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TMI Blog1960 (5) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... against the said Nilagiri; that having been unsuccessful in the criminal case, Pareswar brought a suit for declaration of title, engaging another Advocate to represent him, in respect of the land, which was the subject matter of the said criminal proceedings and in the said suit Pareswar succeeded. At the trial stage of the suit, Mr. Nanda was not engaged by either party. Pareswar's brother Nilagiri filed an appeal against the judgment and decree in the said suit through Mr. Nanda who is Nilagiri's Advocate, appeared against his former client Pareswar in the said appeal. It was at the instance of the said former client Pareswar that the present disciplinary proceedings had been initiated on the allegation that Mr. Nanda had accepted engagement in the said appeal by Nilagiri with a view to cause loss to Pareswar and further that Mr, Nanda had utilised his knowledge of Pareswar's case in the earlier original proceedings, based on the documents and papers used and confidential instructions received by Mr. Nanda from his former client Pareswar. The defence taken by Mr. Nanda to the charge against him is that, while admitting that in Section 107 Criminal proceedings h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian Bar Councils Act; and each case is decided on its merits (or de-merits -- as the case may be) on general principles. In the High Courts where rules relating to professional conduct have been framed, the rules, though, in some cases, differently worded, are, in spirit the same. Keeping in view this aspect, it will appear that many of the decisions of the High Courts where no rules appear to have been framed, have no application in the present context. 4. This leads us to the consideration of the case on merits, in the light of the rules relating to professional conduct applicable to an Advocate of this Court. The background in which Mr. Nanda was engaged by his former client Parcswar and subsequently by his opponent Nilagiri is this: It appears that there was a partition between two branches of the family during the life-time of the father Driba Mahakur under which there was certain arrangement by which certain lands were allotted to respective branches of the family, namely that Schedule B was allotted to Pareswar and his son Tikamani jointly; Schedule C to Nilagiri and Schedule D to Jogeswar. Apparently the trouble among the step-brothers did not end there. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of the matter to the District Judge, Bolangir-Kalahandi, Bolangir, requesting him to enquire into the matter and forward the result of enquiry to the Court for necessary action. In the proceedings before the learned District Judge, evidence was adduced on both sides, on the basis of which the learned District Judge gave his finding that the materials which had been given to Mr. Nanda in connection with the earlier criminal proceedings can in no way be said to give any information, confidential and within the knowledge of Pareswar alone, to Mr. Nanda, and accordingly the District Judge found that the charge against Mr. Nanda had no substance. The learned District Judge gave his report on 7-11-1956. Thereafter the matter was pursued by the High Court under Section 10 of the Indian Bar Councils Act and the matter was referred to the Bar Council for enquiry on 12-12-1956. The finding of the Bar Council was given on 18-11-1957 as contained in their report, where it was found that there was no loss or prejudice caused to the former client Pareswar by the appearance of Mr. Nunda for the opposite party Nilagiri at the stage of the appeal; and accordingly the Bar Council's vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce for the opposite party Nilagiri in the appeal Court, where Mr. Nanda is alleged to have made use of the confidential instructions given to him of which Mr. Nanda is alleged to have taken undue advantage successfully, in order to have the decree of the lower court set aside, the result of the litigation could have been otherwise. The principle underlying the ban, prohibiting an Advocate from appearing for the opposite party against his former client, is that there is the likelihood or possibility of misuse of the instructions given to him by his former client. It is not a question whether the misuse has been actually made; the mere possibility of such misuse in a matter, which is connected with the previous litigation, is sufficient. What weighed with us, in this particular case, is the position that proceedings under Section 145 were initially contemplated and Section 107 Criminal proceedings were ultimately taken recourse to. In either case the question of possession of the land in dispute is involved and it is this possession of the very same plots of land which became the subject matter of the subsequent civil litigation. In both the criminal and civil cases possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions were obtained in other proceedings, which arose out of a right claimed in the proceedings under consideration, gives only a professional right to the party to engage the Vakil and if he is prepared to engage him, the Vakil has a duty to appear for him and not to appear on the other side. This case was decided in the context of Rule 277 of Madras High Court Rules (Civil), on the basis of which it was argued that the rule did not cast upon the respondent the duty of offering an engagement to the Advocate in question and giving an opportunity to adopt or reject the engagement. On that point, the Madras High Court expressed the view that if the rule did not cover it then the Court has to fall back upon the general principles; that where the party wants to restrain a Vakil from appearing, he must show that he has made reasonable attempt to secure his services, as otherwise the result will be that a party who engages a Vaki] in some collateral proceedings can successfully prevent his appearing without offering an engagement to him; if the petitioner thought that the information which he gave was material to his interests it was his duty to have engaged the Advocate in question. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, which had not already become public property when he accepted the brief for the opposite party; further the counsel did not obtain his own discharge; the proceedings in which he was engaged by the party had terminated and the party had refused to avail himself of the services of the counsel; in those circumstances, the counsel was not guilty of professional misconduct in accepting the brief of the opposite party. It appears from the facts of that case, that the Advocate gave a notice to his previous client to retain his services who declined to do so. It was conclusively established that the Advocate offered his services to his former client and that he was not prepared to accept brief of the opposite party until his former client refused to retain him. This case is clearly distinguishable from the present case, where there is no evidence of even a gesture, on the part of Mr. Nanda to offer his services to his former client before taking up the case of the opposite party. This case does not support Mr. Nanda's contention. Mr. L. K. Das Gupta, learned counsel for Mr. Nanda, relied on a decision of the Allahabad High Court in Saharanpur Grain Chamber Ltd. v. Maharaj Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r side; in order to prevent counsel appearing for the other party, he must have a definite retainer with a fee paid or he must have such confidential information from one of the parties as would make it improper for him to appear for the other party. Thus, in another Allahabad case in the context of a letter, --written by one Mr. H to a Barrister who later on appeared for his wife (Mrs. H), engaging him in the case and giving him confidential information, as alleged, which might prejudice Mr. H if the Barrister continued to act for Mrs. H in her petition for dissolution of marriage on the ground of adultery, it was held that there was nothing in the letter alluding to the husband's defence upon charge of adultery and that he merely referred in the letter to complaints that he has against his wife and he desired to take action so that he might obtain custody of the children; that it is not sufficient if a client writes a letter in which there is nothing Which will prejudice him, if that particular Advocate appears for the other side; that such a letter does not definitely engage counsel's services; there is nothing to prevent that particular Advocate from appearing for the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary action was justified in the absence of rules relating to professional conduct prohibiting such appearance for his former client. (A, a pleader v. Judges of the High Court of Madras, AIR 1930 PC 144; In re Qurban Ali Khan v. G., a pleader, AIR 1338 Pat 28). 8. We are thus, ultimately, to consider this case on the interpretation of Rule 15 of the Rules relating to the professional conduct of Advocates quoted above. In this context, we shall also, tor comparatives study, examine the corresponding rules of the other High Courts, so tar available to us. The rule ot the Patna High Court corresponding to Rule 15 of this Court is exactly in the same language being Rule 15 thereof. The corresponding Allahabad Rule is Rule 5 which, though in different form, is substantially the same and is quoted as follows: It is not professional misconduct where in the absence of any instructions from the first client an Advocate appears for the opposite party in a subsequent proceeding which is not directly connected with or in continuance of the first proceeding. Briefs may not be accepted in execution proceedings or in appeals following engagement in the suit itself, or in Sessions Court foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mely that it is both enabling and disabling at the same time -- enabling in respect of some and disabling in respect of others. Thus there is an apparent failure in Mr. Dasgupta's argument that Rule 15 is only enabling rule. The express or implied meaning of Rule 15, when analysed, appears to be this :-- (a) If a former client so consents, an Advocate may act, appear or advise for the opposite party in a subsequent or other legal proceeding irrespective of the position whether or not directly connected; (b) if the former client does not so consent, then the Advocate may act, appear or advise in subsequent or other proceeding not directly connected; but the Advocate cannot so act, appear etc. in a subsequent or other proceeding if directly concerned with or in continuation of the first proceeding. This our interpretation of Rule 15, is further supported by Rule 16, which provides that these Rules, relating to professional conduct of Advocates, are not exhaustive of the subject of professional etiquette even as regards the specific matters with which they deal. 9. Thus, from a plain reading of Rule 15 we are satisfied that Mr. Nanda is guilty of breach of this Rule. On certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate cannot be all written law. The fundamental idea is that an Advocate must so behave that his conduct may not be questioned in any manner. The Bar Council Rules are rules of conscience, which can only be illustrative and not exhaustive as our Rule 16 clearly states. The ideals of professional conduct, as contained in unwritten moral code, based on conventions and long established tradition of the Bar, have an equally binding force as written law. These essentially are rules which inner conscience dictates from within. Thus, these rules, relating to professional conduct cannot necessarily be wholly written. This is the inner implication of our Rule 16 which provides that these rules are not exhaustive. It is, presumably, from this conception that some High Courts have not so far framed rules relating to professional conduct under Section 15(a) of the Bar Councils Act; they have thought fit to leave such cases under disciplinary jurisdiction to be decided by general principles of unwritten moral code of professional conduct, unwritten rules of conscience, conventions and traditions of the Bar, as a professional community with public ideals. 11. The conventions,-- having th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dency to prejudice his former client which is sufficient. In the present case, there can be no doubt that, -- when Mr. Nanda had advised and appeared in first proceeding ending in Section 107 Criminal Proceedings as aforesaid, -- Mr. Nanda must have obtained certain instructions from his former client on the basis of which he initially advised or contemplated proceedings under Section 145 Cr. P. C. and ultimately instituted proceedings under Section 107 Cr. P. C. with the result as aforesaid. The nature of the said criminal proceedings, as is well known, relates to possession of land in dispute. Such disputes are directly connected with the subsequent civil litigations that are to follow. In most cases, as we know, these earlier proceedings, -- either under Section 145 or 107 Cr. P. C. --are merely prelude to the subsequent civil litigation. In fact the earlier 145 or 107 Criminal Proceedings are often made use of as device to create evidence for the civil litigation that ensued. Thus viewed, there can be no doubt that in the present case, the subsequent civil litigation was directly connected with or in continuation of the first proceeding under Section 107 Criminal Procedure C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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