondent uttered vulgar words against the Complainant.

In Chapter II of the Rules framed under section 49(1)(c) of Advocates Act, 1961, with
reference to the Standards of Professional C and Etiquette, it has been stated in the
preamble that:

“An Advocate shall, at all at times, comport himself in a manner befitting his status as an
officer of the Court, a privileged member of the community, and a gentleman, bearing in
mind that what may be lawful and moral for a person who is not a member of the bar, or
for a member of the bar in his non-professional capacity may still be improper for an
Advocate. Without prejudice to the generality of foregoing obligations, an Advocate will
shall fearlessly uphold the interests of his client, and in his conduct conform to the rules
hereinafter mentioned both in letter and spirit. The rules hereinafter mentioned contain
canons of conduct and etiquette adopted as general guides; yet the specific mention
thereof shall not be construed as a denial of others equally imperative though not
specifically mentioned.”
97 50 Selected Opinions of the Bar Council of India
Accordingly, an Advocate is expected to maintain the highest standards of behaviour,
both to his client and colleagues. Even assuming that there is no professional
misconduct, there is certainly “other” misconduct.

The apology tendered by the Respondent was not accepted by the Complainant as he felt
humiliated and hurt by the words used by the Respondent and also by the questions put
to him in his cross examination. As the Respondent had tendered unconditional apology
and withdrawn the suggestions made to the Complainant in the cross-examination it
appeared to the Bar Council that the Respondent was really repenting in for his
behaviour. Hence it was felt to be not necessary to suspend him from practice and that
reprimand was sufficient.

ORDER

D.C. of the B.C.I. upheld the order of D.C. of the S.B.C. on misconduct but set aside the
suspension order and reprimanded the Respondent under section 35(3)(b) for the offence
committed by him.
 CASE 45
(Lowering the Dignity of the Profession)
16(3&4) 1989 IBR 572

D.C. Appeal No. 10/1988

N.A.H. vs M.R.S.

Shri V. Rajayah (Chairman) and Shri N. Rangaraj and Shri V.R. Reddy (Members)

Judgement Dated 26th November, 1988

FACTS OF THE CASE

Complainant’s Case: The Respondent-Advocate while practising as an Advocate

obtained a licence for running an arrack shop in his name. He was carrying on the sale
of arrack and running the shop. This amounted to professional misconduct and he
should be dealt with in accordance with law.

Respondent’s Case: In his defence, the Respondent admitted obtaining the licence for
running arrack shop, but submitted that he was only a benamidar to his father and
brother who were actually running the business. As his father and brother were jobless,
in the order to help them he obtained the licence. As he was a member of the ruling
AIADMK, which was helping its members by issuing such licences, he could easily get
the licence in his name. He could not have got the licence in the name of his father or
brother.

As he had won a case against the Complainant in a criminal court and also because
there was some dispute between his family and the family of the Complainant, the
Complainant had instituted this case at the instance of some of the members of the bar
who were jealous about his progress in the profession.

PROCEEDINGS

The Bar Council framed the following issues:

1. Whether the Respondent has obtained licence in his name as benamidar for his
father and brother?

2. Whether lending name for the purpose of getting a licence for running arrack
shop would amount to professional misconduct?

3. If so, questioned what punishment?

98
99 50 Selected Opinions of the Bar Council of India
Respondent admitted that he had obtained the licence for running arrack shop and also
that he had been practising at the same time. But he stated that he had obtained the
licence for the sake of his father and brother. He stated that he had separated from his
father and brother by an oral partition. He produced affidavits of his father and brother
stating categorically that the Respondent had nothing to do with the business. He had
also filed a deed of partition between himself and his father and brother. He stated that
he had to obtain a licence in his name because he could get it as a member of the ruling
AIADMK, whereas his father are brother could not. The Respondent expressed his regret
for having lent his name without thinking of the consequences.

Rule 47 of the rules of the Bar Council is very much clear:

“An Advocate shall not personally engage in any business but he may be a sleeping
partner in a firm doing business provided that in the opinion of the appropriate State Bar
Council the nature of the business is not inconsistent with the dignity of the profession.”

Therefore, D.C. of the S.B.C. was of the opinion that there cannot be any doubt that by
lending his name for the arrack licence the Respondent had committed professional
misconduct. The D.C. also expressed doubt as to the genuineness of the regret as it did
not come in the initial stages but was put forth only at the arguments stage. It was also
observed that the case of the Respondent is all false. This observation was specifically
challenged in the appeal on the ground that the case of the Respondent did not have any
inconsistency or controversy but was very much cogent. B.C.I. accepted this view as his
evidence was not shattered away by the Complainant.

In any case, B.C.I. observed that the lending of name for running arrack shop itself
amounted to professional misconduct whatever may be the facts, because the same is
inconsistent with the dignity of the legal profession.

In respect of the sentence passed by the D.C. of the S.B.C., the D.C. of the Bar Council
of the India found that it was too much excessive. Respondent has separated from his
father and brother and was living with his wife and children. He only wanted to help his
father and brother. He was not a beneficiary of the business. Appellant had expressed
his regret and also prayed for mercy as otherwise his life would be in distress as it would
be very difficult for him to support the family consisting of wife and children, if such
severe sentence of suspension was not set aside. He had also undertaken not to indulge
in any such illegal activities in future.

ORDER

The sentence of the D.C. of the S.B.C. suspending the practice of the Respondent for a
period of 5 years was held to be very much excessive. The same was reduced to
reprimand.
 CASE 46
(Acting in a Case in Which the Advocate has Pecuniary Interest,
Sharing Profits of Case and Lending Money to the Client)
16(3&4) 1989 IBR 532

D.C. Appeal No. 23/1988

D.R.M. vs. S.A.M. and I.M.K.

Shri V.C. Mishra (Chairman) and Shri B.N. Sharma and Shri Viresh Mishra (Members)

Judgement Dated 16th July, 1989

FACTS OF THE CASE

Complainant’s Case: Complainant has levelled three charges against the Respondents:

1. They have acted and the pleaded in a case in which they themselves have the
pecuniary interest, which is prohibited by Rule 9 of the Rules framed under Sec.
49 (1) (c) of the Advocates Act, 1961.

2. They have agreed to share the proceeds of the litigation.

3. They have lent the money to their clients for the purpose of legal proceedings in
which they are engaged by their clients.

B.C.I. opined that there was no evidence on record to substantiate the second and third
charges. Therefore it elaborately dealt with the first charge only and preferred to discuss
the cases of the two Respondents separately.

Respondent No. 2’s Case: The allegations against Respondent No. 2 was that well
before the beginning of his practice he was a party to an agreement for sale. This
agreement for sale was in respect of a joint family property and the Respondent No. 2
was one of the vendees. The vendor in the agreement of sale filed the suit against the
other members of the joint family for partition and possession of their share in the
property. During the pendency of the suit the said vendors transferred their share in the
joint family property to three persons, one of whom happened to be the wife of
Respondent No. 1. Even on that date Respondent No. 2 was not an Advocate.
Subsequently he became Advocate and appeared for the Defendants in that suit. Before
so appearing in the suit he gave up his right under the said agreement for sale and as
such he did not have any pecuniary interest in the subject matter of the suit. Therefore
no case is made out against him.

100
101 50 Selected Opinions of the Bar Council of India
Respondent No. 2’s Case: Respondent No. 1 proved that his wife had her own power
loom and is an Income Tax payer, and that she had purchased the property out of her
own funds.

PROCEEDINGS

Rule 9 of the B.C.I. Rules on Standards of Professional Conduct and Etiquette reads as
under:

“An Advocate should not act or plead in any matter in which he is himself pecuniarily
interested.

Illustration:

I. He should not act in bankruptcy petition when he himself is also a creditor of the
bankrupt.

II. He should not accept a brief from a company of which he is a director.”

B.C.I. observed that this rule has to be interpreted in a pragmatic manner having regard
to the object of framing this rule. In the opinion of the B.C.I. the object of framing this
rule is to prohibit an Advocate from appearing in a case in which his pecuniary interest
is liable to affect the performance of his duties as an Advocate in that case. If the
Advocate is a creditor of the bankrupt, he cannot conduct the case fairly as an Advocate
for the bankrupt because he will be benefited by losing the case. Similarly a director of
the company who is also an Advocate for the company will be tempted to charge excess
fee and get it sanctioned as the director of the company. Rule 9 does not prohibit an
Advocate from appearing in a case in which he is a party, on his own behalf. Therefore
there is no reason to say that he is prohibited from appearing for his own relation such
as his wife or children. It would be unreasonable to interpret Rule 9 to say that the near
relations like a parents, wife, children, brothers or sisters, etc. of an Advocate of are
compelled to engage another Advocate and cannot avail as the professional competence
of an Advocate who is their near relation and in whom there are likely to have much
more confidence.

