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Shiva NaraIn Jafa Vs. the Hon'ble Judges of the High Court of Judicature (01.12.1933 - ALLHC) - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in150Ind.Cas.699
AppellantShiva NaraIn Jafa
RespondentThe Hon'ble Judges of the High Court of Judicature
Cases ReferredBhagwant Singh v. Bhao Singh
Excerpt:
.....in the exercise of one or other of the classes of jurisdiction conferred by clause 9 to 27 of the letters patent of the patna high court and does not extend to the administrative or disciplinary powers conferred on the court by the earlier clauses or by statute. the learned chief justice based his judgment on the view that the words 'order made on appeal or otherwise as aforesaid' clearly refer to judgments, decrees or orders passed in the exercise of original jurisdiction, not being criminal jurisdiction, which were classified in clauses 9 to 27 of the letters patent and included civil, criminal, admiralty, testamentary, intestate and matrimonial jurisdiction, appellate and original and did not include administrative or disciplinary powers conferred on the court by clause 8 and other..........and that when exercising such power the high court is not exercising any jurisdiction, much less civil jurisdiction. it is, therefore, contended that clause 30 of the letters patent would not at all apply and there would be no appeal to the privy council. it is further contended that the case not being a civil case to which sections 109 and 110, civil procedure code can apply, no leave can be granted under those sections.2. reliance is placed on the view which has been expressed in some of the other. high courts in india. in g.s.d. v. government pleader, high court, bombay 32 b 106, it was laid down that a vakil of the bombay high court who had been suspended in the exercise of the disciplinary jurisdiction under the letters patent, could not be given leave to appeal to his majesty in.....
Judgment:
ORDER

1. This is an application for leave to appeal to His Majasty in Council from an order of a Bench of this Court suspending the applicant who is an enrolled Advocate, for a period of three months. A preliminary objection is taken by the Government Advocate that no leave to appeal to His Majesty in Council can be given by this Court. It is urged that the suspension of the Advocate is in the exercise of the power especially conferred upon this Court by Clause (8) of the Letters Patent and by the Bar Councils Act of 1926 and that when exercising such power the High Court is not exercising any jurisdiction, much less civil jurisdiction. It is, therefore, contended that Clause 30 of the Letters Patent would not at all apply and there would be no appeal to the Privy Council. It is further contended that the case not being a civil case to which Sections 109 and 110, Civil Procedure Code can apply, no leave can be granted under those sections.

2. Reliance is placed on the view which has been expressed in some of the other. High Courts in India. In G.S.D. v. Government Pleader, High Court, Bombay 32 B 106, it was laid down that a Vakil of the Bombay High Court who had been suspended in the exercise of the disciplinary jurisdiction under the Letters Patent, could not be given leave to appeal to His Majesty in Council, as the order was not in the nature of a final judgment, decree or order within the meaning of Letters Patent. Three cases previously decided by this Court Were distinguished.

3. In the case of Bir Kishore Roy v. Emperor 52 Ind. Cas. 599 : 4 P.L.J. 423 : 20 Cr. L.J. 679, it was clearly held that the right of appeal to His Majesty in Counci is confined to appeals from judgments, decrees or orders passed in the exercise of one or other of the classes of jurisdiction conferred by Clause 9 to 27 of the Letters Patent of the Patna High Court and does not extend to the administrative or disciplinary powers conferred on the Court by the earlier clauses or by statute. The learned Chief Justice based his judgment on the view that the words 'order made on appeal or otherwise as aforesaid' clearly refer to judgments, decrees or orders passed in the exercise of original jurisdiction, not being criminal jurisdiction, which were classified in Clauses 9 to 27 of the Letters Patent and included Civil, Criminal, Admiralty, Testamentary, Intestate and Matrimonial jurisdiction, appellate and original and did not include administrative or disciplinary powers conferred on the Court by Clause 8 and other earlier clauses.

