Full Judgment Text
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PETITIONER:
IN THE MATTER OF P. AN ADVOCATE
Vs.
RESPONDENT:
DATE OF JUDGMENT:
23/01/1963
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
SINHA, BHUVNESHWAR P.(CJ)
WANCHOO, K.N.
HIDAYATULLAH, M.
SHAH, J.C.
CITATION:
1963 AIR 1313 1964 SCR (1) 697
CITATOR INFO :
RF 1976 SC 242 (23)
R 1984 SC 110 (6,7)
RF 1992 SC1398 (4)
ACT:
Advocate-Professional Misconduct--Failure to file Bill of
Costs in time-Gross negligence, when amounts to professional
misconduct-Senior Advocate receiving fees directly from
clientPropriety of-Supreme Court Rules, O. IV-A.
HEADNOTE:
Mr. P, an Advocate-on-record of the Supreme Court, acted for
Respondent No. 2 (b) in the appeal and Mr. J, a Senior
Advocate, was briefed to lead him at the hearing. The
client had paid Rs. 500/- to Mr. I?. and Mr. j was paid Rs.
1,000/direct by the client. The appeal was dismissed with
costs in favour of Respondent No. 2 (b). Though the client
paid him the expenses asked for Mr. P did not lodge the Bill
of Costs within the time allowed but filed in about 10
months beyond time. As the Bill of Costs was not accompanied
by an application for condonation of delay, it was returned.
Mr. P took no steps thereafter but, a year later he asked
for and received another sum of Rs.. 200/-from his client.
The client repeatedly wrote to the Advocate enquiring about
the Bill of Costs but received no reply. The client applied
for discharging the Advocate and for condonation of delay in
filing the Bill of’ Costs, both of which prayers were
granted. The Chief justice constituted a tribunal under 0.
IV-A, r. I 8, Supreme Court Rules to enquire into the
conduct of Mr. P. The Tribunal held that the Advocate acted
with gross-negligence and that his conduct amounted to
professional. or other misconduct within the meaning of 0.
IV-A. Thereafter the matter was placed before the Court for
final disposal.
Held, that the Advocate was guilty of professional
misconduct and his name should be removed from the rolls for
five years.
The Advocate was guilty of causing gross delay in filing the
Bill of Costs for which there was no acceptable explanation.
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Though mere negligence or error of judgment did not amount
to professional misconduct, different considerations arose
where the negligence of the Advocate was gross. Sometimes,
Courts examine whether the gross negligence involves moral
turpitude or delinquency. Conduct which is contrary to
honesty, or opposed
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to good morals or is unethical involves moral turpitude. An
unduly narrow view of the concept of moral turpitude or
delinquency is not to be taken and it has to be seen whether
by his conduct the Advocate has rendered himself unworthy to
be a member of the legal profession. The Tribunal which
consisted of three members of the legal profession, was a
good judge of what was professional misconduct as an
Advocate.,
in re A Vakil, (1925) I.L.R. 49 Mad. 523, In the matter of
an Advocate of Aqra, I.L.R. 1940 All. 386, Allinson v.
General Council of Medical Education and Registration,
(1894) 1 Q.B. 750, In re A Solicitor Ex parte the Law
Society. (1912) 1 K.B. 302, In the matter of an Advocate,
(1936) I.L.R. 63 Cal.867 and In the matter of an
Advocate,(1933) I.L.R. 12 Ran 110, referred to.
The acceptance of fee by a Senior Advocate direct from the
client is not consistent with professional etiquette and
convention about the conduct of Senior Counsel.
JUDGMENT:
DISCIPLINARY JURISDICTION
Sarju Prasad and A. D. Mathur, for the Advocate.
C. K. Daphtary, Solicitor General of India, and R. N.
Sachthey, for the Attorney-General for India.
