9911796707
TMI Blog2000 (12) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... guilty of professional misconduct by the Rajasthan State Bar Council and punished with suspension from practice for a period of five years. Shri Anil Shrama, Advocate, was also proceeded against along with Shri D.P. Chadha, Advocate, and he too having been found guilty was reprimanded. An appeal preferred by Shri D.P. Chadha, Advocate, under section 37 of the Advocates Act, 1961 ( the Act ) has not only been dismissed, but the Bar Council of India has also chosen to vary the punishment of the appellant by enhancing the period of suspension from practice to ten years. The Bar Council of India has also directed notice to show-cause against enhancement of punishment to be issued to Shri Anil Sharma, Advocate. The Bar Council of India has further directed proceedings for professional misconduct to be initiated against one Shri Rajesh Jain, Advocate. Shri D.P. Chadha, Advocate, has preferred this appeal under section 38 of the Act. 2. It is not disputed that Upasana Construction (P.) Ltd. had filed a suit for ejectment based on landlord-tenant relationship against the complainant Shri Triyugi Narain Mishra, who was running a school in the tenanted premises wherein about 2,000 stude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.P. Chadha was present in the Court though the defendant was not present when an adjournment was taken from the Court stating that there was possibility of an amicable settlement between the parties whereupon hearing was adjourned to 14-2-1994 for reporting compromise or framing of issues. On 20-11-1993, which was not a date fixed for hearing, Shri Rajesh Jain and Shri Anil Sharma, Advocates appeared in the Court on behalf of the plaintiff and the defendant, respectively, and filed a compromise petition. Shri Anil Sharma filed vakalatnama purportedly on behalf of the complainant. 5. The compromise petition purports to have been signed by the parties as also by Shri Rajesh Jain, Advocate, on behalf of the plaintiff and Shri Anil Sharma, Advocate on behalf of the defendant. The compromise petition is accompanied by another document purporting to be a receipt executed by the complainant acknowledging receipt of an amount of Rs. 5 lakhs by way of damages for the loss of school building standing on the premises. The receipt is typed, but the date 20-11-1993 is written in hand. A revenue stamp of 20 p. is fixed on the receipt on a side of the paper and at a place where ordinarily t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration. The trial court suspected the conduct of the counsel and passed a detailed order directing personal presence of the defendant to be secured before the Court. The trial court also directed a notice to be issued to the defendant for his personal appearance on the next date of hearing before passing any order on the compromise petition. 8. Shri Rajesh Jain, Advocate, again filed an appeal against the order dated 8-4-1994. Again, the complainant was arrayed as a respondent in the cause title through Shri Anil Sharma, Advocate . An application was moved before the Appellate Court seeking a shorter date of hearing as defendant was likely to go out. On 21-8-1994, the Appellate Court directed the record of the trial court to be requisitioned. Shri Anil Sharma, Advocate, appeared in the Appellate Court without filing any vakalatnama from the complainant. He conceded to the appeal being allowed and personal appearance of the defendant not being insisted upon for the purpose of recording the compromise. The Appellate Court was apparently oblivious of the legal position that such a miscellaneous appeal was not maintainable under any provision of law. 9. Certified copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petent to sign and verify the compromise whereon the Court should act. 13. Amongst other witnesses, the complainant and the three counsels have all been examined by the State Bar Council and cross-examined by the parties to the disciplinary proceedings. The defence raised by the appellant has been discarded by the State Bar Council as well as by the Bar Council of India in their orders. Both the authorities have dealt extensively with the improbabilities of the defence and assigned detailed reasons in support of the findings arrived at by them. Both the authorities have found the charge against the appellant proved to the hilt. The statement of the complainant has been believed that he had never entered into any compromise and he did not even have knowledge of it. His statement that Shri D.P. Chadha, the appellant, had obtained blank paper and blank vakalatnama signed by him and the same have been utilised for the purpose of fabricating the compromise and appointing Shri Anil Sharma, Advocate has also been believed. Here it may be noticed that Shri D.P. Chadha had denied on oath having obtained any blank paper or vakalatnama from Shri Triyugi Narain Mishra. However, while cross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... students studying in the school being thrown on the road. 14. We have heard the learned counsels for the parties at length. We have also gone through the evidence and the relevant documents available on record of the Bar Council. We are of the opinion that the State Bar Council as well as the Bar Council of India have correctly arrived at the findings of the fact, and we too find ourselves entirely in agreement with the findings so arrived at. 15. In the very nature of things, there was nothing like emergency, not even an urgency for securing verification of compromise and passing of a decree in terms thereof. Heavens were not going to fall if the recording of the compromise was delayed a little and the defendant was personally produced in the Court who was certainly not available in Jaipur - being away in the State of U.P. contesting an election. The counsels for the parties were replaced apparently for no reason. The trial court entertained doubts about the genuineness of the compromise and, therefore, directed personal appearance of the parties for verification of the compromise. The counsel appearing in the case made all possible efforts at avoiding compliance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Court, in order to be satisfied whether the compromise was genuine and voluntarily entered into by the defendant, the trial Court had felt the need of parties appearing in person before the Court and verifying the compromise. In the facts and circumstances of the case, the move of the counsel resisting compliance with the direction of the Court was nothing short of being sinister. The learned Additional District Judge who allowed the appeal preferred by Shri Rajesh Jain unwittingly fell into trap. It was expected of the learned Additional District Judge, who must have been senior judicial officer, to have seen that he was allowing an appeal which was