ORDER

Therefore B.C.I. upheld the order of the S.B.C. and held that the Respondent No. 1 was
not guilty of misconduct.

Both the Respondents were held not guilty of misconduct and the appeal was dismissed.
Though the complaint appeared to be wholly mala fide, taking the lenient view B.C.I.
made the costs easy on the parties.
 CASE 47

(Conviction for Offence involving Moral Turpitude)

16(3&4) 1989 IBR 520

B.C.I. Tr. Case No. 10/1986

Bar Council of Maharashtra vs. G.L.

Shri C.L. Sachdeva (Chairman) and Shri N.K. Jain and Shri S.C. Chawla (Members)

Judgement Dated 6th May, 1988

FACTS OF THE CASE

The Respondent-Advocate was legal adviser to the Government of Maharashtra, i.e.,

M.S.R.T.C. In that capacity, he accepted some illegal gratification and was arrested,
tried, convicted and punished under sec. 161 I.P.C. r/w sec. 5(1)(d) and sec. 66 (2) of the
Prevention of Corruption Act. His appeal was rejected by Bombay High Court and his
application for Special Leave to Appeal was summarily rejected by the Supreme Court.
After serving the sentence, the Respondent continued to practise.

After about 8 years Bar Council of Maharashtra received an anonymous letter alleging
the above facts and made an inquiry with the High Court. The Additional Registrar of
Bombay High Court confirmed the facts. Up on this, the S.B.C. initiated disciplinary
proceedings against the Respondent, which stood transferred before the D.C. of B.C.I. as
they were not completed within the statutory period of one year.

OPINION OF THE B.C.I.

Sec. 24A(1) of the Advocates Act, 1961 provides as under:

“No person shall be admitted as Advocate on a State Roll -

a) if he is convicted of an offence involving moral turpitude;

b) if he is convicted of an offence under the provisions of the Untouchablity

(Offences) Act, 1955 (22 of 1955);

c) if he is dismissed and removed from employment or office under the state on

any charge involving moral turpitude.”

102
103 50 Selected Opinions of the Bar Council of India
Explanation: In this clause, the expression “State” shall have meaning assigned to
it under art. 12 of the Constitution:

Provided that disqualification for enrolment as aforesaid shall cease to have effect
after a period of 2 years has elapsed since his release or dismissal or, as the case
may be, removal.”

The bare reading of section 24A(1)(b) will reveal that if a person is convicted of an offence
involving moral turpitude he is the disqualified from becoming an Advocate. But this
disqualification ceases to have effect after two years from his release. B.C.I. interpreted
this provision as to be applicable to an already enrolled Advocate also.

The Respondent was convicted of an offence envisaged under sec. 24A(1)(b) of Advocates
Act, 1961. Hence he was disqualified from continuing on the Rolls of Maharashtra S.B.C.
from the date of conviction till the lapse of two years from the date of his release. But he
did not inform the fact of his conviction to the S.B.C. He ought to have intimated this
fact to the S.B.C. immediately after his appeals were rejected. B.C.I. observed that the
conduct of the Respondent was highly depreciable and deplorable, and deserved
extremely deterrent punishment.

However, Respondent was an old aged person, of 75 years age, and was suffering from
various diseases. He started practice only after about to 2½ years after his release. He
has not been accused of any misconduct, etc thereafter, and in fact was rendering free
services to certain organisations. He had a family dependent upon him. Keeping in mind
all the circumstances and especially the fact that there was a lapse of 8 years from the
date of his release, B.C.I. was inclined to take lenient view.

ORDER

Under the circumstances, Bar Council felt that it would serve the ends of justice if the
Respondent was reprimanded with admonition instead of punishment. It was also made
clear that this decision was not forming the precedent as the view was taken only in the
special facts and circumstances of the case.
 CASE 48
(Working for Political Ideology and Conviction for Offences Involving Moral
Turpitude)
15(1&2) 1988 IBR 182

D.C. Appeal No. 45/1974

V.N. vs Bar Council of Maharashtra

Shri L.P. Bhargava (Chairman) and Shri P.H. Somayajulu and Shri V.R. Reddy
(Members)

Judgement Dated 27th November, 1987

FACTS OF THE CASE

Complainant’s Case: The Respondent-Advocate was tried and convicted for committing
offences under sec. 121A, 102B, r/w secs. 302, 122 and 124A r/w secs. 109 and 114,
and was sentenced to suffer imprisonment for varying periods up to two years. The
Respondent-Advocate preferred appeal from this order to the Bombay High Court. The
order was confirmed by the Bombay High Court, but the sentence was reduced to which
the Respondent-Advocate had already undergone because she was in jail as an under
trial for about two years.

Respondent’s Case: The Respondent claimed that she was a member of a political party
and was professing an ideology which was not banned by law. She was convicted for a
political offence which is quite different in nature from other offences under the Indian
Penal Code, which involve moral turpitude. She has already been punished by the
criminal courts for having committed the offence and she cannot be again convicted by
the D.C. of either S.B.C. or of the B.C.I. for the same offence and that would amount to
double jeopardy.

The following cases were cited by the parties in support of their cases:

Complainant Respondent

22 BLR 13 AIR 1963 All 527

36 BLR 1136 AIR 1966 Punj 393
AIR 1936 Cal 158 AIR 1965 Punj 433
AIR 1934 Rang 33 AIR 1959 All 71
AIR 1924 Mad 129 AIR 1966 Punj 393
AIR 1931 Nag 33 AIR 1936 Cal 157
AIR 1963 SC 1313

104
105 50 Selected Opinions of the Bar Council of India
PROCEEDINGS

The expression “moral turpitude” is not defined anywhere. The rulings cited by the
Respondent indicated various factors which should be considered in deciding whether
any particular act or offence committed by any person would involve moral turpitude.
The following were the main basis of decision as to whether there is moral turpitude:

1. Whether the act leading to a conviction is such as could shock the moral
conscience of the society in general;

2. Whether the motive which led to the act is a base one and whether on account
of the act having been committed the perpetrator could be considered to be to
be of depraved character or a person who was to be looked down upon by the
society.

The meaning of the phrase “moral turpitude” depends on facts and circumstances of
each case. It may mean doing an act contrary to justice, honesty and modesty and of
wicked nature. It may also mean doing an act contrary to his duty to society in general
due to vileness and depravity.

On the analysis of the decisions the principle deductible was that the test applicable in
such cases was whether the Advocate concerned is unworthy to remain a member of this
profession and is unfit to be entrusted with the responsible work of an Advocate.

The speech of the Respondent showed the object of conspiracy to exhort the people of
the country to collect arms and overthrow the government a established by law, through
armed conflict. She had also published some posters which were designed to incite the
public. This showed that she was guilty of misconduct involving moral turpitude.

It is true that the constitution does not prohibit any person, much less an Advocate,
from professing an ideology which is not banned by law. If working for that ideology the
Respondent acts in a manner discussed above, it amounts to misconduct. Therefore the
offences committed by the Respondent to could not be said to be political offences only.

The contention of the Respondent that she could not be punished twice for the same
offence was held to have no force. She was punished by criminal courts under the Indian
Penal Code. But at the same time she was also guilty of professional misconduct under
Advocates Act. Therefore there was no question of double jeopardy, as the nature of the
two proceedings are quite different.

ORDER

Therefore, the appeal was dismissed. The order of the D.C. of the Bar Council of
Maharashtra was confirmed and the appellant was held guilty of misconduct as defined
under section 35 of the Advocates Act, 1961, and the reprimand passed by the D.C. of
the Bar Council of Maharashtra was confirmed.
 CASE 49
(Fictitious Compromise by Forging Documents)
16(1) 1989 IBR 102

B.C.I. Tr. Case No. 2/1988

M.P. vs. B.P.

