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In the Matter of P. an Advocate - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtSupreme Court of India
Decided On
Judge
Reported in1963CriLJ341; [1964]1SCR697
ActsSupreme Court Rules - Order IV-A, Rule 18
AppellantIn the Matter of P. an Advocate
Cases ReferredAllinson v. General Council of Medical Educationand Registration
Excerpt:
.....interest of profession. - - in its opinion, the conduct of the advocate amounts to professionalmisconduct as well as other misconduct within the meaning of the said order. it is to be hoped that this departure from professionaletiquette conventionally prescribed for the senior advocates is an exception,for if senior advocates were to deal with the clients direct, it would destroythe very basis of the system of advocates-on-record and would make it sodifficult for this court to assist the growth of a strong, healthy andefficient junior bar consisting of advocates-on-record and junior advocates whoprefer only to plead and not to act and plead. it is in the light of these findings that wehave to decide whether the tribunal was justified in holding that the advocateis guilty of..........client in the appeal in question,and if so, whether such conduct amounts to professional or other misconductwithin the meaning of that expression in o. iv of the rules. the report of thetribunal shows that it has found against the advocate on both parts of theissue. in its opinion, the conduct of the advocate amounts to professionalmisconduct as well as other misconduct within the meaning of the said order. 3. on receipt of this report, the proceedings have been placed before us forfinal disposal under o. iv-a r. 21 of the rules and the questions which fallfor our decision are whether the tribunal was right in holding that the conductof the advocate amounts to professional misconduct and other misconduct and ifyes, what is the penalty which should be imposed on the advocate 4. the.....
Judgment:

Gajendragadkar, J.

1. Mr. P., who is an advocate-on-record of this Court and who will hereafterbe called the 'Advocate', acted for the Board of Trustees of the Dakhina ParswaNath of Puri through its Executive Officer respondent No. 2 (b) in Civil AppealNo. 232/1954. As such Advocate he entered appearance on November 9, 1957. Thesaid appeal was heard on May, 2 and 6, 1958, and by the Judgment pronounced bythis Court on May, 20, 1958, it was dismissed with costs in favour ofrespondent No. 2 (b). The Advocate had briefed Mr. J. as a senior Advocate tolead him at the hearing of the appeal. It appears that the client had paid theAdvocate Rs. 500/- on the eve of the hearing of the appeal and the seniorAdvocate was paid Rs. 1,000/- direct by the client. The Bill of Costs andvouchers had to be filed by the Advocate on behalf of his client within sixweeks from the date of judgment under O. XL r. 12 of the Supreme Court Rules(hereinafter called the 'Rules'). The said period expired during the summervacation of the Court. After the summer vacation, the Court reopened on August4, 1958. Meanwhile, on May, 20, 1958, after the judgment was delivered by thisCourt, the Advocate wrote to his client informing him about the result of theappeal and intimating to him that the bill of costs had to be filed. On June,28, 1958, he again wrote to his client and called for Rs. 60/- to meet thenecessary expenses in the matter of presenting the bill of costs. This amountwas paid to him at Puri on July 26, 1958, and the Advocate passed a receipt inthat behalf. He, however, took no further action in the matter until aboutJanuary 9, 1959, when it appears that he inspected the Court records in orderto be able to prepare a defeat bill. A bill was accordingly prepared by him andit was presented in Court on May 19, 1959. Since the bill was obviously filedbeyond the period prescribed by O. XL. r. 12 the Office returned the bill tothe Advocate. In ordinary course, the Advocate should have filed an applicationrequesting that the delay made in filing the bill should be condoned, but heseems to have taken no further action in that behalf. Even so, on May, 18,1960, the Advocate asked for and received Rs. 200/- from his client. It appearsthat Mr. Banamdar was the Executive Officer of respondent No. 2(b) when theAdvocate was engaged by him but later, Mr. Misra succeeded to the office of theExecutive Officer and the amount of Rs. 200/- was paid to the Advocate by Mr.Misra; a receipt for this payment had also been passed. It is difficult to understandwhy the Advocate asked for this amount. During the period this client wrote tothe Advocate enquiring about the bill of costs but received no reply. When Mr.Misra realised that the Advocate was taking no action in the matter ofpresenting the bill of the costs and obtaining orders thereon, he gave noticeto the Advocate on January 9, 1961, discharging him from his engagement. OnJanuary 12, 1961, he also applied to this Court to cancel the Advocate'sVakalat and to condone the delay made in the filing of the bill of costs. OnMarch 12, 1961, the Advocate agreed that his client can engage Mr. Verma. Theapplications made by the client for cancelling the Advocate's Vakalat and forcondoning the delay made in the filing of the bill of costs came up before thelearned Judge in Chambers. They had, however, to be adjourned from time to timein order to enable the Advocate to appear before the learned Chamber Judge.Ultimately, on January 9, 1962, the learned Judge condoned the delay made inthe presentation of the bill of costs without prejudice to the right of thejudgment-debtor to plead that the execution in respect of the bill of costs isbarred by limitation. He also ordered that the papers should be submitted tothe Hon'ble the Chief Justice for taking action against the Advocate for thegross negligence shown by him in the conduct of the proceedings in this case.The advocate was also directed to hand over all the papers of the case to Mr.Verma.