1963. January 23. The judgment of the Court was delivered
by
GAJENDRAGADKAR, J.-Mr. P., who is an advocate-on-record of
this Court and who wilt hereafter be called the ’Advocate’,
acted for the Board of Trustees of the Dakhina Parswa Nath
of Puri through its Executive Officer respondent No. 2 (b)
in Civil Appeal No. 232/1954. As such Advocate he entered
appearance on November 9, 1957. The said appeal was heard
on May, 2 and 6, 1958, and by the judgement pronounced by
this Court on May, 20, 1958, it was dismissed with costs in
favour of respondent No. 2 (b). The Advocate had briefed
Mr. J. as a senior Advocate to lead him at the hearing of
the appeal. It appears that the client had paid
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the Advocate Rs. 500/- on the eve of the hearing of the
appeal and the senior Advocate was paid Rs. 1,000/- direct
by the client. The Bill of Costs and vouchers had to be
filed by the Advocate on behalf of his client within six
weeks 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 summer vacation of the Court.
After the summer vacation, the Court reopened on August 4,
1958. Meanwhile, on May, 20 1958, after the judgment was
delivered by this Court, the Advocate wrote to his client
informing him about the result of the appeal 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 the necessary expenses in the matter of presenting
the bill of costs. This amount was paid to him at Puri on
july 26, 1988, and the Advocate passed a receipt in that
behalf, He, however, took no further action in the matter
until about January 9, 1959, when it appears that he
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inspected the Court records in order to be able to prepare a
draft bill. A bill was accordingly prepared by him and it
was presented in Court on May 19, 1959. Since the bill was
obviously filed beyond the period prescribed by 0. XL. r. 12
the Office returned the bill to the Advocate. In ordinary
course, the Advocate should have filed an application
requesting that the delay made in filing the bill should be
condoned, but he seems 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 appears that
Mr. Banamdar was the ’Executive Officer of respondent No. 2
(b) when the Advocate was engaged by him, but later, Mr.
Misra succeeded to the office of the Executive 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 understand why the Advocate asked for this
amount. During the period this client wrote to
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the 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 of presenting the bill of the
costs and obtaining orders thereon, he gave notice to the
Advocate on January 9, 1961, discharging him from his
engagement. on January 12, 1961, he also applied to this
Court to cancel the Advocate’s Vakalat and to condone the
delay made in the filing of the bill of costs. On March 1
12, 1961, the Advocate agreed that his client can engage Mr.
Verma. The applications made by the client for cancelling
the Advocate’s Vakalat and for condoning the delay made in
the filing of the bill of costs came up before the learned
judge in Chambers. They had, however, to -be adjourned from
time to time in order to enable the Advocate to appear
before the learned Chamber judge. Ultimately, on January 9,
1962, the learned judge condoned the delay made in the
presentation of the bill of costs without prejudice to the
right of the judgment-debtor to plead that the execution in
respect of the bill of costs is barred by limitation.He also
ordered that the papers should be submitted to the Hon’ble
the Chief justice for taking action against the Advocate for
the gross 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.
After the papers were thus placed before the learned Chief
justice, he constituted a Tribunal consisting of three
members of the Bar under 0. IV-A r. 18 to enquire into the
conduct of the Advocate. The Tribunal then proceeded to
hold an enquiry and submitted its report. The issue which
the Tribunal tried in these proceedings was whether the
Advocate acted with gross negligence in the matter of the
taxation of the costs of his client in the appeal in
question, and if so, whether such conduct amounts
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to professional or other misconduct within the meaning of
that expression in 0. IV of the Rules. The report of the
Tribunal shows that it has found against the Advocate on
both parts of the issue. In its opinion, the conduct of-
the Advocate amounts to professional misconduct as well as
other misconduct within the meaning of the said Order.
On receipt of this Report, the proceedings have been -placed
before us for final disposal under 0. IV-A r. 21 of the
Rules and the questions which fall for our decision are
whether the Tribunal was right in holding that the conduct
of the Advocate amounts to professional misconduct and other
misconduct and if yes, what is the penalty which should be
imposed on the Advocate?