not even maintainable. But for his order, the learned Judge of the trial court would not have taken on record the compromise and passed the decree in terms thereof, unless the parties had personally appeared before him. In our opinion, the appellant Shri D.P. Chadha was not right in resisting the order of the trial court requiring personal appearance of the defendant for verifying the compromise. This resistance speaks volumes of a sinister design working in the minds of the guilty advocates. Even during the course of these proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof cannot be doubted merely for asking. In State of Maharashtra v. Ramdas Shrinivas Nayak AIR 1982 SC 1249, this Court has held : ". . . the Judges record was conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else. The court could not launch into inquiry as to what transpired in the High Court. The court is bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. It cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise the privilege of the profession, would amount to misconduct attracting the wrath of disciplinary jurisdiction. In the Bar Council of Maharashtra v. M.V. Dabholkar [1976] 2 SCC 291, Krishna Iyer, J., said that the vital role of the lawyer depends upon his probity and professional life style. The central function of the legal profession is to promote the administration of justice. As monopoly to legal profession has been statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of confidence of the community in him as a vehicle of justice - social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation. Cannons of conduct cannot be crystallised into rigid rules but felt by the collective conscience of the practitioners as right. Law is no trade, briefs no merchandise . Foreseeing the role which the legal profession has to play in shaping the society and building the nation, Krishna Iyer, J., goes on to say "... For the practice of Law which expanding activist horizons, professional ethics cannot be contained in a Bar Council rule nor in traditional cant in the books but in new can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfidence in the counsel in case after case and day after day. A client dissatisfied with his counsel may change him, but the same is not with the Court. And so the bondage [bond] of trust between the court and the counsel admits of no breaking. 23. In George Firier Graham v. Attorney General, Fiji AIR 1936 PC 224, the Privy Council has approved the following definition of professional misconduct given by Darling , J., In Re A solicitor ex parte the law society [1912] 1 KB 302 "If it is shown that an advocate in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to say that he is guilty of professional misconduct." 24. It has been a saying as old as the profession itself that the court and counsel are two wheels of the chariot of justice. In adversarial system - it will be more appropriate to say while the Judge holds the reigns, the two opponent counsels are the wheels of the chariot. While the direction of the movement is controlled by the Judge holding the reigns, the movement itself is facilitated by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perpetual retainer on behalf of truth and justice and there is no Crown or other licence which in any case or for any party or purpose, can discharge him from that primary and paramount retainer." 28. We are aware that a charge of misconduct is a serious matter for a practicing advocate. A verdict of guilt of professional or other misconduct may result in reprimanding the advocate, suspending the advocate from practice for such period as may be deemed fit or even removing the name of the advocate from the roll of advocates which would cost the counsel his career. Therefore, an allegation of misconduct has to be proved to the hilt. The evidence adduced should enable a finding being recorded without any element of reasonable doubt. In the present case, both the State Bar Council and the Bar Council of India have arrived at, on proper appreciation of evidence, a finding of professional misconduct having been committed by the appellant. No misreading or non-reading of the evidence has been pointed out. The involvement of the appellant in creating a situation resulting into recording of a false and fabricated compromise, apparently detrimental to the interest of his client, is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to dislodge the finding of professional misconduct as arrived at by the State Bar Council and the Bar Council of India. 31. It has been lastly contended by the learned counsel for the appellant that the Bar Council of India was not justified in enhancing the punish-ment by increasing the period of suspension from practice from 5 years to 10 years. It is submitted that the order enhancing the punishment to the prejudice of the appellant is vitiated by non-compliance with principles of natural justice and also for having been passed without affording the appellant a reasonable opportunity of being heard. 32. Section 37 of the Advocates Act, 1961, provides as under : Appeal to Bar Council of India. (1) Any person aggrieved by an order of the Disciplinary Committee of a State Bar Council made under section 35 or the Advocate General of the State may, within sixty days of the date of communication of the order to him, prefer an appeal to the Bar Council of India. (2) Every such appeal shall be heard by the Disciplinary Committee of the Bar Council of India which may pass such order (including an order varying the punishment awarded by the Disciplinary Committee of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under appeal : "While hearing the matter finally, parties were also heard as to the enhancement of sentence." 35. The appellant himself was not present on the date of hearing. He had prayed for an adjournment on the ground of his sickness which was refused. The counsel for the appellant was heard in appeal. It would have been better if the Bar Council of India having heard the appeal, would have first placed its opinion on record that the findings arrived at by the State Bar Council against the appellant were being upheld by it then the appellant should have been issued a reasonable notice calling upon him to show cause why the punishment imposed by the State Bar Council be not enhanced. After giving him an opportunity of filing a reply, and then hearing him the Bar Council could have, for reasons to be placed on record, enhanced the punishment. Nothing such was done. The exercise by the Bar Council of India of power to vary the sentence to the prejudice of the appellant is vitiated in the present case for not giving the appellant reasonable opportunity of being heard. The appellant is about 60 years of age. The misconduct alleged relates to the year 1993. The order of the St ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