2. After the papers were thus placed before the learned Chief Justice, heconstituted a Tribunal consisting of three members of the Bar under O. IV-A r.18 to enquire into the conduct of the Advocate. The Tribunal then proceeded tohold an enquiry and submitted its report. The issue which the Tribunal tried inthese proceedings was whether the Advocate acted with gross negligence in thematter of the taxation of the costs of his client in the appeal in question,and if so, whether such conduct amounts to professional or other misconductwithin the meaning of that expression in O. IV of the Rules. The report of theTribunal shows that it has found against the Advocate on both parts of theissue. In its opinion, the conduct of the Advocate amounts to professionalmisconduct as well as other misconduct within the meaning of the said Order.

3. On receipt of this Report, the proceedings have been placed before us forfinal disposal under O. IV-A r. 21 of the Rules and the questions which fallfor our decision are whether the Tribunal was right in holding that the conductof the Advocate amounts to professional misconduct and other misconduct and ifyes, what is the penalty which should be imposed on the Advocate

4. The relevant facts which the Tribunal had to weigh in dealing with theissue referred to it lie within a narrow compass. It is obvious that in filingthe bill of costs of May 19, 1959, the Advocate was guilty of gross delay. Heknew that O. XL r. 12 required that the bill of costs and vouchers had to befiled within six weeks from the date of judgment and there is no doubt that forfiling the bill of costs and vouchers it was unnecessary to obtain anyinstructions from the client or secure any material from him. The bill of costsincurred by the respondent in the proceedings before this Court which had to betaxed were in this case all costs incurred in this Court and if the Advocatehad kept proper accounts, he would have been able to file the bill of costswithout any delay. It is true that the senior counsel briefed by him in thiscase was paid his fees of Rs. 1000/- by the client direct which, incidentallyis not consistent with professional etiquette and convention about the conductof a senior counsel. It is to be hoped that this departure from professionaletiquette conventionally prescribed for the senior Advocates is an exception,for if Senior Advocates were to deal with the clients direct, it would destroythe very basis of the system of Advocates-on-Record and would make it sodifficult for this Court to assist the growth of a strong, healthy andefficient junior Bar consisting of Advocates-on-record and junior Advocates whoprefer only to plead and not to act and plead. It is, however, clear that theAdvocate could have obtained a receipt from the senior counsel without anydelay and it is not suggested that the delay made by him in filing the bill ofcosts had anything to do with his inability to obtain such a receipt. In fact,the senior counsel had already sent a receipt to his client and there is nodoubt whatever that if only the Advocate had approached him for another receiptin that behalf, the senior counsel would have immediately given him such areceipt. Therefore, in dealing with the question of delay, we cannot ignore thefact that the delay has been made in filing the bill of costs and voucherswhich was entirely a matter within the Advocate's knowledge. It is of utmostimportance that Advocates-on-record ought to discharge their duties by theirclients with diligence and there should be no occasion for any delay in thefiling of the bills of the costs and vouchers under O. XL r. 12.

5. It is significant that the client repeatedly wrote to the Advocate andenquired about the bill of costs. Four of such letters written by the client tothe Advocate have been produced in the proceedings before the Tribunal. TheAdvocate explained that he sent replies to these letters by post-cards orsometimes orally explained to the client the position when he happened to meethim. The Tribunal was not impressed with this explanation and thought that theconduct of the Advocate in not sending any replies to the queries made by hisclient rather shows that the advocate knew that he was at fault and he hadreally no answer to give in respect of the said queries. It is also clear thatafter the appeal was decided, the Advocate was paid by his client Rs. 60/-obviously with a view to enable him to file the bill of costs. The Tribunal hasfound that this amount was quite ample under the rules and so, it is notpossible to explain the delay made by the Advocate in filing the bill of costson the ground that he was not put in charge of sufficient funds by his clientto meet the expenses in that behalf.

6. A faint attempt was no doubt made by the Advocate to show that he couldnot file the bill of costs in time because he did not receive the assistance ofthe High Court lawyer as to the printing charges, etc. Indeed, it does appearthat the Advocate wrote a letter on May 20, 1958, calling for some informationin respect of the printing charges incurred in the preparation of the paperbooks in this appeal. As the Tribunal has observed, this plea is entirelymeaningless, because the taxation of costs of the appeal in this Court hasnothing to do with the expenses incurred by the parties for preparing therecord in the High Court; and as to vouchers, the only voucher which theAdvocate had to file was the voucher from the senior counsel in respect of thefees of Rs. 1,000/- paid to him. Therefore, there is little doubt that theAdvocate was guilty of causing gross delay in filing the bill of costs andvouchers as required by the relevant Rule. The fact that the learned ChamberJudge was pleased to condone the delay made in presenting the bill of costswhen he was moved by Mr. Verma by a separate application made in that behalf,does not mitigate the default on the part of the Advocate in not filing thesaid bill of costs in time. Besides, as we have already seen, the delay hasbeen condoned without prejudice to the judgment-debtor's right to plead thatthe execution is barred by the law of limitation. In case such a plea is raisedand allowed, the respondent is likely to lose a large amount of more than Rs.2,000/-. Even if the plea is not raised, or, if raised, is not allowed and therespondent secures his costs from the appellant, that would be because thelearned Chamber Judge took a sympathetic view and did not wish to penalise theparty for default of his Advocate. It is in the light of these findings that wehave to decide whether the Tribunal was justified in holding that the Advocateis guilty of professional misconduct as well as other misconduct.

7. It is true that mere negligence or error of judgment on the part of theAdvocate would not amount to professional misconduct. Error of judgment cannotbe completely eliminated in all human affairs and mere negligence may notnecessarily show that the Advocate who was guilty of it can be charged withmisconduct, vide In re A Vakil (1925) I.L.R. 49 Mad. 523, and in the matterof an Advocate of Agra I.L.R. 1940 All. 386. But different considerationsarise where the negligence of the Advocate is gross. It may be that beforecondemning an Advocate for misconduct, courts are inclined to examine thequestion as to whether such gross negligence involves moral turpitude or delinquency.In dealing with this aspect of the matter, however, it is of utmost importanceto remember that the expression 'moral turpitude or delinquency' isnot to receive a narrow construction. Wherever conduct proved against anAdvocate is contrary to honesty, or opposed to good morals, or is unethical, itmay be safely held that it involves moral turpitude. A wilfull and callousdisregard for the interests of the client may, in a proper case, becharacterised as conduct unbefitting an Advocate. In dealing with matters ofprofessional propriety, we cannot ignore the fact that the profession of law isan honourable profession and it occupies a place of pride in the liberalprofessions of the country. Any conduct which makes a person unworthy to belongto the noble fraternity of lawyers or makes an Advocate unfit to be entrustedwith the responsible task of looking after the interests of the litigant, mustbe regarded as conduct involving moral turpitude. The Advocates-on-record likethe other members of the Bar Advocates are Officers of the Court and the purityof the administration of justice depends as much on the integrity of the Judgesas on the honesty of the Bar. That is why in dealing with the question as towhether an Advocate has rendered himself unfit to belong to the brotherhood atthe Bar, the expression 'moral turpitude or delinquency' is not to beconstrued in an unduly narrow and restricted sense.

8. Besides, it would be noticed that the relevant rules of IV-A refer notonly to professional misconduct but to other misconduct as well. An Advocateinvites disciplinary orders not only if he is guilty of professionalmisconduct, but also if he is guilty of other misconduct; and this othermisconduct which may not be directly concerned with his professional activityas such, may nevertheless be of such a dishonourable or infamous character asto invite the punishment due to professional misconduct itself. An illustrationis point would be the conviction of an Advocate for a criminal offence involvingmoral turpitude, though it may not be connected with his professional work assuch. Therefore, in dealing with the case of the Advocate before us, it wouldnot be right to take an unduly narrow view of the concept of moral delinquencyor turpitude but to concentrate on the broad issue as to whether by his conductproved in the present case he has not rendered himself unworthy to be a memberof the legal profession.

9. As early as 1894, Lopes L.J. attempted to give the definition ofmisconduct of a medical man in Allinson v. General Council of Medical Educationand Registration [1894] 1 Q.B. 750. In that case Lopes L.J. said :

'The Master of the Rolls has adopted a definitionwhich, with his assistance and that of my brother Davey, I prepared. I will readit again. 'If it is shown that a medical man, in the pursuit of his profession,has done something with regard to it which would be reasonably regarded asdisgraceful or dishonourable by his professional brethern of good repute andcompetency, then it is open to the General Medical Council to say that he hasbeen guilty of 'infamous conduct in a professional respect'.'

10. This definition was held applicable while dealing with the case of asolicitor In re A Solicitor Ex parte the Law Society [1912] 1 K.B. 302. Mr.Justice Darling quoted this definition and added 'that the Law Society arevery good judges of what is professional misconduct as a solicitor, just as theGeneral Medical Council are very good judges of what is misconduct as a medicalman.' With respect, we think the same observation can be made with equalforce about the Tribunal which has dealt with this matter and made its reportin the present case.

11. In the matter of An Advocate (1936) I.L.R. 63 Cal. 867, Mukerji,A.C.J., referred to the observations made by Page J.J. In the matter of AnAdvocate (1933) I.L.R. 12 Pan. 110 which showed that the learned ChiefJustice thought that 'in considering whether an advocate should be struckoff the roll of Advocates, the test should be whether the proved misconduct ofthe advocate is such that he must be regarded as unworthy to remain a member ofthe honourable profession to which he has been admitted and unfit to beentrusted with the responsible duties that an advocate is called upon to perform';and Mukerji, A.C.J., added that 'with all respect, I would prefer to takethe two conditions laid down as aforesaid disjunctively and apply the test inthat way so that on the fulfilment of any one of the conditions the test wouldbe regarded as satisfied.' In other words, according to Mukerji A.C.J.,misconduct which would render the Advocate liable to be removed from the rollscan be either professional misconduct or other misconduct, with the result thatin either case, the advocate ceases to be entitled to belong to the honourableprofession of law. The learned Judge also observed that this disjunctive testwould prove a sound working rule in the majority of cases and would beapplicable to all branches of the profession. It would be noticed that thewords used in the relevant rules of O. IV-A are professional or othermisconduct and that is on the same lines as the relevant provision in s. 10(i)of the Indian Bar Council Act, 1926 (38 of 1926).

12. Reverting then to the facts found by the Tribunal in this case, it isclear that the advocate was paid Rs. 60/- expressly for the purpose of filingthe bill of costs in time; that the delay made by him in presenting the bill ofcosts is so unreasonable that the negligence of which he is guilty must becharacterised as gross. The explanation given by the Advocate in justificationof this delay is clearly fantastic and untrue. The loss which would haveresulted to the client is of the order of Rs. 2000/- and it consists of an itemof costs awarded to him by this Court in dismissing the appeal filed againsthim. During the relevant period, his client was repeatedly enquiring as to whathad happened about the bill of costs, and the explanation given by the Advocatein that behalf has been rejected by the Tribunal and it must, therefore, betaken to be proved that despite the reminders, the advocate took no steps tofile the bill of costs in time. Even so the Advocate asked for and received Rs.200/- from Mr. Misra, the successor of Mr. Banamdar, on May 18, 1960, and asthe Tribunal has observed, this demand by the Advocate was wholly unjustified.Having regard to all these circumstances, we do not think it would be possibleto accept Mr. Sarjoo Prasad's contention that the Tribunal was not justified inmaking a finding against the advocate that he was guilty of professionalmisconduct.

13. The next question which we have to consider is : what would be theappropriate order to make in this case Fortunately, cases of professionalmisconduct are rare in this Court; but when they are brought to the notice ofthis Court and it is proved that the allegations made against an Advocate aretrue, it would be unwise and inexpedient for this Court to take a lenient viewof the lapse of the Advocate. The members of the Bar owe it to themselves andto the Court to live up to the best traditions of the Bar, and any seriouslapse on the part of any member of the Bar must be severely dealt with. Healthytraditions at the Bar help not only to make the Bar strong and respected, butrender valuable and effective assistance to the Courts to deserve and sustainthe absolute confidence and faith of the litigating public in the fairness ofthe administration of justice, for we must always remember that on the ultimateanalysis, the real strength of the administration of justice lies in theconfidence of the public at large. We are, therefore, reluctant to accede tothe plea made before us by Mr. Sarjoo Prasad that we should reprimand theAdvocate for his misconduct and pass no further orders against him. Havingcarefully considered all the relevant circumstances in this case, we aresatisfied that in the interests of the profession itself, it is necessary todirect that the name of the Advocate should be removed from the rolls for fiveyears. We also direct that the Advocate should pay the respondent's costs ofthe enquiry before the Tribunal and of the hearing before us. Before we partwith this matter, we ought to add that it has been conceded before us both byMr. Sarjoo Prasad and by the learned Solicitor-General that Part V of theAdvocates Act, 1961 (25 of 1961) has not still been brought into force and so,s. 50(4) of the said Act is still not applicable, and that means that thepresent proceedings have to be dealt with by the Court in accordance with theexisting law.


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