Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2581 OF 2005
Chander Prakash Tyagi … Appellant
Versus
Shri Benarsi Das (Dead)
By LRs. and others …Respondents
WITH
CIVIL APPEAL NO. 2633 OF 2005
J U D G M E N T
Prafulla C. Pant, J.
This appeal (Civil Appeal No. 2581 of 2005), preferred
under Section 38 of the Advocates Act, 1961, is directed against
order dated 30.6.2002, passed by the Disciplinary Committee of
Bar Council of India (B.C.I.) whereby the appellant Chander
Prakash Tyagi, Advocate, has been held guilty of violation of
Signature Not Verified
Digitally signed by
Chetan Kumar
Date: 2015.03.18
15:46:51 IST
Reason:
Rule 33 of Section II contained in Part VI of Bar Council of India
Rules. Consequently, appellant has been suspended from
Page No.2 of 11
practicing for a period of one year, and directed to pay cost of
Rs.2,000/-, out of which Rs.1,000/- to be paid to the
respondent-complainant and rest of the amount is directed to be
deposited with the Advocates’ Welfare Fund of B.C.I. The
appellant is further directed to pay cost of Rs.3,000/- vide order
passed on review application, dismissed by the Disciplinary
Committee, which is also challenged through special leave in the
connected Civil Appeal No. 2633 of 2005.
2. We have heard learned counsel for the parties at length.
3. Succinctly, factual matrix of the case is that the
respondent-complainant Banarsi Das instituted case No. 137 of
1994 before District Judge, Saharanpur, for his appointment as
guardian of his grandson Komal Arora under Section 7 of the
Guardians and Wards Act, 1890, as complainant’s son Avtar
Singh (father of the minor Komal Arora) had died in the year
1992. In said case, appellant Chander Prakash Tyagi, advocate,
was engaged as his counsel. It is alleged by the complainant
that the appellant did not contest his case properly as he was in
collusion with the “opponents”, namely, Dilawar and Nazim,
sons of Raja Hasan, and the petition for appointment of
guardian was dismissed for non-prosecution on 2.1.1995. The
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complainant had shown all papers relating to the case to the
appellant and paid his fee. Later, appellant-advocate accepted
brief of Dilawar for filing suit against complainant’s grandson
Komal Arora in subsequently filed proceedings. On this,
complainant gave notice to the appellant on 30.7.1998 to get
himself disengaged from Dilawar in suit Nos. 565 of 1995 and
573 of 1995, instituted before Civil Judge, Senior Division,
Saharanpur, against Komal Arora and others. However, he did
not care, on which complainant made a complaint, supported by
affidavit and other papers, to the Bar Council of Uttar Pradesh,
Allahabad (for short “the State Bar Council”).
4. The State Bar Council registered above complaint as
Disciplinary Case No. 13 of 1999 and issued notice to appellant
Chander Prakash Tyagi (Advocate). In his reply before
Disciplinary Committee of the State Bar Council, the appellant
admitted that he was engaged by Dilawar and Nazim in suit Nos.
565 of 1995 and 573 of 1995 against Komal Arora. However, he
pleaded that no sooner he came to know that he had been
counsel for Komal Arora in the earlier proceedings, he withdrew
his Vakalatnama from the above mentioned suits. It is further
pleaded by him that the case for appointment of guardian and
Page No.4 of 11
the suit for specific performance of contract were of different
nature, and he did not commit any misconduct. He further
pleaded that the respondent-complainant had taken papers back
from him, as such, he was not obliged thereafter to prosecute
his case No. 137 of 1994, which was dismissed on 2.1.1995 for
non-prosecution.
5. The Disciplinary Committee of the State Bar Council
dismissed the complaint, vide order dated 6.6.2000, in view of
the fact that the advocate (present appellant) had withdrawn his
Vakalatnama from the two suits, and accepted the plea that the
two proceedings, one filed on behalf of Komal Arora and the
other two filed against him, were of different nature.
6. Aggrieved by the order passed by the Disciplinary
Committee of the State Bar Council, the complainant, resorting
to Section 37 of the Advocates Act, 1961, preferred D.C. Appeal
No. 36 of 2001 before the Bar Council of India. The Disciplinary
Committee of B.C.I., after hearing both the sides, opined that
Chander Prakash Tyagi, Advocate, is guilty of misconduct, and
his right to practice as an advocate was suspended for a period
of one year and he was further directed to pay cost of
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Rs.2,000/-, out of which Rs.1,000/- was required to be
deposited with Advocates’ Welfare Fund of B.C.I..