4. This case was followed by a Full Bench of the Madras High Court in In the matter of E.R.Raghava Reddi 69 Ind. Cas. 290 : A.I.R. 1922 Mad. 440 : 16 L.W. 328 : (1922) M. W. N. 530 : 31 M. L. T. 173 : 43 M .L.J.

5. The Patna High Court in In re Miss Sudhansu Bala Hazra 83 Ind. Cas. 26 : A.I.R. 1922 Pat 603 : (1924) Pat. 170 : 3 Pat. 839 : 6 P.L.T. 212, followed the same ruling in declining to grant leave to appeal from an order refusing to enrol a lady practitioner.

6. On the other hand, there are several cases of this Court in which it was considered that this Court has jurisdiction to grant leave to appeal to His Majesty in Council, leave was granted and objection was raised before their Lordships of the Privy Council.

7. In the matter of Parbati Charan Chatterji 17 A 498 : 22 I.A. 193 : 6 Sar. 635, leave to appeal to His Majesty in Council was granted by this Court and the appeal was entertained by their Lordships of the Privy Council without any objection having been raised by the opposite party. We have seen the paper book and verified the fact that the appeal had been granted by this Court.

8. In the matter of Rajendra Nath Mukerji 22 A 49 : 26 I.A. 242 : 3 C.W.N. 736 : 1 Bom. L.R. 708 : 7 Sar. 556 (P.C.), where an Advocate of this Court had been removed from the rolls, the High Court granted a certificate for appeal under Section 595, Civil Procedure Code, and the appeal was entertained by their Lordships of the Privy Council. Section 595, Civil Procedure Code (Act XIV of 1882) corresponded to the present Section 109, Civil Procedure Code.

9. In the matter of Sarbadhicary 34 I.A. 41 : 29 A 95 : 4 A.L.J. 34 : 9 Bom. L.R. 9 : 11 C.W.N. 273 : 5 C.L.J. 130 : 17 M.L.J. 74 : 2 M.L.T. 1 (P.C.), an Advocate of this Court who had been suspended from practice for four years, leave was granted by the High Court to him to appeal to His Majesty in Council, though it appears that he also obtained special leave from the Privy Council.

10. In the matter of an Advocate of Benares : AIR1933All18 , a Bench of this Court presumed that, on previous occasions this Court had treated applications for leave to appeal as falling under Section 109(c), Civil Procedure Code and granted leave in fit cases and following the previous practice granted leave in that case when they were satisfied that it was a fit case for appeal.

11. In In the matter of a Pleader of Allahabad : AIR1933All225 , who had been suspended for six months for contempt of Court, another Bench granted leave to appeal to His Majesty in Council. The attention of the Court was drawn to the decisions of the Patna, Madras and Calcutta High, Courts in which it had been laid down, that the High Courts were not authorised to grant such leave; but the Bench in view of the consistent practice of this Court did not propose to depart from this practice and held that leave may be granted under Section 109(c), Civil Procedure Code. They also pointed out that if leave could not be granted under this section of the Code then it may be granted under Clause 30 of the Letters Patent.

12. The view which seems to have prevailed in other High Courts is that when the High Court exercises its power to remove or suspend from practice on reasonable cause an Advocate or Pleader, it is not, exercising any jurisdiction at all, but is merely exercising its special power. It seems to have been assumed that the jurisdiction mentioned in Clause 30 of the Letters Patent must mean only Civil, Criminal, Admiralty, Testamentary and Matrimonial jurisdiction, whether original or appellate and could not include any other class of jurisdiction. If one were confined to the clauses of the Letters Patent alone, it may well be said that the word 'jurisdiction' was not used therein in connection with any other class of exercise of power. But Clause 35 of the Letters Patent expressly provides that the Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council. It follows that the provisions of the Letters Patent can be amended from time to time by Imperial Act and that fresh jurisdiction not specifically conferred by the Letters Patent may be conferred on the High Court to hear and try cases not expressly provided for tinder the Letters Patent.

