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Varigonda Kameswaramma Vs. Duvvuri Viswanadham - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Case NumberReferred Case No. 9 of 1963
Reported inAIR1964AP158
ActsBar Councils Act, 1926 - Sections 10 to 13 and 15; Andhra Pradesh Bar Council Rules - Rules 30 and 31; Advocates Act, 1961 - Sections 3, 9 and 50
AppellantVarigonda Kameswaramma
RespondentDuvvuri Viswanadham
Appellant AdvocateM. Ranga Raju, Adv. for ;A. Gangadhara Rao and ;A. Venkatapathi Raju, Advs.
Respondent AdvocateJ.V. Suryanarayana, Adv. for ;D. Narasaraju, Adv. General;G. Ramanujulu Naidu, Adv.
.....sections 3, 9, and 50 and chapter 5 of advocates act, 1961 and sections 10 to 13 and 15 of bar council act, 1926 - petition filed against a legal practitioner - it is alleged that he adopts corrupt practices in profession - court found him guilty on ground of dealings with clients - his act in contravention of provisions of act - owing to inexperience and tenderness of age high court awarded light punishment of reprimand. - - after due enquiry, he came to the conclusion that charges 2 to 4 stood well substantiated. while he owes a duty to the court to render due assistance in the administration of justice, he has also a duty to his client to be fair and just in his dealings with him and to efficiently represent his cause. ..this position oftrusteeship in respect of moneys of the..........and non-return of the records. rule 32 of the bar council rules provides that a copy of the client's account shall be furnished on demand, provided the necessary copying charges are paid. it would appear from the notices that the complainant was demanding the statement of account showing the details how the moneys given by her were spent out, the respondent was telling her in the notices that the amounts spent are mentioned in his accounts in detail and that she can come to his office and see. in another notice, he stated that he was prepared to show the account of credit and debit if she comes to his office and that if she wants a copy, she shall have to pay copying charges. he did not however specify what were the copying charges. unless he did so, it was not possible for the.....

Kumarayya, J.

1. This is a proceeding under Section 10 of the Indian Bar councils Act, 1925. It has been started on a complaint made by V. Kameswaramma, alleging professional misconduct against Sri Duvvuri Viswanadam of Kotnagudem, an advocate practising at Ramavaram. This complaint was referred for enquiry to the District Judge. Khammam, after consultation with the Bar Council. The learned District Judge after due enquiry, submitted his report with a finding that the respondent is guilty of professional misconduct, in his opinion, in the circumstances of the case he ought to be sternly dealt with.

2. The facts leading to the complaint may be shortly stated. The complainant let out her Malgi in Kotnaguaem to one Ambaji and his son, satyanarayana. This soon involved her into difficulties, as the tenants would not pay her the stipulated rent and filed a petition No. 3 of 1957 before the Rent Controller, Kothaguoem, for fixation or fair rent. They then allowed themselves to run into arrears. The complainant would not tolerate the same. She filed a petition No. 17/59 before the Rent controller for eviction. In these two proceedings, the advocate appointed by the complainant was one Sri Malladi venkataramayya. Sri U. Viswanadnam (the respondent herein), was his junior. As the senior advocate underwent an operation in Kothagudem hospital, these cases were wholly entrusted to the respondent, thereafter on his advice, two turner suits O.S. nOS. 39/58 and 2/60 for recovery of arrears of rent, were instituted in the Munsif-Magistrate's Court, Ramavaram. According to the complainant, the stipulated legal fee for all the four proceedings was Rs. 200/-. She paid Rs. 100/- in all, towards the same. She paid besides, a sum of Rs. 500/- towards expenses of litigation.

The tenants at long last deposited in the Court a sum of Rs. 1335/- towards her claim. The respondent withdrew the said amount partly on 23-3-1960 and the rest on 24-3-1960, without the authority of the complainant, on his own application. Having done so, he was not prepared to pay the entire amount to the complainant; but sought to appropriate for himself a sum of Rs. 200/-towards his fee and pay the balance, to which course the complainant was not agreeable. He then opened a savings. Bank account in his own name and deposited a sum of Rs. 1135/-. He wrote a letter, EX. B-2 dated 6-4-1960, to the complainant, informing her about the said withdrawal and also the deposit made in the Savings Bank and told her that if she wished to take the said money, he would withdraw the same on one week's notice and pay it to her.