7. The review petition filed by the appellant was also
dismissed by the Disciplinary Committee of B.C.I., upholding its
earlier order, and it further directed the erring advocate to pay
Rs.3,000/- as cost of the review petition, out of which
Rs.1,000/- to be paid to the respondent-complainant and rest of
the amount was to be deposited with the Bar Council of India
Advocates’ Welfare Fund. Hence, these appeals.
8. Learned counsel for the appellant argued before us that
neither any charge was framed against the appellant nor
principles of natural justice were adhered to by the Disciplinary
Committee of B.C.I., as such, the impugned orders passed by
said authority are liable to be set aside. It is further contended
that the proceedings under Section 7 of the Guardians and
Wards Act, 1890, in which he was engaged by the complainant
for his appointment as guardian of his minor grandson Komal
Arora, and the suits filed on behalf of Dilawar, though in respect
of same property, were of totally different nature, as such it
cannot be said that the appellant has committed any
misconduct. It is also submitted on behalf of the appellant that
Page No.6 of 11
since the complainant did not pay the fee and took the papers
back from him, and he (complainant) himself was prosecuting
the case under Guardians and Wards Act, 1890 personally, the
appellant is not responsible for dismissal of the case for
non-prosecution.
9. On the other hand, on behalf of the respondents, defending
the impugned orders, it is argued that the guilt of misconduct on
the part of the advocate was established on record from the
certified copies of the papers and the admissions made by the
appellant. It is further argued that the impugned orders passed
by the Disciplinary Committee of B.C.I. are justified in the facts
and circumstances of the case.
10. Before further discussion, we think it just and proper to
quote the relevant provisions of law, which are applicable to this
case. Section 35 of the Advocates Act, 1961, reads as under: -
“ 35. Punishment of advocates for misconduct . – (1)
Where on receipt of a complaint or otherwise a State
Bar Council has reason to believe that any advocate
on its roll has been guilty of professional or other
misconduct, it shall refer the case for disposal to its
disciplinary committee.
(1A) The State Bar Council may, either of its own
motion or on application made to it by any person
interested, withdraw a proceeding pending before its
disciplinary committee and direct the inquiry to be
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made by any other disciplinary committee of that
State Bar Council.
(2) The disciplinary committee of a State Bar
Council shall fix a date for the hearing of the case and
shall cause a notice thereof to be given to the advocate
concerned and to the Advocate-General of the State.
(3) The disciplinary committee of a State Bar
Council after giving the advocate concerned and the
Advocate-General an opportunity of being heard, may
make any of the following orders, namely: -
(a) Dismiss the complaint or, where the proceedings
were initiated at the instance of the State Bar
Council, direct the proceedings be filed;
(b) Reprimand the advocate;
(c) Suspend the advocate from practice for such
period as it may deem fit;
(d) Remove the name of the advocate from the State
roll of advocates.
(4) Where an advocate is suspended from practice
under clause (C) of sub-section (3), he shall, during
the period of suspension, be debarred from practicing
in any court or before any authority or person in
India.
(5) Where any notice is issued to the
Advocate-General under sub-section (2), the
Advocate-General may appear before the disciplinary
committee of the State Bar Council either in person or
through any advocate appearing on his behalf.”
11. Regulation 33 of Section II of Part VI of Bar Council of India
Rules, which is said to have been violated by the appellant,
reads as under: -
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“An advocate who has, at any time, advised in
connection with the institution of a suit, appeal or
other matter or has drawn pleadings, or acted for a
party, shall not act, appear or plead for the opposite
party.”
12. The spirit contained in the rule 33, quoted above, is that
where a lawyer has committed breach of his duty in respect of
fiduciary obligation arising out of the relationship between
himself and his client, he is guilty of misconduct of conflict of
interest. The above rule restrains a lawyer from acting for
another client on the ground of conflict of interest as the duty of
the lawyer owed to his former client, not to act prejudicially to
his interest, does not come to an end with the termination of the
earlier case of his client with whom he had shared confidential
information. The basis of Rule 33 is that there is likelihood or
possibility of misuse of the instructions given to the lawyer by
his former client.
1
13.
In V.C. Rangadurai v. D. Gopalan and others , this
Court has held that where advocate finds there would be conflict
of interest in taking up a case of his client, he should not accept
the brief of such client, against interest of his earlier client.