Smt. Ramani Natarajan (Chairman) and Shri R. Muthu Krishnana and Shri D.V. Patil
(Members)

Judgement Dated 25th March 1989

FACTS OF THE CASE

Complainant’s Case: The name of Complainant’s wife was recorded in revenue records
as the tenant of a land. Parents of the Respondent have nothing to do with the said land.
The Respondent filed a consolidation case under sec. 9(a)(2) of the Consolidation of
Holdings Act, in the Court of Consolidation Officer, Naugarh, Dist: Basti. Complainant’s
wife was impleaded as a defendant in that case. But no notice was served upon her. On
the other hand, a fictitious compromise signed by some impostor was filed by the
Respondent. On the basis of this false compromise petition, a compromise decree was
drawn and records were accordingly changed in the names of the Respondent’s parents.
Complainant’s wife has never signed the compromise. Hence the Respondent has
committed professional misconduct in bringing about such a fictitious compromise.

Respondent’s Case: All these allegations were denied by the Respondent. He was not
the lawyer for his parents and has nothing to do with the compromise. In the above-
mentioned case the relations between the parties have been strained, and hence to
harass the Respondent this false complaint has been filed against the Respondent.

Both the parties stated that the compromise has been challenged by the Complainant
and the same is pending before the superior officer.

PROCEEDINGS

The only issue before the B.C.I. was:

Whether the Respondent was in any manner concerned with the alleged
compromise?

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107 50 Selected Opinions of the Bar Council of India
The rival parties chose not to lead oral evidence. They filed their evidence through their
respective affidavits. Complainant did not produce any other evidence. The Respondent
produced the copies of vakalatnamas filed by two different Advocates, one on behalf of
his father and the other on behalf of his mother. He also filed a copy of the compromise
and a copy of order of the Consolidation Court. The order made it further clear that the
Respondent was in no way concerned with the case.

ORDER

On the basis of the material before it, it did not appear to the D.C. of the B.C.I. that the
Respondent was guilty of misconduct. As a result, the complaint was dismissed with an
observation that Complainant would be at liberty to file fresh complaint if he found any
new evidence in the course of the matter pending before the Superior Officer in respect
of the compromise petition.
 CASE 50

(Filing Forged Vakalatnama, Representing a Client without Authority)

14(4) 1987 IBR 753

B.C.I. Tr. Case No. 57/1987

C vs. M

Shri C.L. Sachdeva (Chairman) and Shri V.C. Mishra and Shri O.P. Sharma (Members)

Judgement Dated 30th December, 1987

FACTS OF THE CASE

Complainant’s Case: Complainant’s husband filed a divorce petition against her. The
summons of the case was never served up on her. She was not even aware of these
divorce proceedings. The Complainant had filed a suit for permanent injunction against
her husband for restraining him from contracting a second marriage. In that case her
husband produced a divorce decree dissolving their marriage. Surprised by this, she got
the records examined through her counsel and found that the Respondent-Advocate had
filed a false vakalatnama on her behalf in the divorce case and had conducted the case
without her knowledge, much less her authority. She being an illiterate lady could not
sign and she used to put her thumb impressions. Therefore the signature on the false
vakalatnama was not her signature. The Respondent in collusion with her husband
represented her in the case with fabricated and forged documents and lost the case
deliberately. Thereby he had committed misconduct.

PROCEEDINGS

The Respondent refused the notices sent to him by the D.C. of the S.B.C. and also did
not choose to appear before the D.C. of the B.C.I. Complainant also changed the address
and did not intimate the change of address to the B.C.I. or to the S.B.C. Therefore the
case was decided on records.

The allegations made in the affidavit filed by the Complainant remained unrebutted and
therefore they were accepted as true by the B.C.I. Therefore it came to the conclusion
that the Respondent was guilty of serious misconduct of a very grave nature. He had
filed forged vakalatnama and represented the Complainant without her authority and
knowledge.

ORDER

Therefore the Respondent-Advocate was suspended from practice for a period of six
months. The D.C. of the B.C.I. took lenient view because the Respondent-Advocate had
put in only five years of practice.

108
 CASE 51
(Other Misconduct by Making Allegations Against Various Authorities)
24(3&4) 1997 IBR 207

D.C. Appeal No. 43/1996

A vs. R

Shri D.V. Patil (Chairman) and Shri S.K. Karavendhan and Smt. Shobha N. Shinde
(Members)

Judgement Dated 18th May 1997

FACTS OF THE CASE

Complainant filed a complaint before the Tamil Nadu S.B.C. that certain applications in
the form of complaints addressed to various authorities by the Respondent amounted to
“other” misconduct. Respondent raised a preliminary issue that there was no nexus or
proximity between his standing as a lawyer and the application made by him to various
authorities and hence the D.C. had no jurisdiction to go into the merits of the case. The
D.C. of S.B.C. accepted this contention and dismissed the complaint by its order dated
10.8.1996. Against this order of the S.B.C. the present appeal was preferred.

PROCEEDINGS

The Advocate for Complainant argued that when the Tamil Nadu S.B.C. had passed
resolution that there was a prima facie case of misconduct and referred the matter to the
D.C., D.C. could not have in law dismissed the said complaint, without hearing it on
merits. He also argued that though the Respondent was called upon to file his defence,
he never filed it and hence no issues could be framed. Therefore, the D.C. could not have
decided the case on preliminary issue.

Both these arguments were rejected by the D.C. of the B.C.I. On the first ground it held
that, just because S.B.C. has passed a resolution for referring the matter to the D.C., the
D.C. does not lose its jurisdiction to decide whether it has jurisdiction or not and
whether the case is maintainable or not. B.C.I. drew an analogy from criminal
prosecution. Merely because a prosecuting agency comes to the conclusion that there is
sufficient evidence to file the charge sheet against the accused, trial Court does not lose
its jurisdiction to decide an objection raised by accused as to the jurisdiction of the
Court or maintainability of the prosecution. Further, the S.B.C. did not have the benefit
of the preliminary objection raised at a later stage. If the same were raised before the
S.B.C., probably the S.B.C. might not have referred the matter to the D.C.

109
 50 Selected Opinions of the Bar Council of India 110
On the second point also the D.C. of the B.C.I. held that it is not mandatory for the
Respondent to file his defence. Again an analogy was taken from the criminal
prosecution. An accused need not open his mouth. Initial burden of proving his guilt is
on the prosecution or Complainant as the case may be. Here also burden of proving the
misconduct by the Advocate is on the Complainant. Respondent-Advocate need not file
his defence. It is sufficient if he cross-examines the witnesses of the Complainant and
thereby shows that there is no case of misconduct made out against him. Similarly, he
can also show that there is no case against him, which requires replying to.

The Tamil Nadu S.B.C. had held that if the complaints made by the Respondent-
Advocate amounted to defamation, the Complainant was free to approach civil and
criminal Courts, and that before the Advocate is tried for “other” misconduct, such
misconduct should have some nexus or proximity with discharge of professional duties,
e.g. soliciting advertising, setting bribe, bringing judges, purchasing decrees, etc. as has
been decided by S.C. in various cases. D.C. of B.C.I. differed on both points and held
that merely because the doors of Civil and Criminal Courts are open to the Complainant,
it does not mean that the parallel remedy allowed under sec.35 of Advocates Act, 1961 is
not available to him. Further, categories of “other” misconduct are not closed. The case
law is only illustrative and confined to its own facts, and is not exhaustive. New category
of “other” misconduct could arise in the changing time. Life is not static and so also the
ingenuity of a person to commit misconduct is not limited. Under such circumstances,
case law is of a very limited value.

However, D.C. of the B.C.I. still upheld the conclusion reached by D.C. of the Tamil
Nadu S.B.C. on a different count. It carefully went through the charges accompanying
the complaint. They were made by the Respondent against the Madurai Institute of
Social Sciences. They were addressed to authorities such as UGC, Madurai Kamraj
University, C.B.I., the Ministry of Welfare. Home Secretary, Delhi, IG Crimes, Madras,
Madurai Corporation, and the Deputy Registrar, Tamil Nadu Registration Department.
They were all in respect of the functioning and mismanagement of M.I.S.S. They were
directed to the proper persons who were directly concerned with the mismanagement
and did not appear to be made just to fight the institute or any of its officers including
the Complainant. The Advocate for Complainant failed to show malice in making the
complaints. They were made only to the concerned authorities and not before the general
public. Their object was to rectify the mismanagement. It was brought to the notice of
the D.C. of the B.C.I. that in pursuance of these complaints, concerned authorities had
initiated enquiries and the same were still pending.

