Skip to content


M.S. Krishnaswami Vs. the Council of the Institute of Chartered Accountants of India - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. No. 5035 of 1952
Judge
Reported inAIR1953Mad79; [1953]23CompCas68(Mad); (1952)2MLJ646
ActsConstitution of India - Article 133(1); Chartered Accountants Act, 1949 - Sections 21(2); Code of Civil Procedure (CPC) , 1908 - Sections 109
AppellantM.S. Krishnaswami
RespondentThe Council of the Institute of Chartered Accountants of India
Appellant AdvocateN. Rajagopala Iyengar, Adv. for ;S. Swaminathan, Adv.
Respondent AdvocateR. Ramamurthy Iyer, Adv.
DispositionPetition dismissed
Cases ReferredAiyar v. Swaminatha Aiyar
Excerpt:
chartered accountants act (xxxviii of 1949), section 21 read with constitution of india, articles 133 and 134--proceedings under section 21--not civil proceeding within article 133--not open to appeal--jurisdiction under section, disciplinary--appeal--right of--date of commencement of proceeding--crucial date--code of civil procedure (act v of 1908), section 109(c)--right of appeal under--subject to article 133.;orders passed by the high court under section 21 of the chartered accountants act (xxxviii of 1949) are not open to appeal to the supreme court.;proceedings taken under that section are not civil proceedings within the meaning of article 133(1)(c) of the constitution of india. according to the scheme that has been adopted in the constitution, there may be proceedings which are.....1. this is an application for leave to appeal to the supreme court against the order passed by this court in refd. case no. 56 of 1951. messrs. m.s. krishnswami and jagannathan are a firm of chartered accountants and they were the auditors of a company called the amalgamated coffee estates ltd., during the years 19-10-1947 and 1948. on 5-7-1050 messrs. devar and sons ltd. preferred a complaint to the council of the institute of chartered accountants that the auditors; had passed balance sheets which "did not exhibit a true and correct view of the state of affairs of the company and were calculated to mislead whomsoever it concerned, more espceially the debenture holders of the company."the complainants held considerable debentures in the company. on receipt of the complaint, the council.....
Judgment:
1. This is an application for leave to appeal to the Supreme Court against the Order passed by this Court in Refd. Case No. 56 of 1951. Messrs. M.S. Krishnswami and Jagannathan are a firm of Chartered Accountants and they were the auditors of a company called the Amalgamated Coffee Estates Ltd., during the years 19-10-1947 and 1948. On 5-7-1050 Messrs. Devar and Sons Ltd. preferred a complaint to the Council of the Institute of Chartered Accountants that the auditors; had passed balance sheets which "did not exhibit a true and correct view of the state of affairs of the company and were calculated to mislead whomsoever it concerned, more espceially the debenture holders of the company."

The complainants held considerable debentures in the company. On receipt of the complaint, the Council obtained the explanation of the petitioner who was the partner concerned with the balance sheets and sent the matter to the Disciplinary. Committee for enquiry. The Committee took evidence and recorded a finding that the charges against the petitioner had been made out and that he was guilty of "acts and omissions", which rendered him "unfit to be a member of the Institute."

On this finding, the matter came up before this court for hearing under Section 21(2) of the Chartered Accountants Act (XXXVIII of 1949). By our order dated 22-4-1952. we held that the balance sheets were defective and misleading and that the petitioner was grossly negligent in the discharge of his duties. We accordingly passed an order that he be removed from the rolls for a period of two years. The petitioner applies for leave to appeal to the Supreme Court against this order. The application is opposed by the respondent both on the ground that the order dated 22-4-1952 is not open to appeal and on the ground that even if an appeal was competent, this was not a fit case for granting of leave. The question whether orders passed under Section 21 of the Chartered Accountants Act are open to appeal to the Supreme Court comes up for determination for the first time and it has been fully argued before us by learned Counsel on either side. After considering the matter deeply we have come to the conclusion that the' order in question is not open to appeal and that this petition must be dismissed.