Defining the word “misconduct”, this Court in Noratanmal
1 (1979) 1 SCC 308
Page No.9 of 11
2
Chourasia v. M.R. Mulri and another , has explained that
misconduct is a transgression of some established and definite
rule of action.
14.
In O.P. Sharma and others v. High Court of Punjab and
3
Haryana , this Court has made following observations in
paragraphs 37 to 39 relating to ethical standards in the judicial
system, and the same are reproduced as under: -
“ 37. A court, be that of a Magistrate or the Supreme
Court is sacrosanct. The integrity and sanctity of an
institution which has bestowed upon itself the
responsibility of dispensing justice is ought to be
maintained. All the functionaries, be it advocates,
Judges and the rest of the staff ought to act in
accordance with morals and ethics.
38. An advocate’s duty is as important as that of a
Judge. Advocates have a large responsibility towards
the society. A client’s relationship with his/her
advocate is underlined by utmost trust. An advocate
is expected to act with utmost sincerity and respect.
In all professional functions, an advocate should be
diligent and his conduct should also be diligent and
should conform to the requirements of the law by
which an advocate plays a vital role in the
preservation of society and justice system. An
advocate is under an obligation to uphold the rule of
law and ensure that the public justice system is
enabled to function at its full potential. Any violation
of the principles of professional ethics by an advocate
is unfortunate and unacceptable. Ignoring even a
minor violation/misconduct militates against the
fundamental foundation of the public justice system.
2 (2004) 5 SCC 689
3 (2011) 6 SCC 86
Page No.10 of 11
39. An advocate should be dignified in his dealings to
the court, to his fellow lawyers and to the litigants. He
should have integrity in abundance and should never
do anything that erodes his credibility. An advocate
has a duty to enlighten and encourage the juniors in
the profession. An ideal advocate should believe that
the legal profession has an element of service also and
associates with legal service activities. Most
importantly, he should faithfully abide by the
standards of professional conduct and etiquette
prescribed by the Bar Council of India in Chapter II,
Part VI of the Bar Council of India Rules.”
15.
In Dhanraj Singh Choudhary v. Nathulal
4
Vishwakarma , discussing the nobility of the profession of
lawyers, this Court has made following observations: -
“ 25. Any compromise with the law’s nobility as a
profession is bound to affect the faith of the people in
the rule of law and, therefore, unprofessional conduct
by an advocate has to be viewed seriously. A person
practising law has an obligation to maintain probity
and high standard of professional ethics and
morality.”
16. In view of the above discussion, we are unable to accept the
argument advanced on behalf of the appellant that the appellant
has committed no misconduct as the proceedings in which the
appellant appeared for and against the same client are different
in nature, particularly, in view of the fact that the property
involved in both the cases was the same. We agree with the
4 (2012) 1 SCC 741
Page No.11 of 11
learned counsel for the B.C.I. that the appellant was given
proper opportunity to explain his conduct by the Disciplinary
Committee of B.C.I., as is evident from the impugned orders,
there is no violation of proviso to sub-section (2) of Section 37 of
the Advocates Act, 1961.
17. Therefore, we find no force in these appeals which are liable
to be dismissed and the same are dismissed with no order as to
costs. Copy of this order shall be sent to the Bar Council of
Uttar Pradesh, Allahabad as also to the District Judge,
Saharanpur.
………………………..…….J.
[T.S. Thakur]
………………………..…….J.
[Prafulla C. Pant]
New Delhi;
March 17, 2015.
Page No.12 of 11
ITEM NO.1C COURT NO.5 SECTION IIIA
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.2581 of 2005
CHANDER PRAKASH TYAGI Appellant(s)
VERSUS
SHRI BENARSI DAS (DEAD) BY LRS.& ORS. Respondent(s)
WITH C.A. No.2633/2005
Date : 17/03/2015 These appeal were called on for pronouncement
of Judgment today.
For Appellant(s)
Mr. Sonal Jain, AOR
For Respondent(s) Mr. Aviral Shukla, Adv.
Mr. Ardhendumauli Kumar Prasad, AOR
Ms. Pankhuri Bhardwaj, Adv.
Mr. M. Qamaruddin, AOR
Hon'ble Mr. Justice Prafulla C. Pant, pronounced the
judgment of the Bench, comprising Hon'ble Mr. Justice T.S.
Thakur and His Lordship.
The appeals are dismissed in terms of the signed
reportable judgment.
(Chetan Kumar)
(H.S. Parashar)
Court Master
Court Master
(Signed reportable judgment is placed on the file)