Advocate for Complainant argued that an Advocate must be a gentleman and he must
depict himself in a manner befitting a gentleman, but failed to pinpoint the so-called
ungentlemanly acts on the part of the Respondent.

Advocate for Complainant also argued that the Respondent was not acting for any client,
but had undertaken a so-called clinging operation of his own. This was rejected by B.C.I.
111 50 Selected Opinions of the Bar Council of India
observing that it is difficult to accept that an Advocate may act only for clients and not
for himself. It further observed that an Advocate must also play a role of a vigilant citizen
to point out the evils prevalent in the Society and in institutions funded by public money
or otherwise. History, particularly of our freedom movement, is full of illustrations of our
brother and sisters from the Bar who fought for the freedom of our country. Thus, role
has not been taken away from the members of the Bar. It would be sad day if one is to
contend that an Advocate is only a mouth-piece of his client and has no voice of his own.

Hence, the D.C. of B.C.I. observed that there was no case of professional or “other”
misconduct against the Respondent. It also observed that the complaints made by
Respondent are against the M.I.S.S. and not against Dr. Raja. In the complaint and the
vakalatnama, the M.I.S.S. was shown as Complainant and Dr. Raja as alternative
Complainant. However, Dr. Raja had not produced any authority to represent the
M.I.S.S.

ORDER

In view of the above reasons, the appeal was dismissed.

10 CASES PRESCRIBED
FOR PRACTICAL PAPER I
 2

CONTENTS

1. In the Matter of D, An Advocate 1

2. P.J. Ratnam vs. D. Kanikaram and Others 3

3. N.B. Mirzan vs. The Disciplinary Committee of Maharashtra State Bar Council 4

4. Chandra Shekhar Soni vs. Bar Council of Rajasthan and Others 5

5. V.C. Ranga Durai vs. D. Gopalan 7

6. E.M.S. Nambudiripad vs. T. Narayanan Nambiyar 8

7. In Re An Advocate 10

8. Bar Council of Maharashtra vs. M.V. Dhabolkar and Others 13

9. In Re Vinay Chandra Sharma 15

10. Supreme Court Bar Association vs. Union of India and Others 19

Summary of Cases

1. In the Matter of D, An Advocate 21

2. P.J. Ratnam vs. D. Kanikaram and Others 21

3. N.B. Mirzan vs. The Disciplinary Committee of Maharashtra State Bar Council 22

4. Chandra Shekhar Soni vs. Bar Council of Rajasthan and Others 22

5. V.C. Ranga Durai vs. D. Gopalan 23

6. E.M.S. Nambudiripad vs. T. Narayanan Nambiyar 23

7. In Re An Advocate 24

8. Bar Council of Maharashtra vs. M.V. Dhabolkar and Others 24

9. In Re Vinay Chandra Sharma 25

10. Supreme Court Bar Association vs. Union of India and Others 25
 CASE 1

IN THE MATTER OF D, AN ADVOCATE OF SUPREME COURT

AIR 1956 SC 102

(B.K. Mukherjea, S.R. Das, Venkatrama Iyyer, JJ)

The delinquent advocate was an advocate of the Bombay High Court and also
practised before the Supreme Court. He was prosecuted before the Presidency
Magistrate of Girgaum, Bombay for having committed an offence under Bombay
Prohibition Act. The prosecution ended in conviction and the advocate was
sentenced to rigorous imprisonment for one month and was fined for Rs. 201.
In default of fine he was to undergo imprisonment of four weeks. The advocate
preferred an appeal before Bombay High Court but the Bombay High Court
confirmed the order of the Presidency Magistrate.

In the meanwhile the Metropolitan Magistrate made a report to the High Court
regarding the misbehaviour of the advocate during the hearing of the case. The
Bombay High Court constituted a Tribunal consisting of 3 Members of Bar
Council and entrusted the case of misconduct by the advocate to the said
Tribunal. The Tribunal had to decide:

1. Whether the advocate is guilty of misconduct by misbehaving before the

Magistrate?

2. Whether the advocate is guilty of other misconduct by committing an offence

under Bombay Prohibition Act?

Initially the advocate objected to the very constitution of the Tribunal and took
the stand that the Tribunal did not have any jurisdiction to try the case. After
that he sufficiently protracted the proceedings and finally submitted that he
admits all the charges against him except that the report of the Magistrate
contained certain exaggerated facts. Thereupon the Tribunal submitted its
report to the High Court and High Court found the advocate guilty of the first
charge on his own admissions, but held him no guilty of misconduct under the
second charge inasmuch as offence under Bombay Prohibition Act did not
amount to an offence involving moral turpitude.
 2

The advocate prayed for a certificate of fitness to prefer an appeal before the
Supreme Court but the High Court refused to issue the certificate. The Special
Leave Petition filed by the advocate was rejected by the Supreme Court.
Supreme Court issued a rule calling upon the advocate to show cause why
action should not be taken against him for committing misconduct as an
advocate of Supreme Court.

The advocate submitted his objections challenging the proceedings before the
High Court and alleged that the same were without jurisdiction and he was
forced to admit certain facts. The Supreme Court pointed that his S.L.P. was
rejected and this was not an appeal against the order of High Court. As such he
was not to make any ground challenging the order of the High Court or
Tribunal. Thereupon the advocate challenged the report of the Magistrate
himself. But in view of his own admissions before the Tribunal Supreme Court
was not inclined to accept these grounds and held that the advocate was guilty
of misconduct. It observed that the advocate tried to avoid prosecution by
admitting the facts and hoped that upon his admission of guilt he would be
acquitted by the High Court. The Supreme Court frowned upon the tactics
played by the advocate. The Supreme Court upheld the order of the Bombay
High Court both on conviction and sentence.
 3

CASE 2

P.J. RATNAM VS. D. KANIKARAM & ORS.

AIR 1964 SC 244

(B.P. Sinha, CJ, J.C. Shah & N. Rajagopala Ayyangar JJ)

The Respondent was an advocate for the Plaintiff in a suit for possession of
certain lands. The suit was dismissed by the Trial Court and appeal was
preferred against this order before the Subordinate Judge. In that appeal an
Interim Order was issued directing the Respondents therein to deposit a sum of
Rs.1,600 in the Court by selling crops of the lands in dispute. Later on it
appears that a Second Appeal came to be preferred before the High Court
against the order of Subordinate Judge in the appeal. In the Second Appeal the
Complainant made an application for withdrawal of the money and the same
was allowed by the high court. A cheque came to be issued in the name of
Respondent-Advocate. But the Complainant did not receive the money. The
money was misappropriated by the Respondent-Advocate. Subsequently, the
Second Appeal went against the Complainant and he had to refund the money
from his own pocket. Therefore the Complainant made a complaint against the
Respondent before the High Court for having committed the misconduct by
misappropriation of client's money. The High Court found the Respondent guilty
of misconduct and suspended him from practice for a period of five years.

The Respondent preferred an appeal before the Supreme Court against the order
of the High Court.

After going through the records Supreme Court found that the facts alleged by
the Complainant were substantiated by the records and the Respondent had
committed misappropriation of client's money and thereby committed breach of
his duty towards client. Therefore the Supreme Court found that the order of the
High Court was justified and did not prefer to interfere with it.
 4

CASE 3
N.B. MIRZAN VS THE D.C. OF MAHARASHTRA BAR COUNCIL
AIR 1972 SC 46
(S.M. Sikri, A.N. Ray, D.G. Palekar, JJ)

The Complainant Shri Saidur Rehaman engaged the Respondent as his advocate
on an obstructionist notice issued to him by the Presidency Small Cause Court,
Bombay. He was introduced to the Respondent by his client one Shri Noor
Mohammed. At the time of his engagement no fee was demanded or decided but
a sum of Rs. 190 was paid to the Respondent towards the expenses. Later on the
Respondent received Rs. 975 from Saidur Rehaman’s wife representing that the
same was necessary for the purpose of depositing in the Court. After some time,
the Respondent again demanded a further sum of Rs. 250 representing that the
same was to be paid to some officer of the Court or to the Judge for getting a
favourable order in the case.

