Alfred Henry Lionel Leach, C.J.
1. The respondent is a pleader practising in the Coimbatore District. In February, 1937, one G. Thimmappa, a merchant residing and carrying on business in Bellary, presented a petition to this Court in which he charged the respondent with professional misconduct. The Court considered that the charges made called for inquiry and passed an order directing the District judge of Coimbatore to hold the inquiry, the case falling within Section 13 of the Legal Practitioners' Act. When the matter came before the District Judge the petitioner filed a statement in which he said that he was satisfied that the respondent, who had been his pleader for a considerable time, had not acted mala fide; and that his claim had been settled by the respondent, and he wished to withdraw the petition. In the circumstances, the District Judge thought it unnecessary to proceed with the inquiry and. submitted the record to this Court with his remarks. This Court considered that the District Judge should have proceeded with the inquiry, notwithstanding that the petitioner had expressed a desire to withdraw the petition. Where the Court has reason to believe that a practitioner may have been guilty of professional misconduct, it cannot allow proceedings to be dropped as the result of an agreement between the complainant and the practitioner, or, even if the complainant, without any agreement, does not wish to proceed with the matter.
2. By an order dated 7th March, 1939, the Court remanded the case to the District Judge with direction to proceed. Without reference to this Court the District Judge directed the Additional District Judge to hold the inquiry, which he did, and his report is now before us. Mr. Venkatarama Sastri on behalf of the respondent has raised a preliminary objection. He says that inasmuch as the inquiry has been conducted not by the District Judge, who was directed to hold the inquiry, but by the Additional District Judge, it is unlawful and the Court cannot take action -on it. In other words, he says that the District Judge, having been ordered to hold the inquiry, could not delegate his power to the Additional District Judge and that this Court is precluded from giving approval ex post facto to the inquiry conducted by the Additional District Judge. The learned Advocate-General has contended that if the Court is satisfied with the report it can take action on it. He has also contended that the District Judge had full power by reason of Section 3-A of the Madras Civil Courts Act, 1873, to transfer the matter to the Additional District Judge. Further he has said that inasmuch as the respondent did not take objection to the Additional District Judge holding the inquiry when the matter was in the District Court but appeared and took part in the proceedings throughout he cannot now be allowed to raise the objection.
3. I will deal first with the argument advanced by the learned Advocate-General that the finding of a tribunal of inquiry can be accepted notwithstanding that the tribunal was not appointed by the Court for the purpose. The opening clause of Section 13 of the Legal Practitioners' Act is in these words:
The High Court may also, after such inquiry as it thinks fit, suspend or dismiss any pleader or mukhtar holding a certificate as aforesaid.
4. It is said that the words 'after such inquiry as it thinks fit' leave it open to the Court to give approval ex post facto. I am unable to accept this argument. The Act contemplates the High Court directing an inquiry before action is taken. The Court has duties to perform under the Act and the first duty is to nominate a person or persons to hold the inquiry into the alleged misconduct. Unless the tribunal is constituted beforehand the inquiry, in my opinon, cannot be lawful. I regard the suggestion that approval of a tribunal may be given ex post facto as being repugnant to the spirit of the Act and the wording of Section 13.
5. The argument that because no objection was raised in the District Court to the Additional District Judge conducting the inquiry he cannot be allowed to raise the objection now is also one which I cannot accept. If the tribunal which conducted the inquiry was not validly constituted acquiescence in the proceedings would not turn it into a lawful tribunal. If illegal in its inception, illegal it would remain.
6. The only argument which calls for serious consideration is the argument that Section 3-A of the Madras Civil Courts Act gave the District Judge power to direct the Additional District Judge to conduct the inquiry. That section reads as follows:
When in the opinion of the High Court, the state of business pending before the Judge of any District Court (hereinafter called the District Judge) so requires, the Local Government may appoint one or more Additional District Judges to that Court for such period as they may deem necessary, the Additional District Judges so appointed shall discharge all or any of the functions of the District Judge, under this Act or any other law for the time being in force which the District Judge may assign to them, and, in the discharge of those functions, they shall exercise the same powers as the District Judge.
7. Therefore an Additional District Judge may lawfully deal with matters which come within the province of the District Judge under the Act or any other law for the time being in force. The Civil Courts Act only refers to civil suits and appeals from Judges subordinate to the District Judge. The matter now before us is neither a suit nor an appeal. The learned Advocate-General has, however, said that 'the present case falls within the words 'or any other law for the time being in force.' I consider that the Legislature had here in mind Acts such as the Indian Companies Act, the Indian Divorce Act and the Succession Act, which confer upon a District Judge jurisdiction in specified matters. If there were a clause in the legal Practitioners' Act which directed the District Judge to hold the inquiry in a case like the present one he certainly would have power under Section 3-A of the Madras Civil Courts Act to assign the inquiry to the Additional District Judge, but there is nothing in the Legal Practitioners' Act which directs the District Judge to hold the inquiry. The Act leaves the matter entirely in the hands of the High Court. The High Court and not the Act nominates the tribunal. Therefore when the High Court directs a District Judge to hold an inquiry into a charge of professional misconduct the District Judge does not hold the inquiry under the Act but under the orders of the High Court. Before a District Judge can be allowed to pass on his duty to some one else there must be very clear authority for his action. Certainly the Madras Civil Courts Act does not provide it. In my opinion, the District Judge having been directed by this Court to hold the inquiry he had no power of delegation. No doubt he thought that he had authority under Section 3-A of the Madras Civil Courts Act to transfer the duty to the Additional District Judge, but I consider that in so doing he erred. It would have been a different matter if he had received the sanction of this Court beforehand, but he directed the Additional District Judge to hold the inquiry without making any reference to this Court.
8. It follows from what I have said that I am not prepared to read Section 3-A of the Madras Civil Courts Act in the way suggested by the learned Advocate-General and I feel bound to uphold the preliminary objection raised on behalf of the respondent. The findings of the Additional District Judge will be set aside and the District Judge directed to hold a fresh inquiry into the allegations made against the respondent and present his own report to this Court in due course. In order to prevent any misunderstanding I would add that this Court has not considered the findings of the Additional District Judge and will deal with the charges against the respondent merely on the report of the District Judge when it is submitted.
9. I agree.
Krishnaswami Aiyangar, J.
10. I agree.