2. Mr. N. Rajagopalan, the learned advocate for the petitioner argues that there is a right of appeal against the order dated 22-4-1952 under Article 133(1)(c) of the Constitution, which is in these terms:

"An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies that the case is a fit one for appeal to the Supreme Court."

3. For this article to apply, the order must have been passed in a civil proceeding and the question that has been debated before us is whether the proceedings under Section 21 of the Chartered Accountants Act are civil proceedings within the meaning of this Article. The argument for the petitioner is that whatever is not a criminal proceeding must be a civil proceeding; that Article 134 provides for appeal against orders passed in criminal proceedings and that all other orders must be held to have been passed in civil proceedings and that they will be open to appeal under Article 133. A classification of proceedings into two categories mutually exclusive and together exhaustive such as civil and criminal proceedings would be quite intelligible. But the question that has to be decided is whether that is the scheme that has been adopted in the Constitution. An examination of the relevant provisions does not lend any support to that position. Article 132 enacts that appeals -shall lie from judgments, decrees or orders of a High Court "whether in a civil, criminal or other proceeding" if the cases involve a substantial question of law as to the interpretation of the Constitution. This is a dear indication that there may be proceedings which are neither civil nor criminal.

Article 133 provides for appeals against orders passed in civil proceedings and Article 134 against orders passed in criminal proceedings. Article 135 reserves the jurisdiction and powers of the Supreme Court in matters not falling within Article 133 or 134, if the Federal Court had jurisdiction over such matters at the time of the Constitution. Article 136(1) provides that,

"Notwithsanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India."

4. While Articles 133 and 134 are limited to orders passed in civil or criminal proceedings, the jurisdiction of the Supreme Court to grant special leave extends to orders passed "in any cause or matter by any court or tribunal." The articles, therefore, clearly contemplate that there may be proceedings other than civil and criminal and that in respect of such other matters, the governing provisions are Articles 135 and 136. It is also noteworthy that the words used in Article 136 are "cause or matter" which are of very wide import, as observed by the Supreme Court in -- Pritam Singh v. the State', 1950 Section C. R. 453 at page 458, and --'Bharat Bank Ltd. Delhi v. Employees of Bharat Bank Ltd. Delhi', 1950 SCR 459.

In -- 'Tobacco Manufacturers (India) Ltd. v. The State', SO Pat 174 (PB), the point arose for decision as to whether a determination by the High Court on a reference under Section 21(3) of the Bihar Sales-tax Act, 1944, was open to appeal to the Supreme Court under Article 133. The case was heard in the first instance, by Reuben and Das JJ. who held that the order was not one which was passed in a civil proceeding within the meaning of Article 133. But, there being a difference of opinion as to whether the determination amounted to a judgment within the meaning of that article, the matter was referred to a Full Bench. On the. question whether the order was one passed in a civil proceeding, the majority of the Judges, Sarjoo Prasad and Rai JJ. rejected the argument of the petitioner that a civil proceeding means and includes all proceedings except those that are criminal, referred to the decisions under the Income-tax Act in which it had been held that an order passed by the High Court on a reference, under Section 68 was not open to appeal to the Privy Council and held that the contention that all proceedings which were not criminal were civil was not warranted by" the terms of Articles 132 to 136. Shearer J. took a contrary view. In -- 'Zikar v. State'. AIR 1952 Nag 130 at pages 131-132, the question arose for decision whether a conviction for contempt of court was appeal able under Article 134. A Bench of the Nagpur High Court held that proceedings for punishing for contempt were a special jurisdiction "of an anomalous nature" and "suis juris" (sic) and proceeded to observe, "Further it would appear that the Constitution has not made in Part V an exhaustive division of all proceedings before this court into two broad categories, civil and criminal. A glance at Clause (1) of Article 132 dispels any such suggestion. There the expression 'other proceeding' is mentioned in addition to the words 'civil' and 'criminal'".