Subsequently, the Landlord of Shri Saidur Rehaman filed a case against him in
the City Civil Court, Bombay for ejectment and mesne profits. In that case the
complainant was directed by the Court to pay the arrears of rent within two
months. Surprised by this order, he made enquiries as to what happened to the
sum of Rs.950 paid by his wife for deposit in the Court, and thereupon he found
that the money was misappropriated by the Respondent. Therefore, he filed a
complaint before the Bar Council and the same was entrusted to one of its
Disciplinary Committees. The Committee found the advocate guilty and
debarred from practice.

Against this order of the D.C. of S.B.C. the Respondent preferred an appeal
before the Bar Council of India. Bar Council of India upheld the order of the
Lower D.C. on conviction but reduced the sentence from dismissal to
suspension for a period of 5 years on a condition that the Respondent shall pay
the amount misappropriated by him to Saidur Rehaman within 2 months.

Against this order of the Bar Council of India the Respondent preferred an
appeal before the Supreme Court. Supreme Court after going through all the
records found that the orders of both the D.C.s on conviction were correct and
also agreed with the sentence imposed upon him by the Bar Council of India.

Therefore Supreme Court refused to interfere with the order of the Bar Council
of India.
 5

CASE 4

CHANDRA SHEKHAR SONI VS BAR COUNCIL OF RAJASTHAN & ORS

AIR 1983 SC 1012

(A.P. Sen, E.S. Venkataramaiah, R.B. Misra, JJ.)

The Complainant Bhania and his wife Galaki were assaulted, and as a result of
this they sustained head injuries. Both of them were examined by one Dr.
Raman Verma and he referred them to a Radiologist Dr. Mangal Sharma. Dr.
Sharma examined both Complainant Bhaniya and his wife Smt. Galaki. He
found nothing abnormal in X-ray plate of the complainant Bhaniya but the X-
ray plate of Smt. Galaki revealed signs of fracture of skull. Therefore, Dr.
Sharma suggested that he should refer the matter to a specialist.

The Respondent-advocate approached the complainant with the X-ray plate

taken by Dr. Sharma and promised to get a report favourable to the
Complainant. The Complaiant engaged the Respondent as his counsel. The
respondent told the Complainant that Rs.300 had to be paid to Dr. Sharma and
sent the Complainant along with a letter to Dr. Sharma to the effect

“Dear Doctor Sahib,

I am sending the man to you with X-ray plate. Your amount is lying with me. I will come to Jalore
in the evening and see you. Please do his work and it should be done positively in his favour.

Sd/-

Chandra Shekhar Soni”

The complaiannt approached Dr. Sharma with the letter. Dr. Sharma returned
the letter to the complaiant after reading it. Thereafter, Dr. Sharma sent another
report to the Station House Officer saying that there was evidence of fracture of
the skull of the Complaiant. The Respondent did not dispute the letter or its
contents, but tried to give different colur to the words of the letter. He pleaded
that he had sent the letter to one Dr. Surinder Singh Lodha, Homeopath who
was also the Editor of a newspaper Jan Prahari. The letter was in respect of the
publication of an advertisement. The letter was sent through one Shri Mahipal
 6

The Respondent in his letter stated that, the words “I am sending the man to
you with X-ray plate” related to an X-ray plate sent by him to Dr. Lodha. The
words “your amount is lying with me” relate to Rs.20 given to Mahipal for being
handed over to Dr. Lodha for the printing of an advertisement and words “please
do his work and it should be done positively in his favour” relate to the
publication of the advertisement as desired by Mahipal. The defence plea that
Dr. Lodha had taken X-ray plate of one of his relations who was suffering from
TB. Mahipal said that he had lost the letter, and therefore, he could not produce
it before the DC of the SBC.

On the contrary, the version of the Complainant was that he had taken the letter
to Dr. Sharma who after reading it returned the same to him. The fact remains
that the incriminating letter has been produced by the Complainant. This
completely falsifies the plea taken by the Respondent in his defence that the
letter was meant for publication of an advertisement in the Newspaper.
Admittedly no such advertisement was ever published.

The Respondent made frantic efforts to save himself through false evidence. But
the evidence on record clearly showed that the Respondent had taken money to
bribe the Radiologist.

Therefore the SBC found the Respondent guilty of grave professional misconduct
and suspended him from practice for a period of three years.

The Respondent preferred an appeal before the Bar Council of India. BCI upheld
the order of the SBC both on conviction and sentence.

The Respondent preferred an appeal before the Supreme Court. The SC found
the orders of both the Bar Councils on conviction proper but found that the
sentence imposed on a junior member of the Bar like the Respondent was
excessive and reduced the same to suspension for one year.
 7

CASE 5

V.C. RANGADURAI VS D. GOPALAN

AIR 1979 SC 281

(V.R. Krishna Iyer, D.A. Desai & A.P. Sen, JJ)

The Complainant had engaged the respondent to file suits on two promissory notes of
Rs. 15,000 and Rs. 5,000 respectively. The Respondent informed the Complainant that
he had filed the suits as desired by him, and after some time he also told that the suits
were decreed in favour of the Complainant. By making these representations, he
received Rs. 855 and Rs. 2555 from the Complainant towards fees and expenses. Later
on it turned out that no suit was ever filed by the Respondent and there was no
question of any decree. The Complainant filed a complaint before the State Bar Council
against the Respondent alleging misconduct by negligence in filing the case and
making false representation.

The Respondent contended that as the other side in the suit had already approached
him in respect of some other case and as he had already tendered advice to the other
side, he advised the Complainant to approach some other advocate. On a request by
the Complainant the Respondent referred him to one K.S. Lakshmi Kumaran and the
said Lakshmi Kumaran had actually filed the suits. Respondent denied the fact alleged
by the Complainant to the effect that he had received the promissory notes and money
towards fees and expenses from the Complainant.

The DC of the SBC found that the Respondent had failed in substantiating his case and
that there was sufficient reason for believing the version of the Complainant. As such it
held the respondent guilty of professional misconduct.

The order of the DC of the SBC was challenged by the Respondent before the Bar
Council of India which upheld the order of the SBC.

This order was challenged before the Supreme Court. SC, after going through the
records confirmed the orders of both the Bar Councils.
 8

CASE 6

E.M. SANKARAN NAMBOODIRIPAD VS. T. NARAYANAN NAMBIYAR

AIR 1970 SC 2015

(M. Hidayatullah, C.J.; G.K. Mitter and A.N. Ray, JJ.)

The Appellant was the former Chief Minister of Kerala. He delivered a speech
criticising the judiciary in the country and the judges of the judiciary. In his
speech he made a general remark alleging that the judiciary and the judges are
inclined towards the rich in the society. Whenever there is a balance of justice
and choice is available between rich and poor, the judges instinctively lean in
favour of the rich. The Appellant quoted Marks and Engels and said that judges
are guided and dominated by class hatred and class prejudices. Therefore he
suggested that it would be better if the judges are elected than appointed. But as
the constitution does not provide for this type of judiciary, he expressed the
need for basic state change.

The Respondent filed a complaint before the Kerala High Court on the basis of
the statement of the Appellant as appeared in the Indian Express. He contended
that through his speech the Appellant had scandalised the judiciary and his
speech was likely to cause loss of public faith in the judiciary, and as such the
speech amounted to contempt of Court.

The Appellant accepted the press report as accurate, but contended that it
lacked in some details. The Appellant took the defence of freedom of speech and
expression and also contended that his speech did not amount to contempt of
court in that it was a fair criticism of the judiciary.

The case was heard by a Full Bench of the Kerala High Court consisting of three
judges Raman Nair, Krishnamurthy Iyer and Mathew JJ. Mathew J. found
substance in the Appellant's defence that his speech was fair criticism of the
judiciary and hence delivered judgment in favour of the Appellant. The other two
judges formed the opinion that the speech of the Appellant amounted to
contempt of Court and convicted him of contempt of court and imposed a fine of
Rs. 1000 and 1 month's imprisonment in default of fine.
 9

Against this order of the Kerala High Court, the Appellant filed this appeal before
the Supreme Court. The Supreme Court in detail examined the theories of Marx
and Engels and formed an opinion that the Appellant had mistook the theories
and as a result of this he had delivered the speech. The Supreme Court also
examined the law of Contempt of Court in detail and held that there are different
kinds of Contempt of Court. Insult to judges, attack on them, comment on
pending cases to prejudice the fair judgment in those cases, obstruction of the
officers of the Court, witnesses or parties, abuse of the process of the Court,
scandalising the judges or the Court, etc. are the chief forms of Contempt of
Court. Though art. 19 of the Constitution of India provides for the freedom of
speech and expression, it does not provide for unrestricted freedom of speech.
There are exceptions. Art. 19 does not allow one to commit contempt of court. As
such, the statement made by the Appellant in his public speech was not
protected under art. 19. Further, the speech of the Appellant did not amount to
fair criticism of the judiciary inasmuch as the same was politically motivated
and was made in order to gain political fame for the Appellant. The words of the
Appellant were believed by people and it lowered the dignity of judiciary and the
constitution in the eyes of common people.