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The relevant facts which the Tribunal had to weigh in
dealing with the issue referred to it lie within a very
narrow compass. It is obvious that in filing the bill of
costs on May 19, 1959, the Advocate was guilty of gross
delay. He knew that O. XL r. 12 required that the bill of
costs and vouchers had to be filed within six weeks from the
date of judgment and there is no doubt that for filing the
bill of costs and vouchers it was unnecessary to obtain any
instructions from the client or secure any material from
him. The bill of costs incurred by the respondent in the
proceedings before this Court which had to be taxed were in
this case all costs incurred in this Court and if the
Advocate had kept proper accounts, he would have been able
to file the bill of costs without any delay. It is true
that the senior counsel briefed by him in this case was paid
his fees of Rs. 1000/- by the client direct which
incidentally. is not consistent with professional etiquette
and convention about the conduct of a senior counsel. It is
to be hoped that this departure from professional etiquette
conventionally prescribed for the senior Advocates is an
exception. for if Senior Advocates were to deal
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with the clients direct, it would destroy the very basis of
the system of Advocates on-Record and would make it so
difficult for this Court to assist the growth of a strong,
healthy and efficient junior Bar consisting of Advocates-on-
record and junior Advocates who prefer only to plead and not
to act and plead. It is, however, clear that the Advocate
could have obtained a receipt from the senior counsel
without any delay and it is not suggested that the delay
made by him in filing the bill of costs 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 no doubt whatever that if only the Advocate had
approached him for another receipt in that behalf, the
senior counsel would have immediately given him such a
receipt. Therefore, in dealing with the question of delay,
we cannot ignore the fact that the delay has been made in
filing the bill of costs and vouchers which was entirely a
matter within the Advocate’s knowledge. It is of utmost
importance that Advocates-on-record ought to discharge their
duties by their clients with diligence and there should be
no occasion for any delay in the filing of the bills of
costs and vouchers under O. XL r. 12.
It is significant that the client repeatedly wrote to the
Advocate and enquired about the bill of costs. Four of such
letters written by the client to the Advocate have been
produced in the proceedings before the Tribunal. The
Advocate explained that he sent replies to these letters by
post-cards or sometimes orally explained to the client the
position when he happened to meet him. The Tribunal was not
impressed with this explanation and thought that the conduct
of the Advocate in not sending any replies to the queries
made by his client rather shows that the advocate knew that
he was at fault and he had really no answer to give in
respect of the said queries. It is also clear that after
the appeal was ’decided, the Advocate was paid by his client
Rs. 60/- obviously
703
with a view to enable him to file the bill of costs. The
Tribunal has found that this amount was quite ample under
the rules and so, it is not possible to explain the delay
made by the Advocate in filing the bill of costs on the
ground that he was not put in charge of sufficient funds by
his client to meet the expenses in that behalf.
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A faint attempt was no doubt made by the Advocate to show
that he could not file the bill of costs in time because he
did not receive the assistance of the High Court lawyer as
to the printing charges, etc. Indeed, it does appear that
the Advocate wrote a letter on May 20, 1958, calling for
some information in respect of the printing charges incurred
in the preparation of the paper books in this appeal. As
the Tribunal has observed, this plea is entirely
meaningless, because the taxation of costs of the appeal in
this Court has nothing to do with the expenses incurred by
the parties for preparing the record in the High Court; and
as to vouchers, the only voucher which the Advocate had to
file was the voucher from the senior counsel in respect of
the fees of Rs. 1,000/- paid to him. Therefore, there is
little doubt that the Advocate was guilty of causing gross
delay in filing the bill of costs and vouchers as required
by the relevant Rule. The fact that the learned Chamber
judge was pleased to condone the delay made in presenting
the bill of costs when 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 the
said bill of costs in time. Besides, as we have already
seen, the delay has been condoned without prejudice to the
judgment-debtor’s right to plead that the execution is
barred by the law of limitation. In case such a plea is
raised and allowed, the respondent is likely to lose a large
amount of more than Rs. 2000/-. Even if the plea is not
raised, or, if raised, is not allowed and the respondent
secures his costs from the
704
appellant, that would be because the learned Chamber judge
took a sympathetic view and did not wish to penalise the
party for default of his Advocate. It is in the light of
these findings that we have to decide whether the Tribunal
was justified in holding that the Advocate is guilty of
professional misconduct as well as other misconduct.