As soon as the complainant received the notice she took exception to the conduct of the advocate in withdrawing the amount without informing her earlier and also in appropriating any sum towards his fees when the cases were still pending. She categorically stated that she had already paid him Rs. 100/-, and not Rs. 80/-, towards his fee and contended that she had agreed to pay the balance of Rs. 100/- only in case she won, she called upon him to refund the entire amount withdrawn by him and obtain receipt therefor. As regards the expenses, she stated that a sum of Rs. 500/- was given to him for that specific purpose and that he was liable to render account for the same. She asked him to send the statement of account.

In a subsequent letter, Ex. B-3 dated 21-4-1960, the respondent admitted that he hag received Rs. 100/- towards legal fee, but stated that he had to pay towards stamp and other expenses a sum of Rs. 20/- and therefore credit was given only for Rs. 80/-. His contention still was that a sum of Rs. 280/- was the agreed fee and that the complainant was entitled only to Rs. 1135/- which she could receive at his office on a week's prior notice, he denied that a sum as large as Rs. 500/- was deposited with him towards expenses and also the fact that except one suit, any other suit was pending.

3. This attitude on the part of the advocate implied the complainant to engage an advocate, Sri B. Lakshmi Narayana, to take up correspondence. The said advocate issued a notice, Ex. B-25, dated 2-6-1960. The respondent sent his reply, Ex. B-5 dated 4-6-1960. The matters did not improve. After some further uneventful correspondence the complainant lodged the present complaint on 10-9-1960.

4. The respondent filed a counter on 7-11-1960, denying the allegations against him. His case was that he withdraw the amount not on his own initiative but on the clear instructions of the complainant, who wanted to deposit the same in the State Bank of Hyderabad at Kothagudem. As a sum of Rs. 200/- was due to him towards his fee, he offered to pay the balance of Rs. 1135/- which she refused to accept. She was prepared to take only the full amount and refused to take any amount less than Rs. 1335/-. As a result, he had to deposit thebalance in Savings Bank Account and give a notice in writing to her. His contention therefore, is that if shedid not get any amount she has only to blame herself.He was in no way guilty of any professional misconduct in appropriating part of the amount towards fee legally due to him. Besides, he was always ready and willing to render account for the amounts deposited towards expenses with him which were not more than Rs. 340/-, including Rs. 100/- paid towards his fee.

5. The District Judge, Khammam, framed the following four charges:

1. That he was paid Rs. 500/- as expenses andRs. 100/- towards his fees at different times by theComplainant

2. That he wilfully and without informing the complainant withdrew Rs. 1335/- from the Munsif's court, Ramavaram, contrary to Rules 162 and 167 of the civilRules of Practice;

3. When the complainant came to Know after a long time of withdrawal of the said amount by him and demanded payment of the amount to her, he refused to pay the same without deducting further amount of Rs. 200/-towards his fees, to which course the complainant did not agree;

4. In spite of several notices by the complainant, he falled to-

(i) pay the said sum of Rs. 1335/- to the complainant;

(ii) return the suit records in U.S. no. 39/58 and O.S.No. Z/60 to her; and

(iii) furnish account for the expenditure of Rs. 500/-said to have been paid to him by the complainant.

After due enquiry, he came to the conclusion that charges 2 to 4 stood well substantiated. He, therefore reported that the respondent was guilty of professional misconductfor the several acts enumerated in the said charges.

6. Before going into merits, It may be necessary toconsider whether the advent of the Advocates Act, 1961, which received the assent of the President on 19-5-1961,when the enquiry was pending, has in any way affected thejurisdiction of this Court under Section 10 of the Indian Bar Councils Act, 1926. It is true that Sub-sections (1) and (2) of Section 9 of the said Act, which occur in Chapter II, provide for constitution of Disciplinary committees by a State Bar Council and the Bar Council of India respectively. It is also true that Section 35 of the same Act makes a provision analogous to Section 10(2) of the Indian Bar Councils Act, 1926, and vests now in state Bar Council power to refer matters of professional or other misconduct of an advocate to its Disciplinary committee for disposal and Section 37 provides for an appeal from the orders of Disciplinary committee of a state Bar Council to the Bar Council of India. But it is significant to note that all the provisions of the AdvocatesAct, 1961, did not come into force immediately on its publication in the Gazette. Sub-section (3) of Section 1 in fact provides that:--

'It shall come into force on such date as the centralGovernment may, by notification in the Official Gazette, appoint, and different dates may be appointed for differentprovisions of the Act.'