5. We are in agreement with the views expressed by the majority Judges in--'Tobacco Manufacturers (India) Ltd. v. The State', 30 Pat 174 (FB) and -- 'Zikar v. State', AIR 1952 Nag 130 that there may be proceedings which are neither civil nor criminal within the meaning of Article 133 arid Article 134 and that, therefore, it cannot be affirmed that every order passed in proceedings other than criminal is open to appeal under Article 133 as made in a civil proceeding.

6. The larger ground failing, the learned Advocate for the petitioner argues that disciplinary proceedings are civil proceedings within the meaning of Article 133 and relies on the decisions in -- 'Bahadurlal v. Judges of the High Court, Allahabad', AIR 1933 All 13, --'In re R, a pleader', 55 All 246: AIR 1933 All 225; in -- 'S. an advocate v. Judges of the High Court of Allahabad', 56 All. 702: A. I. R. 1934 All 898 and in -- 'P, a pleader, Bansi v. Judges of the High Court of Allahabad', AIR 1937 All 167. Before dealing with these decisions, it will be convenient to refer to the authorities of this court bearing on this question. In -- 'K.R. Ramachandra Aiyar v. The President of the Vakils' Association, High Court, Madras', 39 Mad 123, the facts were that the High Court had passed an order suspending a vakil for a period of three months. The petitioner applied for leave to appeal to the Privy Council against that order. It was held that orders passed in disciplinary proceedings were not appeal able under Clause 39 of the Letters Patent and the decisions in -- 're An Attorney' 11 Cal 734 and -- 'G. S. D. v. Govt. Pleader', 32 Bom 106 were followed. In -- 'In the matter of E. Raghava Reddi, High Court Vakil, practising at Nellore, 43 Mad L J 382 (FB), the question was again considered by a Full Bench of live Judges. They held that the order of suspension passed in exercise of a disciplinary jurisdiction was not open to appeal. The following observations in the judgment of the learned Chief Justice might be quoted:

"In my judgment this matter is so far concluded by authority that it would not be possible without a decision of the Privy Council to the contrary to say that there is power in the High Court o Madras to grant leave to appeal to Privy Council in a case where an order is made by the court suspending a vakil from practice."

Reliance was also placed on a decision of the Patna High Court reported in -- 'Bir Kisore Roy v. Emperor', 4 Pat LJ 423. In that case a pleader had been suspended by the High Court in the exercise of its jurisdiction under the Legal Practitioners Act. In an application by the petitioner for leave to appeal to the Privy Council against the order of suspension, Dawson Miller C. J. after observing that there was no right of appeal provided by the Legal Practitioners Act, went on to discuss whether such- a right was conferred by the Letters Patent. He observed:

"Clauses 9 to 27 of the Letters Patent deal with the different classes of jurisdiction which are conferred on the High Court. They are civil, criminal, Admiralty, Testamentary and Intestate and Matrimonial jurisdiction, Appellate and Original. The next three clauses deal with the procedure, and clauses 31 to 34 deal with appeals to the Privy Council. In my opinion, the clauses dealing with the right of appeal to His Majesty in Council were meant to be confined to the different classes of jurisdiction above enumerated and not to the administrative or disciplinary powers conferred on the court by earlier clauses in the Letters Patent or by a Statute, The use of the word 'jurisdiction' in Clause 31 clearly seems to indicate that the appeals referred to are appeals from judgments, decrees, and orders passed in the exercise of one or other of the classes of jurisdiction conferred by clauses 9 to 27 where the word 'jurisdiction' is used."