Therefore, the Supreme Court fully agreed with the majority judgment of the
Kerala High Court and dismissed the appeal. However, the Supreme Court was
pleased to reduce the sentence to fine of Rs. 50 or imprisonment of 1 week in
default of the payment of the fine.
 10

CASE 7

IN RE AN ADVOCATE

AIR 1989 SC 245

(M.P. Thakkar and B.C. Ray, JJ.)

Complainant's Case: Respondent No. 1 was an advocate practicing in

Bangalore. One of his clients had entered into an agreement with a person for
the purchase of a property by paying earnest money of Rs. 35,000. As the said
person did not execute sale deed in accordance with the agreement, he
approached the Respondent No. 1.

Complainant had given few ‘self’ cheques to the same person and was seeking to
recover the amount covered by those cheques from him. The client of the
Respondent No. 1 introduced him to the Respondent No. 1 and a suit came to be
instituted by the Respondent No. 1 on behalf of the Complainant. The
Complainant was told that the case was posted for written statement of the
defendant and therefore it was necessary for him to appear in the Court on that
day. Subsequently when the Complainant asked about the next date of hearing,
he was told that Respondent No. 1 was also not present when the case was
called out as it was posted for the written statement of the defendant. When the
Complainant made the enquiry he found that on the said date, the Respondent
No. 1 had withdrawn the suit as settled out of Court by filing a memo through
Respondent No. 2 who was his junior. It was also found that the Respondent No.
1 had applied for the refund of half court fee and obtained the same from the
court. But neither the claim amount nor the refund of court fee was received by
the Complainant. Therefore, the Complainant filed a complaint before Karnataka
State Bar Council.

Respondent's Case: Respondent admitted that the Complainant approached

him through one of his clients. He contended that he had filed an IA for
attachment of the defendant's property before judgment. The said property was
none other than the one which the defendant had agreed to sell to the
Respondent's client. The IA was initially rejected. Thereupon the client issued
paper publication that the property was agreed to be sold to him and cautioned
the public from purchasing or in any way dealing with it. Seeing this
publication, the Court allowed the IA for attachment of the property before
 11

judgment. Under the pressure, the defendant sold the property to the
Respondent's client as per the agreement. The Respondent was told by the client
that he was in possession of the cheques belonging to the Complainant and
therefore, the suit filed by the Complainant was not really necessary. Later on
the three persons, viz., the client, Complainant and the defendant in the suit
filed by the Complainant together came to the Respondent No. 1 and instructed
him to withdraw the suit. Relying upon their oral instructions, the Respondent
No. 1 in turn instructed his junior Respondent No. 2 to file the memo, and
accordingly, Respondent No. 2 filed the memo.

The Disciplinary Committee of the State Bar Council went through the records
and formed opinion that the Respondent No. 1 withdrew the case in order to
perfect the title of his client who had purchased the property while the
attachment of the property was in force. Therefore it held that the Respondent
was guilty of misconduct.

The Respondent-Advocate preferred an Appeal before the Bar Council of India

against the order of the Disciplinary Committee of the State Bar Council. The
Bar Council of India upheld the order of the State Bar Council, and against the
order of the Bar Council of India, this appeal was preferred.

The points raised in this Appeal were mainly technical in nature. They were:

1. Whether charge must be framed in disciplinary proceedings before the Bar

Councils?

2. Whether mens rea is a necessary element for professional misconduct?

3. Whether the allegations in such cases must be proved beyond reasonable

doubt?

4. Whether the respondent-advocate can be given benefit of doubt?

5. Whether an advocate bona fide acting upon the oral instructions given to him
by someone purporting to act on behalf of the client guilty of culpable
negligence or does it amount to negligence simpliciter?
 12

In the instant case, the DC of SBC had proceeded to record evidence

immediately after the defence of the respondent-advocate was filed. It had not
framed formal charge. The Supreme Court found that the proceedings before the
Disciplinary Committee being quasi criminal in nature, it was imperative on the
part of the Disciplinary Committee to frame charges. In the absence of the
charges it was very difficult, even nearly impossible for the respondent to defend
his case. Therefore, the proceedings before the DC of SBC were held to be
vitiated for the want of charge.

The Supreme Court remanded the case to the BCI for fresh hearing as per the
procedure. As the matter was subjudiced, the Supreme Court ordered that the
name of the Respondent-Advocate shall not appear in the reports, if any report
was published.
 13

CASE 8

THE BAR COUNCIL OF MAHARASHTRA VS. M.V. DHABOLKAR & ORS.

AIR 1976 SC 242

(V.R. Krishna Iyer, R.S. Sarkaria, A.C. Gupta, and S. Murtaza Fazal Ali, JJ.)

Certain advocates in Bombay used to solicit cases by standing near the gate of
the court complex. They used to rush towards any person who appeared to be a
prospective litigant and tried to snatch the papers from him. Sometimes this
ended in physical wrangle between advocates. In short, this caused a scene in
the court precincts, and thereby the dignity of the legal profession was lowered
in the eyes of public. Therefore, the Bombay High Court brought this to the
notice of the Maharashtra State Bar Council and directed it to take necessary
action in the matter.

Accordingly, the State Bar Council referred the matter of one Shri Kelawala and
15 others to one of its Disciplinary Committees. The Disciplinary Committee of
the State Bar Coucil found them guilty of misconduct and suspended from
practice for a period of three years. The advocates preferred an appeal before the
Bar Council of India and the Disciplinary Committee of Bar Council of India
found them not guilty and absolved them of the misconduct. Against this order,
the State Bar Council preferred this appeal before the Supreme Court.

The Supreme Court held that the cases of different advocates were clubbed
together and tired together. There was a common judgment in these cases.
Thereby there was confusion and the judgment was prejudiced. The Supreme
Court discussed the different cases separately.

The first case was that of Dabholkar, who was a senior prosecutor and an old
man. He was about to retire from his practice. He wanted to dispose of a few
cases which were pending in the courts. He had no intention to accept more
briefs. Moreover, there was no clear evidence against him. Therefore, Supreme
Court was pleased to exonerate him of the charges.

The second case was that of one Shri Bhagtani. Though he reamained ex parte,
as there was a lack of cogent evidence against him, he too was acquitted by the
Supreme Court.
 14

There was some evidence, though not very much reliable, against the third
respondent Shri Talati. It was submitted that the respondent had suffered by
tow long litigations before the two Bar Councils. He was in very poor
circumstances, and therefore, he deserved pardon. The respondent also filed an
unconditional apology for his conduct. Therefore, though Supreme Court upheld
the order of lowers DC, reduced the sentence of suspension.

The fourth respondent Shri Kelawala was a very old man. He was nearly blind.
Though there was some evidence against him, the Supreme Court did not
disturb the verdict of BCI on the basis of an undertaking given by the
respondent that he will not practice in future.

The next two respondents Shri Dixit and Shri Mandalia were also acquitted on
the ground that there was no evidence on record sufficient for their conviction.

The next respondent Doshi argued his case personally. He made out a case of
social service, and therefore he was implicated in the case. He challenged the
procedure followed by the SBC. Supreme Court agreed with the respondent and
acquitted him of misconduct.

The other respondent Shri Raisinghani was 65 years old. Still there was clear
evidence that he was engaged in at least tow fights resulting in torn trousers. He
was an old man and also a refugee from Pakistan, who had left all his property
in Pakistan. Therefore, the court took a sympathetic view towards him and
reduced the sentence.
 15

CASE 9

IN RE VINAY CHANDRA SHARMA

VOL. 22(1) 1995 IBR 118

(Kuldeep Singh, J.S. Verma and P.B. Sawant, JJ.)