Section 50 in this behalf further provides that:--

Section 50. '(1) On the date on which a State Bar Council is constituted under this Act, the provisions or Sections 3 - 7 (inclusive), Sub-sections (1), (2) and (3) of Section 9, Section 15, and Section 20 of Indian Bar councils Act, 1926, shall stand repealed in the territory for which the state Bar Council is constituted.

2 (a), (b), (c), and (d) x x x x x

3 (a) and (b) x x x x x x x x x (c) Section 13 of the Indian Bar Councils Act, 1926, and so much of Sections 8 and 15 of that Act as confer on legal practitioners the right to practise in any court or before any authority or person;

(d) xxxxxxxxx

(e) The provisions of the Letters Patent of any High Court and of any other law conferring on legal practitioners the rights to practise in any Court or before any authority or person.

(5) When the whole of this Act has come into force-

(a) the remaining provisions of the Acts referred to in this section which do not stand repealed by virtue or any of the foregoing provisions of this section (except Sections 1, 3 and 36) of the Legal Practitioners Act, 1879 shall stand repeated;

(b) the enactments specified in the Schedule shall stand repealed to the extent mentioned herein.'

It is manifest, therefore, that notwithstanding the constitution of the state Bar council and its Disciplinary Committee, the provisions of Sections 10 -13 of the Indian Bar Councils Act, 1926, and the provisions relating to the Letters Patent of the High Court in so far as they relate to suspension, removal or dismissal of legal practitioners do not stand repealed until the provisions of Chapter V of the Advocates Act, 1961, have been enforced under a notification by the Central Government in the Official Gazette. Admittedly no such notification has yet been published. The question of jurisdiction, therefore, cannot possibly arise.

7. Then we proceed to consider the merits of the case. One of the charges against the respondent is that without previously informing the complainant and without obtaining her consent, he withdrew a sum of Rs. 1335/-from the District Munsifs Court, Ramavaram, on his own applications. The learned District Judge on the evidence adduced found this charge against the respondent. The material on record does warrant such a finding, we, therefore, accept this finding.

8. The next charge against him is that he refused to pay the full amount for no Justifying ground and deposited the amount after a long delay in the Court. It is common ground that the respondent was not prepared to pay the entire sum and in spite of his client's insistence that she should be paid In full, he would not swerve from his determination. It is indisputable that at the time when the amount was drawn, an the cases were not disposed of. Even according to the admission of the respondent, contained in one of his own notices, at least one case was still pending, nevertheless, he was insistent on the recovery of his full fee and in fact, had appropriated for himself a sum of Rs. 200/- immediately after withdrawing the amount from the court.

It would appear from the record that he withdrew a sum of Rs. 1335/- on two dates, i.e., 23-3-1960 and 24-3-1960 and when he opened a Savings Bank account for the said sum, he deposited only Rs. 1135/- in his own name on 6-4-1960. Even this amount did not remain with the Bank till the account was finally closed on13-9-1960, for there were withdrawals by him of substantial amounts on two accasions in between. Thereafter on 16-9-1960, he made an application Ex. B-12, to the District Munsif, Ramavaram, requesting that he may beallowed to deposit a sum of Rs. 1135/- in the Court as the plaintiff had refused to receive back the amount drawnby him. It appears from the record that no amount was in fact deposited in that court. Long thereafter, i. e., on 5-7-1961, he appears to have sent a total sum of Rs. 1123-23 nP. under two money orders for Rs. 600/- and 520-23, to the complainant, having deducted the M. O. commission and other expenses. The complainant as was expected refused to receive the same. Then on 29-7-1961, he deposited the said amount in the District Judge's Court of Khammam. It is thus clear that the whole amount lay with him for an unusually long time. As the Dist. judge has remarked, it was deposited in the court after a lapse of one year and four days.