7. The learned Chief Justice then referred to the decision in -- 'Re 'James Minchin', 4 Moo Ind App 220 (P. C.), where the question raised was whether the dismissal of the Master on the Original Side of the High Court under the powers conferred by the Charter on charges of misconduct was open to appeal to the Privy Council and it was held that it was not, notwithstanding that the terms of the, Charter provided for an appeal against determinations "in any civil cause". The learned Chief Justice observed that the jurisdiction conferred by Clause 31 of the Letters Patent corresponding to clause 39 of the Letters Patent of this Court was not wider than that conferred by the clauses in the Madras Charter. In the result, it was held that there was no right of appeal against orders passed in exercise of" disciplinary powers whether under the Letters Patent or under a Statute. On this reasoning which was approved by the learned Chief Justice in -- In the matter of Mr. E. Raghava Reddi, High Court Vakil, practising at Nellore', 43 Mad L 3 382 it would follow that disciplinary jurisdiction is a special jurisdiction conferred on the court and an order passed therein would not be open to appeal as an order passed in a civil proceeding. The question was also considered by the Rangoon High Court in the case reported in -- 'In the matter of an advocate', 8 Rang 40. The appeal ability of orders passed in exercise of disciplinary jurisdiction was considered both with reference to the provisions of the Civil Procedure Code and the Letters Patent. It was held that the provisions of the Civil Procedure Code would have no application to these proceedings which "were in the nature of a purely disciplinary enquiry" and that the appeal would be incompetent under the Letters Patent as well.

8. We shall now consider the decisions of the Allahabad High Court relied on by Mr, N. Rajagopalan in support of the position that orders passed in the exercise of disciplinary jurisdiction would be appeal able under Section 109(c) of the Civil Procedure Code. In -- 'Bahadurlal v. Judges of the High Court, Allahabad', AIR 1933 All 18, leave to appeal to the Privy Council against an order suspending a practitioner was granted under Section 109(c), the Court observing,

"It appears that this High Court has on previous occasion treated such application as falling under Section 109(c) C. P. C. and granted leave in fit cases. The words of that Section are no doubt general and leave to appeal from any order is allowed when the case is certified to be a fit one for appeal to His Majesty in Council."

There was no discussion of the question and no reference to the authorities of the other courts where a different view had been taken. This decision was followed In -- 'In re R. a pleader', 55 All 246: AIR 1933 All 225, wherein after stating that,

"The learned Government advocate has drawn our attention to several decisions of different High Courts, one from Patna, another from Madras and a third from Calcutta where it was held that in the case of an Advocate or Attorney being suspended from practice, the High Court was not authorised to grant leave to His Majesty in Council"

the learned Judges observed:

"In view of the fact that the practice of this court has been consistent, we do not propose to depart from that practice and we hold that leave may be granted under Section 109(c) C. P. C. We may point out that if leave cannot be granted under that section of the Civil Procedure Code, it may be granted under Section 30, Letters Patent".

In -- 'S, an advocate v. Judges of the Allahabad High Court', 56 All 702: AIR 1934 All 898, the question was discussed more fully. Referring to the decisions in -- 'In the matter of E. Raghava Reddi', 43 Mad L J 332 and -- 'Bir Kishore Roy v. Emperor', 4 Pat L J 423 the court observed:

"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, Letters Patent must mean only Civil, Criminal, Admiralty, Testamentary, Intestate & 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."

9. Having expressed the view that the appeal to the Privy Council might be incompetent under the terms of the Letters Patent, the court proceeded to hold that Section 109(c) was wide enough to confer a right of appeal in such cases and support for this view was found in the provisions of the Bar Councils Act, 1926 and particularly in Section 13(4) of that Act which runs as follows:

"Proceedings before a Tribunal or a District court in any such enquiry shall be deemed to be civil proceedings for the purposes of Section 132 of the Indian Evidence Act 1872, and the provisions of that section shall apply accordingly."

10. This decision was followed in -- 'P, a pleader, Bansi v. Judges of the High Court of Allahabad', AIR 1937 All 167. It will thus be seen that the authorities of the Allahabad High Court are largely based upon the practice of that court and if that is to be the guiding principle, we would be bound to follow the settled practice of this court and hold that no appeal lies against orders passed in the exercise of disciplinary jurisdiction. That was the position taken in the Full Bench decision in --'In the matter of Mr. 'E. Raghavareddi', 43 Mad L J 382 and the case for following ' cursus curiae' is now, if anything, stronger.