13. Under Clause 30, in any matter not being of criminal jurisdiction, an appeal lies to His Majesty in Council from any final judgment, decree or order of the High Court made on appeal and from any final judgment decree or order made in the exercise of original jurisdiction by the Judges provided certain conditions are fulfilled and also from.

any other final judgment, decree or order made either on appeal or otherwise as aforesaid when the said High Court shall declare that the case is a fit one for appeal to the Privy Council.

14. No doubt the words 'or otherwise as aforesaid' must mean an order made in the exercise of the original jurisdiction referred to in the earlier portion of the clause, but it is noteworthy that the expression is 'original jurisdiction' and not 'original, Civil, Criminal, Admiralty, Testamentary or Matrimonial jurisdiction'. It seems to us that if by statute an original jurisdiction is conferred upon the High Court and to that extent the Letters Patent are amended, and in the exercise of which, an order is made, it would be an order passed in the exercise of original jurisdiction, though it may not necessarily be classified as Civil, Criminal, Admiralty, Testamentary or Matrimonial jurisdiction referred to in Clauses 9 to 29 of the Letters Patent. Of course where the High Court is acting departmentally or is making any administrative order it would not be regarded as exercising its jurisdiction in a judicial matter, but where the Court is acting judicially and making an order in a judicial matter, it would be difficult to say that it is not exercising any jurisdiction at all.

15. The position is now made clear by the passing of the Bar Councils Act (XXXVIII, of 1926). Sections 10 to 13 deal with the enquiry into the conduct of an Advocate. Under Section 10 the High Court may reprimand, suspend or remove from practice any Advocate whom it rinds guilty of professional or other misconduct upon receipt of a complaint made to it by any Court or by the Bar Council or by any other person or of its own motion, the High Court if it does not reject the complaint, shall refer the case for enquiry, either to the Bar Council or to the Court of a District Judge. Section 11 provides that the case shall be enquired into by a Committee of the Bar Council called the Tribunal, which will be governed by the procedure prescribed by rules for the conduct of such enquiries. The 'finding' of the Tribunal on enquiry referred to the Bar Council has to be forwarded to the High Court and the 'finding' of the District Judge is similarly forwarded to the High Court and oh receipt of such 'finding', the High Court is to fix a date 'for the hearing of the case' and cause notice to be given and afford an opportunity to the Advocate, the Bar Council and the Advocate-General of being heard before orders are passed in the case. Thereafter the High Court may either pass such final orders in the case as it thinks fit or refer it back for further enquiry and upon receipt of the finding after such further enquiry, deal with the case and pass final orders thereon and in passing such final orders the High Court 'may pass such orders as regards the payment of the costs of the enquiry and of the hearing in the High Court as it thinks fit'. The High Court is also given power to review the orders passed by it and maintain, vary or rescind the same, as it thinks fit. Then Section 13 lays down that the Tribunal or the District Court shall have the same powers as are vested in a Court under the Code of Civil Procedure in respect of attendance of witnesses, production of documents and issuing of commissions. Section 13(2) provides that such enquiry shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code; and a Tribunal shall be deemed to be a Civil Court for the purposes of Sections 480, 482 and 485 of the Criminal Procedure Code.

16. Lastly, the proceedings before a Tribunal or a District Court in any such enquiry are deemed to be civil proceedings for the purposes of Section 132 of the Indian Evidence Act.