9. The simple point for determination, therefore, isapart from the fact how he came by the amount, i.e.,with or without the instructions of his client, whether theadvocate could legitimately appropriate the sum of Rs.200/- and keep the balance with him.

10. A legal practitioner is not a mere lawyer, he is also a moral agent. His position is most unenviable. He owes three-fold duty, aS a member of the honourable profession entitled to a privileged status, he is subject to onerous duties attached thereto. He has to maintainthe highest traditions of the Bar. This demands from him on exacting standard of moral and ethical code. While he owes a duty to the Court to render due assistance in the administration of justice, he has also a duty to his client to be fair and just in his dealings with him and to efficiently represent his cause. His relationship to his client being fiduciary in nature, he owes further duty not to act in a manner as to prove himself in any wise unworthy of the trust reposed in him. He is required by all the traditions or the profession to conduct himself in a way as not to allow scope for reasonable suspicion that he has exploited his position to his personal advantage or to the detriment of his client. Certainly he has to maintain that high standard of duty towards his client without any diminution. Any departure which may be reasonably regarded as dishonourable to the high position ofa lawyer would expose him to the indictment for professional misconduct. Of course, the extent of punishment would vary with the nature and gravity of the misconduct proved.

It is apt to recall at this stage the observations of the Supreme Court reiterated in 'M' an advocate, in re: : 1957CriLJ300 . They read thus:

'The ...........Court, in dealing with cases of professional misconduct is 'not concerned with ordinary legal rights, but with the special and rigid rules of professional conduct expected of and applied to a specially priveleged class of persons who, because of their privileged status are subject to certain disabilities which do not attach to other men and which do not attach even to them in a non-professional character, he (a legal practitioner) is bound to conduct himself in a manner befitting the high and honourable profession to whose privileges he has so long been admitted, and if he departs from the high standards which that profession has set for itself and demands of him in professional matters, he is liable to disciplinary action.'

11. In the instant case it has been proved that the respondent withdrew the amounts without the previousconsent or authority of his client and then he did notoffer to pay the entire amount to her put only the balancethat was left after deducting his fees, though an the casesin which he was engaged and towards which the feeswere alleged to be due had not been disposed of, thisconduct of his, to say the least, is not in conformity withthe rules by which he is governed. Rule 30 of the AndhraPradesh Bar Council Rules reads thus:

'Where moneys are received from or on account of a client, the entries in the accounts shall contain a reference as to whether the amounts have been received for fees or out-fees, and during the course of the proceedings no advocate shall, except with the consent in writing of the client concerned, be at liberty to divert any portion of we out-fees towards fees.'

Of course under Rule 31(ii), Sub-clauses (a) and (b), it is open to lawyer alter the termination of the proceeding to appropriate towards settled fee due to him out of the out-fees that have come into his hands in that proceeding and it the fee was not settled, he shall be entitled to deduct the legal fee according to the rules in force. But it is common ground that the proceedings did not come to termination at the time and the client had not given her consent in writing so that he could appropriate towards his fees any part of the out-fees which have come into his hands. It is manifest that the said act of the advocate amounts to a candid breach of the above rule.

A Full Bench of this court in Butchi Rao, In re: AIR 1962 Andh Pra 1 (FB) had to consider the question whether a pleader who withdraws money from Court on behalf of his client can legitimately appropriate any amount towards his fee without his client's consent, that was a case where the pleader had withdrawn certain amount from the Court, had appropriated the same without informing the client and did not pay back till after the matter was placed before the authorities. The learned Judges cited with approval the following observations of the Orissa High Court in The State v. Nrusingla Naik, : AIR1955Ori102 (SB):

'Both according to the law in England and the law here, it is clear that tho pleader is not entitled to appropriate, use, or pay himself moneys which he holds in lien because the Legislature enables the pleader to sue for his fees.'

and observed further thus:

'We would wish to add that unless the client has expressly instructed the pleader to appropriate towards his fees the moneys cannot be diverted at the will of the pleader for the reason that for services rendered by him or to be rendered by him thereafter he has to be compensated by way of fees'.