11. It was argued for the petitioner that whatever might have been the position where disciplinary action is taken in exercise of inherent jurisdiction, where such a jurisdiction is conferred by a Statute, the proceedings become impressed with the character of civil proceedings and Article 133 will apply to them. We are unable to agree with this contention. We fail to see how the right of appeal can depend on whether the order was passed in exercise of a jurisdiction which is inherent in the court of a jurisdiction which is conferred by ,a Statute on the court. If there is a right of appeal only against orders passed in civil proceedings, the determination of this right must depend on the nature of the jurisdiction that is exercised and not on the source of authority which confers that jurisdiction. In fact the decision in -- 'Bir Kishore Roy v. Emperor', 4 Pat L J 423, is with reference to an order passed under the special jurisdiction conferred by the Legal Practitioners Act and the court held that the appeal to the Privy Council was incompetent whether the disciplinary jurisdiction was exercised under the clauses of the Letters Patent or under a Statute.

Reliance is placed on the observations in --'S, an advocate v. Judges of the Allahapad High Court', 56 All 702. where it was held that the disciplinary jurisdiction conferred on the High Court by the Bar Councils Act was a civil proceeding. For the reason already given, we are unable to agree that the conferment of disciplinary jurisdiction by a Statute has any bearing on the nature of the proceedings. Nor are we impressed by the argument that Section 13 (4) of the Bar Councils Act is a legislative declaration that it is a civil proceeding. It merely enacts that the proceedings under the Act shall be deemed to be civil proceedings for the purposes of Section 132 of the Evidence Act. A thing is deemed to be something only when it is not that and the true import of the provision in the Act is that proceedings under the Act are not civil proceedings, but that for the limited purpose of the applicability of Section 132 of the Evidence Act they should be treated as if they were civil proceedings. In the Chartered Accountants Act there is not even a similar provision. We are of opinion that the jurisdiction conferred on this court under Section 21 is only a disciplinary jurisdiction and that it is not a civil proceeding.

12. Another contention of the petitioner similar to the one just disposed of was that the jurisdiction conferred by the Act is not a disciplinary jurisdiction because while Advocates and Practitioners are officers of court and it might properly be said that the jurisdiction which the Curt has over them is a disciplinary jurisdiction, the same could not be said of Chartered Accountants, who are third parties-and that any orders passed against them could not be said to be in the exercise of disciplinary jurisdiction. There is no substance in this objection. A disciplinary action consists in punishing a person for misconduct. While in the case of officers of court the jurisdiction may be 'inherent, in the case of strangers the jurisdiction can be exercised only if it is conferred by a Statute. But when once a Statute confers such a jurisdiction, it stands on the same footing as inherent jurisdiction and it does not lose its character as a disciplinary jurisdiction because it has its origin in a Statute. The jurisdiction over Legal Practitioners Act and Attorneys is also a statutory jurisdiction conferred either under the Letters Patent or the Legal Practitioners Act or the Bar Councils Act. It may be mentioned that the Chartered Accountants Act expressly provides that the Council should constitute a Disciplinary Committee for enquiry of complaints and that was done in the present case. We are accordingly of opinion that the fact that Chartered Accountants are not officers of Court does not alter the character of jurisdiction which the High Court exercises over them under the Act.

13. It was next argued that the reference under Section 21 of the Chartered Accountants Act was to the High Court as a court, that a right of appeal against orders made by the High Court is conferred by Section 109 Civil Procedure Code and that on the principle that when matters are referred for the adjudication of a civil court, that will attract the normal procedure of that court including a right of appeal, an appeal would iie to the Supreme Court against the order dated 22-4-1952 and reference was made to the decisions in --'National Telephone Co. Ltd. v. Postmaster General (2); (1913) A. C. 546 at p. 552 and --'Secretary of State for India v. Chelikani Ramarao', 39 Mad 617 (PC). But these authorities do not lay down that whatever proceedings come before a civil court must be held to be civil proceedings. That must depend on the nature of the proceedings. Thus, where the proceedings are in the nature of an arbitration and the order is in the nature of an award, no appeal will lie, notwithstanding that the decision is by a civil court. That was held in -- 'Rangoon Botatoung Co. Ltd. v. Collector of Bangoon', 40 Cal 21 (PC) as regards a reference under the Land Acquisition Act.