The contemner Vinay Chandra Sharma was a senior advocate practicing before
the Allahabad High Court. He was also a member and office bearer of several
legal bodies including the Bar Council of India, of which he was the Chairman at
the material time.

One Shri S.K. Keshote, Judge of the Allahabad High Court made a report to the
Acting Chief Justice of the High Court regarding the behaviour of the contemner
during an argument before him. As per the report, the contemner was
representing in a case which was posted for admission before a division bench
comprising of Shri Keshote and another senior judge. During the hearing,
Keshote, J. asked the contemner under what provision of law had the trial court
passed the impugned order. On this, the contemner got infuriated and started
shouting at the judge. He threatened him saying that no judge can dare ask him
such a question, and he could see that the judge is transferred or impeachment
proceeding to remove him is brought in the Parliament. The contemner also
mentioned that he had done away with many judges like him. In short, the
contemner abused the judge in all ways except abusing him of his mother and
sister.

The report was forwarded by the Acting CJ of the Allahabad HC to the CJ of

India. The CJ of India took a serious note of the incident and constituted a
bench of three judges to hear the case or alternatively ordering inquiry in the
matter. The bench issued notice to the contemner directing him to appear before
it and show cause why action should not be taken against him for contempt of
court.

The contemner appeared before the Court and filed his affidavit with two
applications, one for discharging the Show Cause Notice and the other for taking
action against Keshote J. for committing contempt of his own court.
 16

In his affidavit the contemner alleged that he had not committed any act alleged
against him. On the contrary, the judge himself had told the contemner that the
case filed by him was liable to be dismissed and he would set aside the order of
the trial court in toto. To this the contemner had objected saying that the judge
could not dismiss the case without hearing him and also that the judge could
not set aside that portion of the order of the trial court which was not challenged
before him. This had provoked the judge and he told that he did not opt for
Allahabad. He wanted to be posted at Gujarat or HP. But against his will the CJ
of India had posted him at Allahabad. To this the contemner had asked whether
the judge wanted to create a scene in the court in order to get himself
transferred from Allahabad. The contemner had quoted a previous incident in
which a judge was transferred from Allahabad because he could not establish
proper rapport with the Bar. After this, when the contemner tried to press his
case the judge lost his temper and told that he was from bar and could resort to
goondaism if the need be. He had also dictated the order setting aside the entire
order of the trial court. But the senior judge on the Bench intervened and the
case was transferred to a different bench which passed an order favourable to
the contemner. He contended that he had not committed any contempt of court,
but in fact it was the judge who had committed the contempt of his own court.
The whole Allahabad Bar was witness to this. He submitted that it was the duty
of an advocate to fight his client’s case bravely and fearlessly. If an advocate is
punished for contempt of court because he tried to save his dignity and fight his
client's case bravely, it will have a very bad impact on the whole Bar of India.

The Supreme Court asked the contemner to file another affidavit showing
further facts and directed him to file affidavit of any other person or persons
verifying the facts mentioned by the contemner in his previous affidavit.

The contemner filed another affidavit challenging the very jurisdiction of the
Supreme Court to hear the case of contempt of High Court. He contended that
art. 129 of the constitution gave jurisdiction to the Supreme Court to hear the
cases of its own contempt. High Court was empowered to hear cases of contempt
of itself and the court subordinate to it. He contended that the judge himself
could have taken the matter in his hand. But on the contrary, he had referred
the matter to the Supreme Court through the Acting CJ and had gone to Delhi
to meet “meaningful people” there. This itself showed that the matter was not
straight.
 17

The Supreme Court had the following three questions before it.

1. Whether the Supreme Court had jurisdiction to hear the case of contempt of
a High Court.

2. Whether the application for discharge of Show Cause Notice or in the

alternative, for Inquiry into the matter, filed by the contemner could be
allowed.

3. Whether the contemner was guilty of contempt of Court.

4. What punishment could be imposed on the contemner.

The Supreme Court discussed the law of contempt in detail and held that it had
wide powers to hear the cases of contempt of courts. Being a superior court of
record, it had powers to hear cases of contempt not only of itself, but also of the
courts subordinate to it.

Coming to the second point, there were two different versions of facts placed
before the Supreme Court. On version was that of the judge and the other that
of the contemner. The Court had given an opportunity to the contemner to file
affidavits of other witnesses. This was not utilised by the contemner. Therefore,
the supreme Court had to believe the version of the judge against that of the
contemner. Further, the very way in which the contemner had drafted the
affidavit showed that he had no respect for the judge. The fact that he had
resented to the question put by the judge and told him that a judge was
transferred for not establishing proper rapport with the Bar was not proper
enough. Therefore, there was no question of discharging the show cause notice.

Further, there was no tradition of summoning the judge against whom the
contempt was committed, for inquiry. The procedure in such cases being a
summary procedure, the statement of the judge is sufficient for the purpose. It
is not necessary to cross examine the judge in respect of the facts stated by him
in his report. The contemner's interest is sufficiently safeguarded by other
procedural guarantees, such as framing of proper charge and giving him
opportunity of being heard in his defence. Calling upon the judge for cross
examination would cause further complications. Though the judge himself could
have taken cognizance of the case, he had preferred to refer it to the Supreme
Court in order to comply with the rules of natural justice which say that the
 18

same person cannot be complainant, witness, prosecutor and judge in the same
case.

In view of the above facts there was no doubt that the contemner had committed
contempt of the court as alleged by the judge. The court observed that the
contemner had failed to understand the real scope of his duties as an outspoken
and fearless member of the bar. Barzeness is not outspokenness and arrogance
is not fearlessness. Humility is not servility and politeness is not lack of dignity.

Therefore, the court punished him with simple imprisonment for a period of 6
weeks. The punishment was suspended for a period of 4 years and was to be
activated in case the contemner was convicted for contempt of court within the
said period. The contemner was also suspended from practice for 3 years and in
consequence all the elective and nominated posts held by him in his capacity as
advocate were held to be vacated by him from immediate effect.
 19

CASE 10

SUPREME COURT BAR ASSOCIATION VS. UNION OF INDIA & ANR.

VOL. 25(2) 1998 IBR 137

(S.C. Agarwal, G.N. Ray, A.S. Anand, S.P. Bharucha and S. Rajendra Babu, JJ.)

Shri Vinay Chandra Mishra, advocate of Allahabad High Court and the
Chairman of Bar Council of India was alleged to have committed the contempt of
court by threatening a judge of the Allahabad High Court during the hearing of a
case. The case was heard by a Full Bench of the Supreme Court comprising of
three judges. The Full Bench, after hearing the contemner convicted him of the
offence alleged and sentenced him to undergo simple imprisonment of 6 weeks.
The Bench also suspended him from practice for a period of 3 years. This order
of suspension caused alarm in the legal circle and as a result, the Supreme
Court Bar Association filed this Writ Petition challenging the powers of the
Supreme Court to suspend or otherwise punish an advocate for misconduct. The
main contention of the Petitioner was that it is the exclusive domain of the Bar
Council to punish an advocate for misconduct and the Supreme Court or any
other Court had no original jurisdiction in the matter. The order of the Supreme
Court suspending the advocate for misconduct amounted to excess of
jurisdiction and encroachment upon the jurisdiction of the statutory body, viz.,
the Bar Council.

The above case was heard by a larger bench of the Supreme Court comprising of
five judges, who discussed the jurisdiction of Supreme Court in contempt cases
and the power of the Supreme Court to impose punishment for contempt of
court.

The Court observed that the suspension of an advocate from practice is a

punishment which can be given for misconduct of the advocate. The same can
be given under the Advocates Act. When the Supreme Court is hearing a case of
contempt of Court, the issue of misconduct is not before it. The two are totally
different and distinct aspects. The Court cannot take over the jurisdiction of the
Bar Council to punish an advocate for misconduct under Advocates Act while
exercising its jurisdiction under the Constitution in respect of contempt of court.
 20

The power of Supreme Court is no doubt quite wide, but yet it is not unlimited.
The Court cannot expand it to include the power to determine whether an
advocate is also guilty of professional misconduct and punish him for the same
in the same proceeding. The contempt proceedings are summary proceedings
while the Advocates Act prescribes formal proceedings for hearing the matters of
misconduct. It would be wrong to throw this procedure in air and summarily
decide the matter of misconduct and punish the advocate.