Reference in this context was made to Rule 30 of the Andhra Pradesh Bar Council Rules as a salutary rule to be observed by every practitioner. In : 1957CriLJ300 , the Supreme Court observed thus:

'The high standards of the profession demand that when the moneys of the client come into the possession of an Agent or an Advocate, otherwise than as ear-marked fees, he has to treat himself as in the position of trustee for the client in respect of the said moneys. Even if he has a lien on such moneys, it would be improper for him to detain, i.e., to appropriate the same towards his fees without the consent, express or implied, of his client or without an order of the Court..........This position oftrusteeship in respect of moneys of the client in hishands is all the greater where the moneys represent the unspent balance of what was given for a specific purpose, such as for payment of printing charges (as in the instant case). On any such balance it is well settled that he has lien either under the common law or by statute.'

12. It is clear, therefore, that apart from the fact that the respondent could not legitimately withdraw the money from the Court save with the consent ot his client, the very fact that he appropriated the sum of Rs. 200/-towards his fee in contravention of Rule 30 by itself is sufficient to constitute professional misconduct, that he should have withdrawn the amounts without the authority of his client for the obvious purpose of recovering therefrom his own fee which will be payable only on the termination of the suits, is indeed a serious matter, it cannot but be regarded that he has exploited his fiduciary position to his advantage and to the detriment of the interests of his client. The act of his retention of the money with him for so long a time, also, in the circumstances of the case, exposes him to the indictment of professional misconduct. In case of refusal he should have immediately deposited the amount in the Court. As observed in (S) : AIR1955Ori102 , (supra) where the duty and personal interest conflict, the former should prevail. That is a salutary rule which we think must necessarily weigh with the members of the Bar while dealing with their clients, it is unfortunate that the inexperience of the respondent could not bring home the delicacy of his position as a lawyer.

13. Then there is a further charge relating to the non-rendering of account of expenses and non-return of the records. Rule 32 of the Bar council Rules provides that a copy of the client's account shall be furnished on demand, provided the necessary copying charges are paid. It would appear from the notices that the complainant was demanding the statement of account showing the details how the moneys given by her were spent out, the respondent was telling her in the notices that the amounts spent are mentioned in his accounts in detail and that she can come to his office and see. In another notice, he stated that he was prepared to show the account of credit and debit if she comes to his office and that if she wants a copy, she shall have to pay copying charges. He did not however specify what were the copying charges. Unless he did so, it was not possible for the client to remit the same. She was not prepared to go over to the respondent, in view of the differences which grew up with the result that she could neither look into the accounts, if at all maintained in time, nor could she receive any copy. This attitude of the respondent is not at all commendable.

14. With regard to the records in the Civil suits, the District Judge has accepted the statement of P. W. 1, that they were not returned so far. The counter of the respondent refers only to the return of the files relating to the Rent Control matters. That being the case, the opinion of the District Judge that the records of the civil suits were not returned is acceptable.

15. Thus on the material on record it is indisputable that the respondent is guilty of professional misconduct. He behaved not only wrongly, but acted, if we may can so, most unwisely, in persisting in his mistake, hiS FIRm resolve not to swerve from the, stand he had taken, howsoever unjust, is not at all commendable, if at all he was under a mistaken notion as to his right to deduct legal fee, the clear and categorical statements in the notices sent by his client to the effect that he had no such rightought to have disillusioned him or at least put him on notice to get himself apprised of the correct position in law. But the respondent was not discreet. He was not tactful either. He was obdurate and allowed his stubbornness to get better of his power of discretion and sense of judgment.

However, considering his age and short experience as a lawyer, we do not deem it meet to take drastic steps which in all probability would blast away his prospects of a bright future, mere is no reason to believe that he will not turn a new leaf. In fact, he seems to have now realised his mistake. He feels repentant and has rendered his apology stating that he was labouring under a serious error of judgment owing to his inexperience. Cases of this kind should be looked with commiseration, though having regard to the circumstances of the case it is not possible to accept his apology, we, however, feel that ends of justice would be met if he be awarded the lightest punishment of reprimand, which will serve as a warning and a corrective for the future, we order accordingly and direct further that he will pay the costs of this proceeding to the complainant, which are fixed at Rs. 100/-.

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