It is true that mere negligence or error of judgment on the
part of the Advocate would not amount to professional
misconduct. Error of judgment cannot be completely
eliminated in all human affairs and mere negligence may not
necessarily show that the Advocate who was guilty of it can
be charged with misconduct, vide In re A Vakil (1), and in
the matter of an Advocate of Agra (2) . But different
considerations arise where the negligence of the Advocate is
gross. It may be that before condemning an Advocate for
misconduct, courts are inclined to examine the question as
to whether such gross negligence ’involves moral turpitude
or delinquency. In dealing with this aspect of the matter,
however, it is of utmost importance to remember that the
expression "moral turpitude or delinquency" is not to
receive a narrow construction. Wherever conduct proved
against an Advocate is contrary to honesty, or opposed to
good morals, or is unethical, it may be safely held that it
involves moral turpitude. A wilfull and callous disregard
for the interests of the client may, in a proper case, be
characterised as conduct unbefitting ’an’ Advocate. In
dealing with matters of professional propriety, we cannot
ignore the fact that the profession of law is an honourable
profession and it occupies a p1ace of pride in the liberal
professions of the country. Any. conduct which makes a
person unworthy to belong to the noble fraternity of lawyers
or makes an Advocate unfit to be entrusted with the
responsible task of looking after the interests of the
litigant, must be regarded as conduct involving moral
turpitude. The
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(1) (1925) I.L.R. 49 Mad. 523.
(2) I.L.R. 1940 All. 386.
705
Advocates-on-record like the other members of the Bar
Advocates are Officers of the Court and the purity of the
administration of justice depends as much on the integrity
of the judges as on the honesty of the Bar. That is why in
dealing with the question as to whether an Advocate has
rendered himself unfit to belong to the brotherhood at the
Bar, the expression "moral turpitude or delinquency" is not
to be construed in an unduly narrow and restricted sense.
Besides, -it would be noticed that the relevant rules of IV-
A refer not only to professional misconduct but to other
misconduct as well. An Advocate invites disciplinary orders
not only if he is guilty of professional misconduct, but
also if he is guilty of other misconduct ; and this other
misconduct which may not be directly concerned with his
professional activity as I such, may nevertheless be of such
a dishonourable or infamous character as to invite the
punishment due to professional misconduct itself. An
illustration in point would be the conviction of an Advocate
for a criminal offence involving moral turpitude, though it
may not be connected with his professional work as such.
Therefore, in dealing with the case of the Advocate before
us, it would not be right to take an unduly narrow view of
the concept of moral delinquency or turpitude but to
concentrate on the broad issue as to whether by his conduct
proved in the present case he has not rendered himself
unworthy to be a member of the legal profession.
As early as 1894 Lopes L. J. attempted to give the
definition of misconduct of a medical man in Allinson v.
General Council of Medical Education and Registration (1).
In that case Lopes L. J. said :
"The Master of the Rolls has adopted a
definition which, with his assistance and that
of my brother Davey, I prepared. I will read
(1) [1894] 1 Q. B. 750.
706
it 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 as disgraceful or
dishonourable by his professional brethern of
good repute and competency, then it is open to
the General Medical Council to say that he has
been guilty of ’infamous conduct in a
professional respect’."
This definition was held applicable while dealing with the
case of a solicitor In re A Solicitor Ex parte the Law
Society (1). Mr. Justice Darling quoted this definition and
added "that the Law Society are very good judges of what is
professional misconduct as a solicitor, just as the General
Medical Council are very good judges of what is misconduct
as a medical man." With respect, we think the same
observation can be made with equal force about the Tribunal
which has dealt with this matter and made its report in the
present case.
In the matter of An Advocate (2), Mukerji, A. C.referred to
the observations made by Page J. J. In the matter of An
Advocate (3) which showed that the learned Chief Justice
thought that "’in considering whether an advocate should be
struck off the roll of Advocates, the ’test. should be
whether the proved misconduct of the advocate is such that
he must be regarded as unworthy to remain a -member of the
honourable profession to which he has been admitted and
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unfit to be entrusted 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 take the
two conditions laid down as aforesaid disjunctively and
apply the test in that way so that on the fulfilment of any
one of the conditions the test would be regarded as
satisfied." In other words, according to Mukerji A. C. T.,
misconduct which would render the Advocate liable to be
removed from the rolls can be
(1) [1912] 1 K. B. 302. (2) (1936) I.L.R. 63 Cal. 867.
(3) (1933) I.L.R. 12 Pan. 110, 113.
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either professional misconduct or other misconduct, with the
result that in either case, the advocate ceases to be
entitled to belong to the honourable profession of law. The
learned judge also observed that this disjunctive test would
prove a sound working rule in the majority of cases and
would be applicable to all branches of the profession. It
would be noticed that the words used in the relevant rules
of O. IV-A are professional or other misconduct 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).
Reverting then to the facts found by the Tribunal in this
case, it is clear that the advocate was paid Rs. 60/-
expressly for the purpose of filing the bill of costs in
time ; that the delay made by him in presenting the bill of
costs is so unreasonable that the negligence of which he is
guilty must be characterised as gross. The explanation
given by the Advocate in justification of this delay is
clearly fantastic and untrue. The, loss which would have
resulted to the client is of the order of Rs. 2000/- and it
consists of an item of costs awarded to him by this Court in
dismissing the appeal filed against him. During the
relevant period, his client was repeatedly enquiring as to
what had happened about the bill of costs, and the
explanation given by the Advocate in that behalf has been
rejected by the Tribunal and it must, therefore, be taken to
be proved that despite the reminders, the advocate took no
steps to file 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 as the
Tribunal has observed, this demand by the Advocate was
wholly unjustified. Having regard to all these
circumstances, we do not think it would be possible to
accept Mr. Sarjoo Prasad’s contention that the Tribunal was
not justified in making a finding against the advocate that
he was guilty of professional misconduct.
708
The next question which we have to consider is: what would
be the appropriate order to make in this case ? Fortunately,
cases of professional misconduct are rare in this Court ;
but when they are brought to the notice of this Court and it
is proved that the allegations made against an Advocate are
true, it would be unwise and inexpedient for this Court to
take a lenient view of the lapse of the Advocate. The
members of the Bar owe it to themselves and to the Court to
live up to the best traditions of the Bar, and any serious
lapse an the part of any member of the Bar must be severely
dealt with. Healthy traditions at the Bar help not only to
make the Bar strong and respected, but render valuable and
effective assistance to the Courts to deserve and sustain
the absolute confidence and faith of the litigating public
in the fairness of the administration of justice, for we
must always remember that on the ultimate analysis, the real
strength of the administration of justice lies in the
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confidence of the public at large. We are, therefore
reluctant to accede to the plea made before us by Mr. Sarjoo
Prasad that we should reprimand the Advocate for his
misconduct and pass no further orders against him. Having
carefully considered all the relevant circumstances in this
case, we are satisfied that in the interests of the
profession itself, it -is necessary to direct that the name
of the Advocate should be removed from the rolls for five
years. We also direct that the Advocate should pay the
respondent’s costs of the enquiry before the Tribunal and of
the hearing before us. Before we part with this matter, we
ought to add that it has been conceded before us both by Mr.
Sarjoo Prasad and by the learned Solicitor-General that Part
V of the Advocates 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 the present
proceedings have to be dealt with by the Court in accordance
with the existing law.
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