Supreme Court observed that the conduct of Vinay Chandra Mishra was highly
contumacious and even atrocious. It was unpardonable. It is also true that his
act amounted to misconduct. Therefore, he was punished for misconduct by the
Supreme Court. But while doing so, the Supreme Court vested itself with a
jurisdiction when it had none. The proper course for the court would have been
to refer the matter to the Bar Council of India, and if the Bar Council of India
did not take any action against the concerned advocate, the Supreme Court
might have exercised its appellate jurisdiction under section 38 of the Advocates
Act read with art. 142 of the Constitution, and by exercising suo motu powers to
transfer the matter to itself the Supreme Court could have punished the
contemner for misconduct after adopting the proper procedure laid down under
the Advocates Act.

Therefore in the result, the Writ Petition succeeded.

 21

SUMMARY OF CASES

1. In the Matter of D, An Advocate

Facts: 1. The advocate was prosecuted under the Bombay Prohibition Act.
2. He was held guilty by the Magistrate and was sentenced to RI of 1 month
and fine of Rs. 201.
3. Magistrate reported to the High Court that the Advocate misbehaved in
Court during the Proceedings.
4. Bombay High Court appointed a Tribunal to try the case of misconduct
against the Advocate.
Misconduct: 1. Professional misconduct – misbehaviour in the Court.
2. Other Misconduct – Offence under Bombay Prohibition Act.
Punishment: The tribunal held the Advocate guilty of the first charge, because the
Advocate himself admitted it. The tribunal held him not guilty of the second
charge as offence under Baombay Prohibition Act did not involve moral
turpitude.
Appeal: Appeal to Supreme Court – Did not succeed.

2. P.J. Ratnam vs. D. Kanikaram and Others

Facts: 1. In a suit for possession of lands, the Advocate represented the plaintiff.
2. During the First Appeal, the crops of the disputed lands were sold and the
money was deposited in the Court.
3. In Second Appeal the Advocate’s client applied for that money. The
application was allowed.
4. The money was released by the Court through cheque in the name of the
Advocate.
5. The Advocate did not inform the client about the money and
misappropriated it.
Misconduct: Professional Misconduct – Misappropriation of client’s money.
Punishment: Bombay High Court suspended the Advocate from practice for a period of 5
years.
Appeal: Appeal to Supreme Court – Did not succeed.
 22

3. N.B. Mirzan vs. The Disciplinary Committee of Maharashtra State Bar

Council
Facts: 1. Advocate took Rs. 975 from his client’s wife for the purpose of depositing
in Court.
2. He did not deposit the money in Court.
Misconduct: Professional Misconduct – Misappropriation of client’s money.
Punishment: DC of Maharashtra Bar Council debarred the Advocate from practice.
Appeal: Appeal to BCI – BCI upheld the conviction, but reduced the sentence to
suspension for a period of 5 years with a condition that the Advocate should
refund the client’s money within 2 months.
Appeal to SC – SC upheld the conviction of both DCs and the punishment of
BCI.

4. Chandra Shekhar Soni vs. Bar Council of Rajasthan and Others

Facts: 1. Advocate’s client and client’s wife were assaulted and sustain head
injuries.
2. The Doctor who examined them did not find any serious injuries and
referred them to specialist.
3. Advocate advised the client to get favourable report from the specialist by
paying Rs. 300.
4. He took money from the client to bribe the specialist and wrote a letter to
the specialist requesting him to give favourable report to the client.
Misconduct: Professional Misconduct – Taking money to bribe the specialist.
Punishment: DC of Rajasthan SBC suspended the Advocate from practice for a period of 3
years.
Appeal: Appeal to BCI – Did not succeed.
Appeal to SC – SC agreed with conviction of both DCs but found the
sentence too severe for a junior member of the Bar. Therefore, SC reduced
the suspension to 1 year.
 23

5. V.C. Ranga Durai vs. D. Gopalan

Facts: 1. The Advocate was engaged to file 2 cases for recovery of Rs. 15,000 and
Rs. 5,000, respectively.
2. After few days the Advocate told the client that the suits were decreed in
his favour and revovered Rs. 2,555 And Rs. 855 towards fees and
expenses.
3. Later on the client found the suits were never filed, and therefore, there
was no question of decrees.
Misconduct: 1. Professional Misconduct – Negligence in filing suit.
2. Professional Misconduct – Misrepresentation.
Punishment: The DC of the State Bar Council found him guilty.
Appeal: Both the appeals did not succeed.

6. E.M.S. Nambudiripad vs. T. Narayanan Nambiyar

Facts: 1. The former Chief Minister of Kerala delivered a public speech criticising
the judiciary and the judges of India. He said that they favoured rich
people, and poor people did not stand any chance of getting justice.
2. He referred to the theories of Karl Marx and Frederick Engels in his
support.
Charge: Contempt of Court by scandalising the judiciary, because the speech had the
tendency of causing loss of public faith in the judiciary.
Defence: 1. Freedom of speech guaranteed under art. 19 of the Constitution.
2. Fair criticism of judiciary not amounting to contempt of court u/s 4 of the
Contempt of Courts Act, 1971.
Punishment: High Court found the contemnor guilty of the offence charged and imposed a
fine of Rs. 1,000 upon him. In default of fine there would be imprisonment of
1 week. (Majority decision 2:1).
Appeal: Supreme Court upheld the conviction given by HC and observed that
1. Freedom of speech under art. 19 of the Constitution was not an
unrestricted freedom.
2.The criticism was not fair criticism, because it was politically motivated
and the contemnor sought to take advantage by making that statement.
The Supreme Court was, however, pleased to reduce the sentence to a fine of
Rs. 50 and imprisonment of 1 week in default of the fine.
 24

7. In Re An Advocate
Facts: • The advocate filed two suits:
1. For specific performance of an agreement of sale of an immovable
property in favour of a client.
2. For recovery of two bearer cheques issued to the same person by
another client.
Thus, both his clients were plaintiffs and the defendant in both suits was
the same person.
• Later on the Advocate withdrew both the suits on the instructions of the
first client in order to favour him, without the knowledge or consent of the
second client.
Misconduct: Professional Misconduct – Withdrawal of suit without client’s instructions.
Punishment: Karnataka State Bar Council held the Advocate guilty of misconduct.
Appeal: Appeal to BCI did not succeed.
In appeal to SC the contention of the Advocate was that the DC of SBC did
not frame charge in the case. SC agreed with this contention as the trial
before DC was quasi criminal in nature. Therefore, the case was remanded to
the SBC for fresh trial. As the matter was subjudiced, the SC ordered that the
name of the Advocate should not be disclosed.

8. Bar Council of Maharashtra vs. M.V. Dhabolkar and Others

Facts: 1. Few Advocates used to solicit cases by standing near the gate of the
Bombay High Court premises.
2. They used to snatch briefs from the prospective clients. Sometimes they
fought among themselves for files.
3. High Court brought this matter to the notice of Maharashtra State Bar
Council and instructed to take action.
Misconduct: Professional Misconduct – Lowering the reputation of the profession in the eye
of the public.
Punishment: Shri Kelawala and 15 others were found guilty and were suspended for a
period of 3 years by the SBC.
Appeal: Appeal to BCI – Did not succeed.
Appeal to SC – Supreme Court viewed the matter sympathetically and issued
proper orders in different cases.
 25

9. In Re Vinay Chandra Sharma

Facts: 1. The advocate who was the Chairman of BCI had filed a case before the
Allahabad HC.
2. When Hon’ble Shri Keshote, J., asked him under what provision of law the
case was filed, the Advocate abused the judge and threatened him.
3. The matter was referred to the Supreme Court of India.
Charge: 1. Contempt of Court.
2. Professional Misconduct – Misbehaving in the Court.
Punishment: Supreme Court held the contemnor guilty on both counts and simple
imprisonment for a period of 6 months for Contempt of Court (the sentence
was suspended for a period of 4 years and was to be activated if the contemnor
repeated the behaviour). The Advocate was also suspended from practice for 3
years for misconduct.

10. Supreme Court Bar Association vs. Union of India and Others
Facts: • Vinay Chandra Sharma, the Chairman of BCI was tried and punished by
SC for contempt of court and also for professional misconduct.
• SCBA filed this writ petition challenging the authority of SC to punish for
misconduct.
Order: The writ petition was allowed by SC, as the Advocates Act gives the authority
to punish an advocate for misconduct to the Bar Council only and not to the
Supreme Court or any other body.