It was likewise held that in dealing with references under Section 66 of the Indian Income-tax Act the High Court was acting in an advisory and consultative jurisdiction and that orders passed under that section were not open to appeal to the Privy Council. (Vide -- 'Tata Iron and Steel Co. Ltd. v. Chief Revenue Authority, Bombay', 47 Bom 724 (PC), -- 'Delhi Cloth and General Mills Co. Ltd. v. Commr. of In-cometax, Delhi', 9 Lah 284 (PC) and -- 'Harihar Gir v. Commr. of Incometax, Bihar and Orissa, 20 Pat 561: AIR 1941 Pat 225 (SB).

The Supreme Court has also held that that Is' the position as regards orders passed on references under the Bihar Sales-tax Act, 1944 in -- 'Prem Chand v. State of Bihar', 1951 SCJ 5; Vide also -- 'Tobacco Manufacturers v. State', 30 Pat 174. Therefore what has to be considered is not whether a matter has been determined by a Civil Court, but whether the determination is in a civil proceeding.

In -- 'National Telephone Co. v. Postmaster General (2)', (1913) A.C. 546, the question was with reference to the value to be put on a plant sold by the National Telephone Company to the Postmaster General. It was provided in the Telegraph Arbitration Act, 1909, that any dispute regarding valuation should bo referred to the decision of a commission which was functioning under the Railway and Canal Traffic Acts. Under those Acts the commission was a court of record and appeals were provided against its decisions. The point for decision was whether, a right of appeal against the decision of the commission not having been expressly conferred under the Act of 1909 the appeal was competent under the procedure applicable to the commission under the Railway and Canal Traffic Acts, It was held that as the Act of 1909 provided for a reference generally to an existing statutory commission without special provisions as to appeal, the procedure of that court was attracted in all respects. Viscount Haldane, Lord Chancellor, observed as follows:

"When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court, are to attach, and also that any general right of appeal from its decisions likewise attaches."

It will be noticed that the dispute which had , to be determined in that case was as to the price of a plant to be paid to the vendor by the purchaser and that was clearly a civil right. In -- 'Secretary of State for India v. Chellikani Ramarao', 39 Mad 617 though the proceedings arose under the Forest Act, the dispute related to the ownership of islands in a tidal river. As to this, the Privy Council observed as follows:

"The claim was the assertion of a legal right to possession of and property in land; and if the ordinary courts of the country are seized of a dispute of that character, it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation."

This passage clearly shows that it is not sufficient that the determination is by the ordinary courts. Regard must be had also to the character of the dispute. There is nothing in these two decisions to support the contention that all matters which are referred to the determination of civil courts must be held to be civil proceedings without reference to their nature.

14. It was finally argued that the right of the petitioner to appeal against the order dated 22-4-1952 should be determined with reference to the law as it stood when the misconduct of the petitioner on which the order was based took place, that is in 1946, 1947 and 1948; that under Section 109(c) which was the provision of law then in force any order could be taken on appeal whether it was passed in a civil proceeding or not; that Article 133 did not take away that right; that Article 135 expressly reserved it; and that, therefore, the appeal was competent. Apart from the question whether Section 109(c) would apply to such orders, which has been already discussed it has to be noted that the section was amended by the Adaptation of Laws Order promulgated on 26-1-1950 and as amended the section runs as follows:

"Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may from time to time be made from the courts of India and to the provisions herein after contained, an appeal shall lie to the Supreme Court from any decree or order when the case, as hereinafter provided is certified to be a fit one for appeal to the Supreme Court."