17. It seems to us that when special power has been conferred upon the High Court under Section 10 of the Bar Councils Act to get an enquiry made into the alleged misconduct of an Advocate and on receipt of the finding, to fix a date for the hearing of the case and to hear the parties concerned and then pass such final orders in the case as it thinks fit and make an order as to the payment of the costs of the enquiry and of the hearing in the High Court, and if necessary, later on to review its order, the High Court in such a proceeding is acting judicially and not merely in an administrative capacity. The entire proceeding is of a judicial nature and the proceeding is a hearing before the High Court and orders for the payment of costs of such proceedings can be passed. No doubt, in essence, the action taken is a disciplinary action, but the proceeding in itself is of the nature of a judicial proceeding and the enquiry is a public enquiry in which the parties concerned are entitled as of right to be heard. We therefore find it very difficult to hold that in such a judicial proceeding, the High Court is not exercising any 'jurisdiction' within the meaning of Clause 30 of the Letters Patent. Such a jurisdiction obviously is not an appellate jurisdiction, nor is it a criminal jurisdiction. As it is the High Court only which passes, final orders in the case on the receipt of the finding, it must be held to be exercising original jurisdiction and not any appellate jurisdiction.

18. In this view of the matter we find it most difficult to hold that the order passed in such a proceeding is not an order passed in the exercise of original jurisdiction of the High Court, conferred upon it by the Indian Bar Councils Act, modifying to some extent the power conferred upon it by the Letters Patent. At the same time, we would say that the mere fact that the words in Clause 8 are 'especially empowered to remove or suspend from practice on reasonable cause' would not necessarily show that the High Court is not exercising any jurisdiction when it excises such power. In view of the certificate granted in In the matter of Rajendra Nath Mukerji 22 A 49 : 26 I.A. 242 : 3 C.W.N. 736 : 1 Bom. L.R. 708 : 7 Sar. 556 (P.C.) it has been suggested in this Court that the case may very well fall under Section 109(c), Civil Procedure Code also. In the latest case of this Court it has been further pointed out that Clause 30 of the Letters Patent applies.

19. Following the rulings of this Court and differing from the views of the other High Courts, we hold that this High Court has jurisdiction to grant leave to appeal to His Majesty in Council provided we are satisfied that this is a fit and proper case.

20. The next question is whether this case is a fit one for appeal to His Majesty in Council. There were several charges framed against the Advocate. He was exonerated by the Bar Council as regards all except the first charge. As to this, the finding of the Bar Council was that he should not have filed a fee certificate on the strength of a promissory note without actually having received his fees and his conduct in doing so was not a proper conduct. At the same time they were of opinion that he did so under a bona fide mis-apprehension and mis-interpretation of the rules and had committed an honest mistake. The High Court on a consideration of the finding came to the conclusion that not only the filing of the fee certificate was contrary to the rule framed by this Court but that he acted in bad faith in filing it.

21. The point raised in appeal is that an objection should have been filed within ten days by the Government Advocate against the finding of the Bar Council, that the proper interpretation of the Rule 1 of Chap. XXI (page 256 of the General Rules Civil) for Civil Courts is that the fee need not be paid in cash that there was some contradiction in the two sub-sections of the Rule at the time when the Advocate had got his form of certificate printed, which contradictions have been lately removed by amendment, that there was latitude allowed to him. inasmuch as it was provided that the certificate shall be 'so far as is possible' in the form prescribed and that in filing a certificate he had made it clear in it that he had not received the amount in cash but had accented a promissory note in lieu of the fee, and lastly that two District Judges of Budaun had interpreted the rule in his favour.

22. It has been held in this Court in Bhagwant Singh v. Bhao Singh : AIR1932All337 which view has now been accepted by the Full Bench, that the fee cannot be taxed unless it has been actually paid, and that the mere giving of a promissory note would not amount to an actual payment of the fee. There are other points also raised which were embodied in a written argument filed in this Court.

23. The question whether this is a fit case for appeal is no doubt a difficult one. We would not allow an appeal to be filed invariably in every case and no leave should be granted unless the Advocate satisfies the Court that it is a fit case for appeal to His Majesty in Council. Having regard to the special circumstances of the case, we are of opinion that this is a case which should be certified as a fit one for appeal to His Majesty in Council under Section 109(c), Civil Procedure Code or at any rate under Clause 30 of the Letters Patent. We, therefore, grant the necessary certificate.


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