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Gulam Mustafa Vs. District Judge, Nalgonda - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 86 of 1958
Reported inAIR1959AP432
ActsLegal Practitioners Act, 1879 - Sections 13, 14 and 32; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantGulam Mustafa
RespondentDistrict Judge, Nalgonda
Appellant AdvocateV. Venkateswaralu and ;K. Kesava Rao, Advs.
Respondent AdvocateA.V. Suryarao, Adv. for ;A.S. Choudary, Addl. Govt. Pleader
.....and sub-court without renewing pleadership certificate - show cause notice served by district judge - district judge fined and suspended him from practice without any enquiry or framing charges - report to high court also not sent as required by section 14 - court before which illegality committed alone was empowered to take action under section 32 - superior court cannot take action under section 32 - practising without renewing pleadership certificate did not tantamount to unprofessional conduct as contemplated under section 13 - held, action of district judge illegal. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with..........every report made to the high court under this section shall;-- (a) when made by any civil judge subordinate to the district judge, be made through such judge; (b) when made by a magistrate subordinate to the magistrate of the district, be made through the magistrate of the district and the sessions judge; (c) when made by the magistrate of the district be made through the sessions judge; (d) when made by any revenue officer subordinate to the chief controlling revenue authority, be made through such revenue authorities as the chief controlling revenue authority may, from time to time, direct. every such report shall be accompanied by the opinion of such judge, magistrate, or revenue authority through whom or which it is made'. this procedure admittedly has not been followed.....

Sanjeeva Rao Nayudu, J.

1. This is an application for revising the order of the learned District Judge, Nagonda, dated 2-1-1958, directing the suspension of the petitioner from practising an also imposing a fine of Rs. 150/-on him on a charge of the petitioner having practised without taking out a certificate under Section 7 of the Legal Practitioners Act (hereinafter referred to as the Act.)

2. The petitioner was practising as 3 third grade pleader in the Hyderabad State under the old Regulation that was in force till 1951. In that year, under the rules framed by the High Court of Hyderabad he applied to be accepted as a second grade pleader which apparently had been done. As a second grade pleader, under the rules in force, the petitioner had to renew his pleadership certificate annually applying therefor on the 15th of November. The petitioner's pleadership certificate expired on 61st December 1956, He did not renew his certificate for the year 1957, Notwithstanding this fact, the petitioner appeared in the District Munsif's Court at Nalgonda, and conducted two ex parte small cause matters during the year 1957.

3. On 30th November 1957, the petitioner was served with a notice issued by the District Judge, Nalgonda, wherein it was stated that it had come to the notice of the District Judge that during the year 1957 the petitioner had practised in the Court of the Munsif Magistrate, Nalgonda, as well as in the Sub-Court, Nalgonda, although he had not renewed his pleadership certificate for the year 1957. The notice required the petitioner to show cause why proceedings against him should not be taken under the Act, on or before 4th December, 1957.

4. To this the petitioner replied on 20th December 1957 pleading that he was ill in the year 1957 with rheumatism, that owing to extreme poverty he was unable to renew the pleadership certificate and that he had to take up the two ex par to small cause matters under financial stringency and breakdown in health in order to sustain himself and his family. He asked for pardon for this error and prayed that any administrative action against him may be dropped. In that, he also requested that the certificate of pleadership for 1956 may be renewed.

Although the learned District Judge had this reply of the petitioner, he did not hold any enquiry or frame charges against the petitioner, nor did he make a report to the High Court under Section 14 of the Act. Instead, without hearing the petitioner, without holding an enquiry, without giving an opportunity to the petitioner to present his case either in person or by pleader, the learned District Judge apparently passed an order directing the petitioner to pay a fine of Rs. 150/- and also that he be suspended for a period of 9 months. The legality of this order is now questioned before this Court.

5. Section 32 of the Act authorises imposition of a fine on a legal practitioner. Section 32 is as follows :--

'Any person who practises in any Court or Revenue Office in contravention of the provisions of Section 10 or Section 20 shall be liable, by order of such Court or the Officer at the head of such office, to a fine not exceeding ten times the amount of the stamp required by this Act for a certificate authorising him so to practise in such Court or Office, and in default of payment, to imprisonment in the civil jail for a term which may extend to six months.

He shall also he incapable of maintaining any suit for, or enforcing any lien with respect to, any fee or reward for, or with respect to, anything done or any disbursement made by him as Pleader, Mukhtar or Re venue-agent, whilst he has been contravening the provisions of either; of such sections.' It may be seen from the section -- and as contended by the learned counsel for the petitioner, that it is only the Court before which the illegality referred to in Section 32 was committed, that could take action and not any other Court. There is nothing in the Section to indicate that any superior Court could take action under Section 32. On the plain wording of the Section, I have no doubt in my mind that the order of the learned District Judge imposing a fine of Rs. 150/- under Section 32 of the Act is clearly illegal and without jurisdiction and must be set aside.

6. An order of suspension can only be made under Section 14 of the Act provided that certain misconduct is alleged against the legal practitioner in question. In this case the only misconduct alleged is that the petitioner practised without renewing his pleadership certificate. This might amount to misconduct because it is prohibited under Section 32 but it certainly cannot, in my opinion, amount to any unprofessional conduct as contemplated by Section 13 of the Act which is as follows :-

'13. The High Court may also, after such inquiry as it thinks fit, suspend or dismiss any pleader of Mukhtar holding a certificate as aforesaid ....

(a) who takes instructions in any case except from the party on whose behalf he is retained, or some person who is the recognised agent of such party within the meaning of the Code of Civil Procedure, or some servant, relative or friend authorised by the party to give such instructions, or

(b) who is guilty of fraudulent or grossly improper conduct in the discharge of his professional duty, or

(c) who tenders, gives or consents to the retention, out of any fee paid or payable to him for his services, of any gratification for procuring or having procured the employment in any legal business of himself or any other Pleader or Mukhtar, or

(d) who, directly or indirectly, procures or attempts to procure the employment of himself as such Pleader or Mukhtar through, or by the intervention of, any person to whom any remuneration for obtaining such employment has been given by him, or agreed, or promised to be so given, or

(e) who accepts any employment in any legal business through a person who has been proclaimed as a tout under Section 36, or

(f) for any other reasonable cause.''

7. Assuming for the sake of further consideration or this case that the present matter is covered by Section 13, then the procedure for dealing with such cases is prescribed in Section 14 of the Act which runs as follows :--

'If any such Pleader or Mukhtar practising in any subordinate Court or in any Revenue Office is charged in such Court or Office with taking instructions-except as aforesaid, or with any such misconduct as aforesaid, the presiding officer shall send him a copy of the charge and also a notice that, on a day to be therein appointed, such charge will be taken into consideration.

Such copy and notice shall be served upon the pleader or mukhtar at least 15 days before the day so appointed.

On such day, or on any subsequent day, to which the enquiry may be adjourned, the presiding Officer shall receive and record all evidence properly produced in support of the charge, or by the pleader or Mukhtar, and shall proceed to adjudicate on the charge.

If such Officer finds the charge established and considers that the Pleader or the Mukhtar should be suspended or dismissed in consequence, he shall record his findings and the grounds thereof, and shall report the same to the High Court; and the High Court may acquit, suspend, or dismiss the Pleader or Mukhtar.

Any District Judge, or with his sanction any Tudgo subordinate to him, any Judge of a Court of Small Causes of a Presidency Town, any District Magistrate, or with his sanction any Magistrate subordinate to him, and any Revenue Authority not inferior to a Collector or with the Collector's sanction any Revenue Officer subordinate to him, may. pending the investigation and the orders of the High Court, suspend from practice any Pleader or Mukhtar charged before him or it under this Section. Every report made to the High Court under this Section shall;--

(a) when made by any Civil Judge subordinate to the District Judge, be made through such Judge;

(b) when made by a Magistrate subordinate to the Magistrate of the District, be made through the Magistrate of the District and the Sessions Judge;

(c) when made by the Magistrate of the District be made through the Sessions Judge;

(d) when made by any Revenue Officer subordinate to the Chief Controlling Revenue authority, be made through such Revenue Authorities as the Chief Controlling Revenue Authority may, from time to time, direct.

Every such report shall be accompanied by the opinion of such Judge, Magistrate, or Revenue authority through whom or which it is made'. This procedure admittedly has not been followed in this case, for the matter should have been reported to the High Court for consideration after recording the finding by the District Judge together with the grounds therefor.

No such report has been submitted although the order is said to have been made on 2-1-1958. When a copy was applied for by the petitioner to the District Judge, the copy was refused to him on the ground that it was an administrative proceeding and as such copy could not be given. The refusal to give a copy is adding insult to injury. The learned District Judge was completely and totally wrong in ordering suspension for a period of nine months, an order which can only be made on proper enquiry by this Court.

The power, given to the District Judge to suspend a legal practitioner pending reference to the High Court does not justify his making a final order of suspension for a definite period of time. The order of the District Judge ordering suspension of the legal practitioner in this case for 9 months is clearly illegal and must be quashed.

8. It is contended by the Government Pleader that this is not a matter which is covered by Section 115 C. P. C. This order has been made by the District Judge, subordinate to this Court, purporting to exercise jurisdiction which is not vested in him by law. This is clear case which calls for interference under Section 115, C.P.C. In the result the order of the District Judge, dated 2-1-1958 sentencing the petitioner to a fine of Rs. 150/- and to suspension for a period of 9 months is quashed. The fine, if paid will be refunded.

9. It is represented that the petitioner had paid the renewal fee necessary to renew his certificate in the beginning of 1958 itself. The learned District Judge apparently did not renew the certificate in view of his orders suspending the petitioner which had now been set aside. The District Judge is directed to issue the pleadership certificate to the petitioner forthwith for the current year.

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