Article 133 finds a place in Chapter IV of Part V. After 26-1-1950 the right of appeal conferred by Section 109(c) is therefore, subject to the limitations of Article 133 and that has also been held by this court in -- 'Ramaswami Chettiar v. Official Receiver, Ramanathapuram', . The petitioner seeks to get over this difficulty by referring to the principle well established that the right of appeal is a vested right and not a mere matter of procedure (Vide -- 'the Colonial Sugar Re fining Co. Ltd. v. Irwing', (1905) A. C. 369 (PC)). But in this case though the charge against the petitioner was that he was guilty of misconduct in 1946, 1947 and 1948, the complaint itself was filed on 5-7-1950 and the Order of this court thereon was passed on 22-4-1952 and the authorities clearly establish that the right of appeal is to be determined as on the date of the commencement of the proceedings and not on any earlier date when the cause of action on which the proceedings are founded arose. Vide -- 'In re Vasudeva Samiar', 52 Mad 361 (SB) and -- 'Sadar All v. Doliludin Otagar', 56 Cal 512 (FB). This argument must, therefore, be rejected. We are accordingly of opinion that Article 133 of the Constitution governs this case; that the proceedings under the Chartered Accountants Act are not civil proceedings within the meaning of that article; and that no appeal lies against the order dated 22-4-1952.

15. This is sufficient to dispose of this application. But we have also considered the matter, on the footing that the order in question is open to appeal either under Article 133(3) or Section 109(c). In either case, the point for determination is whether it is a fit case for appeal under these provisions. The principles governing the grant of leave under Section 109(c) are well settled. In -- 'Banai-si Frasad v. Kashi Kishen Narain', 23 All 227 (PC), Lord Hobhouse in dealing with this provision observed as follows:

"That is clearly intended to meet special cases; such, for example, as those in which the point in dispute is not measurable by money, though it may be of great public or private importance."

In -- 'Radhakrishna' Aiyar v. Swaminatha Aiyar', 44 Mad 293 (PC) Lord Buckmaster explained the scope of this provision in the following terms:

"It is plain that there may be certain cases in which it is impossible to define in money value the exact character of the dispute; there are questions, as for example, those relating to religious rights and ceremonies, to caste and family rights, or such matters as the reduction of the capital of companies as well as questions of wide public importance in which the subject-matter in dispute cannot be reduced into actual terms of money. Sub-sec, (c) of Section 109, C. P. C. contemplates that such a state of things exists, and rule 3 of Or. XLV regulates the procedure."

The same considerations will also govern applications under Article 133(3). Applying these tests, we have not been shown that this case involves any question of great public or private importance. The sole question for determination in these proceedings was whether the petitioner was grossly negligent in the discharge of his duties and whether the balance sheets were defective and misleading. The Disciplinary Committee which enquired into the matter was of the opinion that the charges had been made out and this court, on a consideration of all the facts and circumstances of the case, agreed with the conclusion. That is a pure question of fact and does not raise any question of public or private importance. It is contended that our finding must have a serious effect on the professional career of the petitioner. But no case has been cited to us in which leave had been granted under this section when the decision affected only an individual and no question of general importance was involved. Re- liance was placed on the decisions of the Alla habad High Court where leave to appeal had been granted under this clause against orders suspending legal practitioners on the ground that the order would affect their professional career. This view has not been accepted in this court and would be contrary to the principles laid down by the Judicial Committee as to the true scope of Section 109(c). It was argued that the extent of the duties of an auditor comes up for consideration by the courts for the first time and that is a question of public importance. But those duties are clearly defined and set out in the text books cited on behalf of the peti- tioner and there has been no dispute before us as to the nature and extent of those duties. What was in controversy was a mere question of fact. Wide as is the language of Section 109(c) and Article 133(3) it cannot be construed as ex tending to a case in which the rights of no other person than those of the petitioner are involved and in which there is no other ques- tion excepting a question of fact in issue. We are accordingly of opinion that even if the petitioner has a right of appeal under Section 109(c) or under Article 133(3), that is not a fit case for grant of leave to appeal to the Supreme Court. This petition will, therefore, be dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //