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Pragjibhai Kesurbhai Patel Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberMisc. Civil Appln. No. 1012 of 1972
Judge
Reported inAIR1976Guj8; (1975)GLR764
ActsAdvocates Act, 1961 - Sections 50(4) and 55; Legal Practitioners Act, 1879 - Sections 14; Bombay Pleaders Act, 1920 - Sections 25
AppellantPragjibhai Kesurbhai Patel
RespondentState of Gujarat and anr.
Appellant Advocate C.K. Patel, Adv.
Respondent Advocate C.V. Jani, Asst. Govt. Pleader
Excerpt:
.....attached to a senior advocate like shri joshi large sums of money came to be entrusted to him and shri joshi declares on solemn affirmation that the petitioner has scrupulously accounted for all the monies entrusted to him and that he has been quite diligent and industrious in his work. in the present case, however, having regard to the facts and circumstances mentioned earlier and having regard to the nature of the affidavits filed by the three senior respectable advocates of rajpipla, we feel safe in making a departure from this principle and in deciding this petition on the basis of the aforesaid three affidavits. we feel safe in relving on their affidavits. i need only refer to (1760) 1 wm bl 222. (king v greenwood), in which it was held that the striking off the roll was not to be..........at rajpipla as a clerk. for about last five years the petitioner had been working for advocate shri joshi in his capacity as a clerk. the affidavit sworn by shri joshi on 12th april 1972 shows that the petitioner has attended to the legal affairs entrusted to him to the entire satisfaction of shri joshi and that the petitioner has been found to be honest, upright and sincere in the discharge of his duties. in the course of his work as a clerk attached to a senior advocate like shri joshi large sums of money came to be entrusted to him and shri joshi declares on solemn affirmation that the petitioner has scrupulously accounted for all the monies entrusted to him and that he has been quite diligent and industrious in his work. this is what shri joshi has to say in this affidavit:- 'he.....
Judgment:

M.P. Thakkar, J.

1. The question which confronts the Court is whether a Pleader enrolled under the Bombay Pleader Act of 1920, hereafter called the 'Pleaders Act', who has been removed from practice can be reinstated under the general powers of superintendence exercisable by the High Court subsequent to the enforcement of the Advocates Act of 1961.

2. A few facts require to be mentioned in order to understand the Point at issue. The Petitioner, Pragjibhai Kesurbhai Patel, was practicing as a Pleader at Sinor in the Baroda District. It appears that one Mavjibhai Govindbhai a client of petitioner Pragjibhai made an application to the learned District Judge of Baroda under Section 26 of the Pleaders Act, Insurance of the report submitted by the learned District Judge the matter came up before a Division Bench of this High Court by way of Misc. Civil Appln No.293 of 1965. By an order D/- 8-3-1966 the Division Bench came to the conclusion that the petitioner was guilty of misconduct and that he was not a fit person to be retained on the roll of Pleaders. Accordingly he was removed from practice and it was directed that he should surrender his Sanad. This order was passed on March 8, 1966. The petitioner appears to have felt contrite and to have reformed him self. Though he was till then practsing as a Pleader, he joined the office of Shri Kantilal Ambalal Joshi, an advocate practising at Rajpipla as a clerk. For about last five years the Petitioner had been working for advocate Shri Joshi in his capacity as a Clerk. The affidavit sworn by Shri Joshi on 12th April 1972 shows that the petitioner has attended to the legal affairs entrusted to him to the entire satisfaction of Shri Joshi and that the petitioner has been found to be honest, upright and sincere in the discharge of his duties. In the course of his work as a Clerk attached to a senior advocate like Shri Joshi large sums of money came to be entrusted to him and Shri Joshi declares on solemn affirmation that the Petitioner has scrupulously accounted for all the monies entrusted to him and that he has been quite diligent and industrious in his work. This is what Shri Joshi has to say in this affidavit:-

'He has done utmost to make amends for his Previous misconduct and conducted himself honorably during the last years since he came in contact with me. I sincerely believe that he would justify clemency that may be shown to him and will act with integrity and honour and he deserves to be admitted to the rank of pleaders.'

Substantially to the same effect is the affidavit of advocate Shri Mahendrasinh Umangsinhji Mahida of Raidipla. The petitioner has been working for Shri Mahida for the last five years. Initially the petitioner had joined the office of advocate Shri Prahladbhai Pandva who died about 2 Years back. Thereafter he joined the office of Shri Mahida. Shri Mahida has also expressed the opinion that the Petitioner was found to be upright, honest and sincere and has discharged his duties to the entire satisfaction of Shri Mahida. He has also stated that in the course of his duties the Petitioner was entrusted with large amounts and that the petitioner has been found to be honest in his dealings diligent in his work and industrious. Shri Mahida has also expressed the opinion that if clemency is shown to the Petitioner, he would justify the trust reposed in him and that he deserves to be reinstated. He has expressed a high opinion about the integritv and honesty of the Petitioner. His affidavit is supported by the affidavit of Shri Umangsinhji Dolatsinhji Mahida who has also made similar statements in regard to the petitioner. The Petitioner has preferred this application for reinstatement supported by the aforesaid three affidavits.

3. Now, ordinarily in order to ascertain the suitability of the Petitioner at the Present moment we would have called for the opinion of the learned District Judge of the concerned district. In the present case, however, having regard to the facts and circumstances mentioned earlier and having regard to the nature of the affidavits filed by the three senior respectable advocates of Rajpipla, we feel safe in making a departure from this principle and in deciding this Petition on the basis of the aforesaid three affidavits. It is of importance to realise that Shri Joshi a leading senior advocate of Rajpipla, aged 68, with whom the petitioner has been working as a Clerk, has filed an affidavit in the terms mentioned earlier Human nature being what it is. one would not be very anxious to have a rival in one's own field of Practice. Therefore, there is if at all an in-built bias against swearing an affidavit merely to secure the reinstatement of the Petitioner who has been removed from practice as a Pleader. Even so, Shri Joshi, as is expected of a member of this noble profession has come forward and Placed before the Court the true facts as regards the conduct of the Petitioner as noticed by him in the course of his employment for the last five years as a Clerk. Same is the case with regard to the affidavit of Shri M. U. Mahida. We feel safe in relving on their affidavits.

4. The question then is whether we have the powers to reinstate the Petitioner having regard to the opinion formed by us that the petitioner has atoned for his Past misconduct, has now turned a new leaf and has conducted himself with honesty and integrity. Even for hardened criminals an. approach of understanding is usually made with a view to reform them. Under the circumstances obtaining at the material time the petitioner committed an act of misconduct and was found guilty therefore For the last eight years one who was Practising as a full-fledged Pleader has worked as a Clerk of an advocate and in that capacity he has shown honesty, integrity and uprightness. It is shown by his conduct that he has withstood all the temptations and has benefited from the Punishment imposed on him. Having already attended sufficiently for his Past misdeeds he deserves to be reinstated in case we have such Powers. We will, therefore, proceed to examine the question whether we have such powers.

5. The learned Assistant Government Pleader appearing for the State has in his fairness assumed the Posture that having regard to the settled law the Court has the jurisdiction in exercise of its general powers of superintendence to reinstate the Petitioner under the Pleaders Act. That the Court does have such powers cannot be disputed having regard to the decision of a Division Bench of the High Court of Bombay in the matter of an Advocate AIR 1937 Bom 48. This is what the High Court has observed in this connection :-

'The first question is whether this Court has jurisdiction to reinstate a Pleader after he has been struck off the Roll. I entertain no doubt on that question. It is clear from the authorities that the Court has and must have the Power to reinstate a Pleader even though the Court for Professional misconduct had struck him off the Roll. I need only refer to (1760) 1 Wm Bl 222. (King v Greenwood), in which it was held that the striking off the Roll was not to be understood as a perpetual disability, but was sometimes only meant as a Punishment and might be considered in the light of a suspension only, if the Court saw good cause. In (1845) 1 NPC 330 (In re Pvke). Cockburn. C. J. observed that both on principle and Precedents sentences of exclusion from either branch of the Profession need not necessarily be exclusion for ever.'

The learned Assistant Government Pleader, however, called our attention to the provisions of the Advocates Act. Now, Section 55 of he Advocates Act of 1961 makes a Provision in regard to rights of legal Practitioners who immediately before the date of the enforcement of Chapter IV of the Act were Practising as Pleaders or vakils under the provisions of the Legal Practitioners Act, 1879 or the Bombay Pleaders Act, 1920, This section section 55 Provides that notwithstanding the repeal of the aforesaid two Acts namely, the Legal Practitioners Act. 1879 and the Bombay Pleaders Act, 1920 the persons Practising as pleaders or vakils, as the case may be, continue to enjoy the same rights as respects Practice in any Court or revenue office or before any authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed or as the case may be, to which he was subject immediately before the said date and accordingly the relevant Provisions of the Act or law aforesaid shall have effect in relation to such Persons as if they had not been repealed. It is, therefore, abundantly clear that notwithstanding the repeal of the aforesaid two Acts in so far as persons who were Practising before the enforcement of Chapter IV of the Advocates Act as Pleaders and vakils were concerned, they continued to be subject to the provisions of the two repealed Acts and that the said Acts were kept alive to the limited extent in so far as they were concerned. And the powers exercisable by the High Court have been saved under this provision notwithstanding the repeal, enamel, the powers which were enjoyed by the High Court in exercise of its disciplinary jurisdiction when the aforesaid two Acts were in force. Importance of the expression 'continue to enjoy the same rights and 'be subject to the disciplinary jurisdiction of the same authority' cannot be over-emphasized for it clearly shows that rights hitherto enjoyed by him were in terms kept alive albeit subject to the obligations to which he was subject. There is no manner of doubt, therefore, that the powers of superintendence exercisable by the High Court in the context of the Legal Practitioners Act and the Bombay Pleaders Act are not affected by any Provision contained in the Advocates Act Particularly having regard to the clear language employed by the Legislature in Section 55 of the Advocates Act. This stands to reason for with regard to the Persons who were previously practicing under the Bombay Pleaders Act and the Legal Practitioners Act, the authorities constituted under the Advocates Act would have no jurisdiction. Therefore. the jurisdiction hitherto enjoyed by the High Court in exercise of its general powers of superintendence would continue to govern the persons Practising as pleaders or vakils in pursuance of the transitional Provisions embodied in Chatter VII of the Advocates Act and more particularly Section 55 of the said Act.The High Court, therefore, continues to possess the same powers as hither to namely, the Powers to exercise diciplinary jurisdiction in appropriate cases as also the concomitant power to reinstate in appropriate cases.

6. Having regard to the opinion expressed by us earlier that the Petitioner appears to us to have made appropriate atonement for his past acts and now appears to have turned a new leaf and conducted himself in a manner wherein trust can be reposed in him, he deserves to be reinstated.

7. We accordingly direct that the Petitioner shall be reinstated as a Pleader under the Bombay Pleaders Act and the sanad surrendered by him shall be restored to him. There will be no order regarding costs.

8. Order accordingly.


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