1. This is a complaint by the petitioners Mahaveerchand and Shantichand of Jodhpur through their Aam-mukhtar Rajmal for professional misconduct against Shri Bhanwarlal, an advocate practising at Barmer.
2. The allegations on which the complaint is founded may be briefly stated as follows. It is alleged that the petitioners (who were decree-holders) had initiated proceedings under Ss. 78 and 79 of the Marwar Tenancy Act against Thakur Himmatsingh of Jasol (judgment-debtor) with respect to the income of certain villages as the tenants were recalcitrant and had declined to pay the Hasil.
Consequently, Shri S.N. Modi, standing counsel of the petitioners, along with Rajmal, and Surajrnal another Aam-mukhtar of the petitioners, went to Barmer to engage counsel to conduct the proceedings on behalf of the petitioners and briefed the respondent Shri Bhanwarlal. It was alleged that Shri Sultan-mal pleader was also engaged to assist Shri Bhanwarlal.
One Rughnathmal was in due course appointed as an Ameen by the Tehsildar to realise the Hasil but his remuneration was not fixed by the Tehsildar. This Ameen is alleged to have made a total realisation of Rs. 2526/87-from the tenants of the jagirdar, and out of this amount the Ameen deducted a sum of Rs. 427/8/- on account of his pay and travelling and other expenses, and produced the balance of Rs. 2099/- in the Court on 17th July 1955.
Shri Bhanwarlal then having presented an application on behalf of the petitioners for the receipt of this amount, the Tehsildar ordered it to be paid to him and Shri Bhanwarlal actually received it. Shri Bhanwarlal admittedly deducted a sum of Rs. 388713/- out of the aforesaid amount. The amount of Rs. 388/13/- consisted of two items (1) Rs. 257/13/- which Shri Bhanwarlal is said to have paid to the Ameen on 23rd May. 1955, and (2) Rs. 131/- which Shri Bhanwarlal further paid to the latter on 18th July, 1955, as the balance of the remuneration which remained due to him.
For the balance Shri Bhanwarlal sent a cheque of Rs. 1710/3/- to the petitioners. The grievance of the petitioners is that Shri Bhan-warlai did not pay the aforementioned sums totalling Rs. 388713/- to Ameen Rughnathmal and that he had misappropriated the money,. and in order to obtain wrongful gain for himself, he had manufactured the story of having made these payments to the Ameen from his. own pocket.
It was further contended that even if the alleged payments had been made, they were made without the petitioners' permission and without the order of the Tehsildar, and, consequently, the respondent was guilty of bad faith. or of grossly negligent conduct in the discharge-of his professional duties towards the petitioners.
It was suggested that the respondent should have informed the Tehsildar that he had already paid a sum of Rs. 2577137- to the-Ameen, or for that matter, that a further amount of Rs. 1317- was going to be paid to him and should have asked for adjustment of the monies paid to the Ameen against the bill of Rs. 427787- which the latter drew out of the total amount collected by him, namely, Rs. 252678/-.
3. This complaint was referred under the order of the Chief Justice to a tribunal of the-Bar Council. The report of the tribunal is before us. The learned members of the tribunal have come to the conclusion that no case of professional misconduct has been established against the respondent Shri Bhanwarlal, although in the opinion of the learned members it might be said that
'Shri Bhanwarlal should have been more cautious and alert and should have contacted the clients before hastening to make the payment to the Ameen, and had he been so, he would not have been dragged into these proceedings of professional misconduct.'
The charges framed by the Bar Council were two in number. The first charge, briefly put was that instead of remitting the full amount to the petitioners, Shri Bhanwarlal had sent Rs. 1710/3/- only by a cheque dated 19th July, 1955, and retained and appropriated the balance of Rs. 388/13/- in an unauthorised manner and that to cover up this act of his, he manufactured the story of having made two payments totalling Rs. 388/13/- to the Ameen when in fact no such payments had been made to the latter.
The second charge was that alternatively and in the event that Shri Bhanwarlal had made the payment of Rs. 388/13/- to Ameen Rughnathmal, such payments had been made by Shri Bhanwarlal without any order of the Court, and that he had acted carelessly and negligently in not objecting to the deduction of Rs. 427/8/- by the Ameen on 14th July. 1955, on account of his pay, expenses, etc., and that he should have informed the Tehsildar that the Ameen had already been paid a sum of Rs. 257/13/-, and that similarly Shri Bhanwarlal had acted negligently in making the payment of Rs. 131/- on 18th July, 1955, and consequently,, he had made himself open to the charge of professional misconduct punishable under Section 10 of the Bar Councils Act.
4. Shri Bhanwarlal denied the charges. Briefly put, his defence is that the payments, made by him to Ameen Rughnathmal were in accordance with the verbal agreement which had been arrived at between him and the Ameen on the one side and the standing counsel Shri S.N. Modi and the Aam-mukhtars of the petitioner, namely, Rajmal and Surajmal on the other, and that this arrangement was that the Ameen would have to be given a pay of Rs. 150/- P.M. along with his boarding and lodging and travelling expenses, and he would also be allowed to engage a camel Sowar and a peon to remain with him and for these extra payments would have to be made.
It is urged that the area where the Ameen was required to work was an extremely difficult one and that the previous Ameen Rajmal who was deputed to do this work and was appointed on a pay of Rs. 100/- P. M. had not been able to collect anything whatever, and so it was agreed between the accredited representatives of the petitioners and Ameen Rughnathmal that the latter would receive the aforementioned emoluments, and whatever he should be able to get from the Tehsildar's court would be adjusted against the amount thus due and payable to the Ameen.
The respondent produced the accounts which had been handed over to him by the Ameen Exs. D-13, 1 to 6 which show that he had incurred a total expenditure of Rs. 966/5/- for the entire period during which he worked from 20th April, 1955, to 18th July, 1955, including his own pay at the rate of Rs. 150/- P.M. and the pay of a camel Sowar and a peon, and his own boarding and travelling expenses.
As against this amount, it was contended that the sum of Rs. 427/8/- was drawn directly by the Ameen on 17th July, 1955, and so the balance of Rs. 538/8/- was still payable to the Ameen. Of these Rs. 150/- were admittedly paid by the Aam-mukhtar Surajmal to the Ameen in instalments, the first instalment of Rs. 757- having been paid on 19th April, 1955, at Barmer, the second of Rs. 25/- paid at Jodh-pur on 25th April, 1955, and the last one of Rs. 50/- also paid at Jodhpur on 14th June. 1955.
This left a balance of Rs. 388/13/-. Out of this, the respondent alleges to have paid the sum of Rs. 257/13/- on 23rd May, 1955, and the remaining balance of Rs. 131/- was accounted for on 18th July, 1955. The contention of the respondent thus is that the entire payments which had been made to Ameen Rughnathmal were in accordance with the private arrangement arrived at between the parties concerned, and that that being so, the charge of misappropriation of any amount against him was entirely unfounded, and further that he was justified in not bringing to the notice of the Tehsildar the payments which had been privately made as they did not exceed thelimit of the total charges which were payableto the Ameen.
5. We have heard learned counsel for the petitioners and the respondent Shri Bhanwariai in person and have also perused the-report of the Bar Council Tribunal. We are satisned on the material which is on this record that so far as the charge of the respondent having not paid the two amounts of Rs. 257/13/- and Rs. 131/- total Rs. 388/13/- to-Ameen Rughnathmal goes, it is not at all established.
Ameen Rughnathmal has himself come into the witness box and accepted that these payments had been made to him. Shri Bhanwarlal has also produced the relevant receipts Exs, D-4 and D-5, and the accounts Exs. D-13, 1 to 6 in support of his case. Consequently, we exonerate Shri Bhanwarlal completely so far as this charge is concerned.
6. It now remains to see whether the second charge is established against the respondent. That charge in substance is that the respondent should not have paid the amounts of Rs. 257/13/- and Rs. 131/- to Ameen Rughnathmal and that, in any case, the former should have brought to the notice of the Tehsildar the payment already made or to be made by him to the Ameen and these should have been asked to be adjusted against the amount of Rs. 427/8/- drawn by the Ameen out of the amount of Rs. 2526/8/- collected by him from, the tenants of the jagirdar.
The answer to this question depends upon whether the version put forward by the respondent as to the private arrangement which, has already been adverted to above, has any truth in it. The witnesses produced by the petitioners including Shri S.N. Modi their standing counsel denied that such a private arrangement was ever come to between them and Shri Bhanwarlal and Ameen Rughnathmal. Shri Bhamvarlal in his own evidence, and his witnesses Sultanmal pleader and Rughnathmal Ameen equally stoutly maintain that such an arrangement had been mutually agreed between the parties.
7-8. (Their Lordships then considered the evidence in the case and continued as under:) Having regard to this state of affairs, we consider that there is truth in the version put forward by Shri Bhanwarlal that there was some kind of a private arrangement agreed to between the parties that Ameen Rughnathmal was to receive emoluments over and above what he was to get from the Court as his expenses.
This theory seems to be probable also because it is admitted before us on either side that there were no rules governing payments to Ameens in such cases under the Marwar Tenancy Act, and it was not known precisely what remuneration would be sanctioned by the Court to be paid to the Ameen.
It may be mentioned in this connection that great stress was laid before us on the circumstance that the petitioners are being made to shoulder an expenditure of Rs. 966/5/,-as Ameen's expenses for recovering the amount of Rs. 2526/8/-, and that nobody in the petitioners' position could nave 'greed to pay such a fantastic sum for the recovery of acomparatively small amount.
The Ameen's bill does sound rather tall; but as no recoveries had at a11 been made in pursuance of the efforts which the petitioners had been making through their own man Rajmal, they might have been inclined to pay the Ameen handsomely to induce him to make earnest efforts to realise the money due to them.
It may be that this was a case where the petitioners through their Aam-mukhtars were .anxious to enter into arrangements (not minding' the cost so much) which would enable them to recover their money, and so they were prepared to engge Ameen Rughnathmal on his own terms, and, for aught we know, they might have left his remuneration more or less in the hands of Shri Bhanwarlal.
In such circumstances, the petitioners appear to us to have lain low until their money was recovered, and did not think it expedient to raise any objection to the payment of Rs. 257/13/- made by Shri Bhanwarlal to the Ameen. But after the money had been recovered from the tenants of the Jagirdar, the petitioners then turned round and questioned the payments which had, in the meantime, been made by Shri Bhanwarlal out of his own pocket.
Be that as it may, we are unable to hold in the circumstances mentioned above that Shri Bhanwarlal had made the payments in question to Ameen Rughnathmal entirely without authority and in bad faith or with such negligence or lack of care or caution that we should hold him guilty of professional misconduct.
We feel satisfied that some kind of a private arrangement had been agreed to between the Aam-mukhtars of the petitioners on the one hand and Ameen Rughnathmal and Shri Bhanwarlal on the other as regards the remuneration to be paid to the Ameen and the men who were to be engaged for him, although what precisely the terms were to be may be a matter on which there may be room for difference between the petitioners and Shri Bhanwarlal. But as we feel persuaded to believe that the story put forward by Shri Bhanwarlal is not without substance, we are clearly of opinion that the second charge should fail, and we hold accordingly.
9. Before we part with this case, WP desire to point out that while we have held that no charge of professional misconduct has been established against Shri Bhanwarlal on either of the two charges we do not approve of the practice by which counsel may place themselves in the position in which Shri Bhanwar-lal allowed himself to be placed in the present case.
As we view the relationship of counsel and Client, we think that it is not at all the duty Of counsel to place himself in the position ofa banker for his client. It is doubtless the duty of a client, as it must be, to place his counsel in funds for properly carrying on the proceedings for which the counsel stands engaged.
From this it follows that, generally speaking, counsel need not and should not spend money out of his own pocket for his clients,' and should be careful not to identify himself with his clients in this regard. We may conceive of certain exceptional circumstances where under counsel may, with some justification, incur certain unavoidable expenditure of small and limited value for a client in cases of real emergency, or on other occasions under clear and distinct authority from the client.
But such rare or exceptional cases apart, we are clearly of opinion that members of the legal profession should keep themselves at a' respectable distance from their clients in such matters, because if they do not observe suck restraint, complications, are bound to arise, and the noble traditions and the high standards which members of this privileged profession are expected to maintain, are put in jeopardy.
We are fully conscious that it is the duty: of counsel to safeguard the interests of his' clients; but this duty does not and cannot enure in the sense that he should identify himself with his clients' financial obligations and make payments on their behalf out of his own pocket so that he is later reduced to the necessity of reimbursing himself for such expenditure out of the monies of his clients coming into his hands and place himself in an embarrassing position.
The position is indeed well established that when monies of a client come into the hands of his counsel otherwise than as his earmarked fees, he is in the position of a trustee for his client in respect of the said monies. It is also true that he may have a lien on such monies for his fees, but even so he cannot exercise that lien except under stringent conditions. See In re 'M', an Advocate, (S) AIR 1957 SC 149 (A).
But it is clear that in the case before us Shri Bhanwarlal's fee had already been paid to him and therefore no such question arose. What Shri Bhanwarlal was doing in this case was to reimburse himself for certain expenditure which he had himself incurred in compliance with a private arrangement arrived at between him and the Aam-mukhtars of the petitioners, and the situation would have indeed been different if we were not satisfied of the truth of the story about this private arrangement.
Again as held by us in a case of our own Court Ramratan v. Shridhar, (S) AIR 1957 Raj, 7 (B), in the matter of the monies of a litigant in the hands of his counsel, the latter must act in an honest, upright and straight-' forward manner, and all expenditure incurred by him for and on behalf of his client out of such monies must be duly accounted for, and the withholding of such monies or their mis-application will clearly amount to professionalI misconduct.
We have no hesitation in saying that the observance of these salutary principles will be gravely impaired where counsel incurs expenditure on behalf of his client out of his own pocket and later seeks to reimburse himself for such expenditure out of the monies received by him for his client. On a careful consideration of the whole matter, we are definitely of the view that members of the legal profession should for their own safety and in the good name of their great profession steer clear of such situations.
10. According to the principles discussed by us above, the correct conduct of Shri Bhan-warlal, in the circumstances in which he had been placed was, instead of giving the money to the Ameen from his own pocket, to have in-formed his clients that they must place the former in funds to pay the Ameen, or firmly leave the matter of payment to the Ameen in the hands of the petitioners, and leave the Ameen and the petitioners to themselves, and the result of such a step would have been either that the petitioners would have arranged to pay according to such agreement as might have been arrived at between the parties either through Shri Bhanwarlal or to the Ameen direct, or the arrangement would have fallen through; but, in any case, Shri Bhanwarlal would have done everything to safeguard his clients' position without at the same time compromising his own or the high standards and the traditions of the profession to which he has the privilege to belong.
11. With these observations, we dismissthis complaint but without any order as tocosts.