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CASE NO.:

Appeal (civil) 1124 1998

PETITIONER:

D.P. CHADHA

Vs.

RESPONDENT:

TRIYUGI NARAIN MISHRA & ORS.

DATE OF JUDGMENT: 05/12/2000

BENCH:

R.C.Lahoti, K.G.Balakrishna

JUDGMENT:

R.C. Lahoti, J.

L.....I.........T.......T.......T.......T.......T.......T..J

Shri D.P. Chadha, advocate, the appellant, has been

held guilty of professional misconduct by Rajasthan State

Bar Council and punished with suspension from practice for a

period of five years. Shri Anil Sharma, advocate was also

proceeded against along with Shri D.P. Chadha, advocate and

he too having been found guilty was reprimanded. An appeal

preferred by Shri D.P. Chadha, advocate under Section 37 of

the Advocates Act, 1961 has not only been dismissed but the

Bar Council of India has chosen to vary the punishment of

the appellant by enhancing the period of suspension from

practice to ten years. The Bar Council of India has also

directed notice to show cause against enhancement of

punishment to be issued to Shri Anil Sharma, advocate. The

Bar Council of India has further directed proceedings for

professional misconduct to be initiated against one Shri

Rajesh Jain, advocate. Shri D.P. Chadha, advocate has

preferred this appeal under Section 38 of the Advocates Act,

1961 (hereinafter the Act, for short).

It is not disputed that Upasana Construction Pvt.

Ltd. had filed a suit for ejectment based on

landlord-tenant relationship against the complainant Shri

Triyugi Narain Mishra, who was running a school in the

tenanted premises wherein about 2000 students were studying.

Shri D.P. Chadha was engaged by the complainant for

defending him in the suit.

It is not necessary to set out in extenso the contents

of the complaint made by Shri Triyugi Narain Mishra to the

Bar Council. It would suffice to notice in brief the

findings concurrently arrived at by the State Bar Council

and the Bar Council of India constituting the gravamen of

the charge against the appellant. While the proceedings in

the ejectment suit were going on in the Civil Court at

Jaipur, the complainant was contesting an election in the

State of U.P. Polling was held on 18.11.1993 and again on

22.11.1993 on which dates as also on the days intervening,

Shri Triyugi Narain Mishra was in Chilpur in the State of

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U.P. looking after the election and was certainly not

available at Jaipur. Shri D.P. Chadha was in possession of

a blank vakalatnama and a blank paper, both signed by the

complainant, given to him in the first week of October,

1993. These documents were used for fabricating a

compromise petition whereby the complainant has been made to

suffer a decree for eviction. The blank vakalatnama was

used for engaging Shri Anil Sharma, advocate, on behalf of

the complainant, who got the compromise verified. Though

the compromise was detrimental to the interest of the

complainant yet the factum of compromise and its

verification was never brought to the notice of the

complainant inspite of ample time and opportunity being

available for the purpose. The proceedings of the court

show a deliberate attempt having been made by three erring

advocates to avoid the appearance of the complainant before

the court, to prevent the complainant from gathering

knowledge of the compromise filed in court and creating a

situation whereby the court was virtually compelled to pass

a decree though the court was feeling suspicious of the

compromise and wanted presence of complainant to be secured

before it before the decree was passed.

The proceedings of the court and the several documents

relating thereto go to show that earlier the plaintiff

company was being represented by Shri Vidya Bhushan Sharma,

advocate. An application was moved on behalf of the

plaintiff discharging Shri Vidya Bhushan Sharma from the

case and instead engaging Shri Rajesh Jain, advocate on

behalf of the plaintiff and in place of Shri Vidya Bhushan

Sharma, advocate. On 17.11.1993 Shri D.P. Chadha was

present in the court though the defendant was not present

when an adjournment was taken from the court stating that

there was possibility of an amicable settlement between the

parties whereupon hearing was adjourned to 14.2.1994 for

reporting compromise or framing of issues. On 20.11.1993,

which was not a date fixed for hearing, Shri Rajesh Jain and

Shri Anil Sharma, advocates appeared in the court on behalf

of the plaintiff and the defendant respectively and filed a

compromise petition. Shri Anil Sharma filed Vakalatnama

purportedly on behalf of the complainant.

The compromise petition purports to have been signed

by the parties as also by Shri Rajesh Jain, advocate on

behalf of the plaintiff and Shri Anil Sharma, advocate on

behalf of the defendant. The compromise petition is

accompanied by another document purporting to be a receipt

executed by the complainant acknowledging receipt of an

amount of Rs.5 lakhs by way of damages for the loss of

school building standing on the premises. The receipt is

typed but the date 20.11.1993 is written in hand. A revenue

stamp of 20 p. is fixed on the receipt in a side of the

paper and at a place where ordinarily the ticket is not

affixed. The factum of the defendant having received an

amount of Rs.5 lakhs as consideration amount for the

compromise does not find a mention in the compromise

petition.

The Learned Additional Civil Judge before whom the

compromise petition was filed directed the parties to remain

personally present before the court on 17.12.1993 so as to

verify the compromise. Instead of complying with the

orders, Shri Rajesh Jain, advocate filed a misce. civil

appeal raising a plea that the trial court was not justified

in directing personal appearance of the parties and should

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have recorded the compromise on verification by the

advocates. The complainant Shri Triyugi Narain Mishra was

impleaded as respondent through advocate Shri Anil Sharma

__ as stated in the cause title of memo of appeal. The

appeal was filed on 20.12.1993. Notice of appeal was not

issued to the complainant; the same was issued in the name

of Shri Anil Sharma, advocate, who accepted the same. Shri

Anil Sharma, advocate did not file any vakalatnama on behalf

of the complainant in the appeal and instead made his

appearance by filing a memo of appearance reciting his

authority to appear in appeal on the basis of his being a

counsel for the complainant in the trial court. This appeal

was dismissed by the Learned Additional District Judge on

24.1.1994 holding the appeal to be not maintainable.

On 30.1.1994, the trial courts record was returned to

it by the appellate court. On 17.12.1993 also the trial

court had directed personal appearance of the parties. On

16.2.1994 the counsel appearing for the parties (the names

of the counsel not mentioned in the order sheet dated

16.2.1994) took time for submitting case law for the perusal

of the court. Similar prayer was made on 21.2.1994 and

18.3.1994. On 8.4.1994, the plaintiff was present with his

counsel. The defendant/complainant was not present. Shri

D.P. Chadha, advocate appeared on behalf of the defendant

and argued that personal presence of Shri Triyugi Narain

Mishra was not required for verification of compromise and

the presence of the advocate was enough for the court to

verify the compromise and take the same on record. The

court was requested to recall its earlier order directing

personal appearance of the parties. A few decided cases

were cited by Shri D.P. Chadha, advocate before the court

for its consideration. The trial court suspected the

conduct of the counsel and passed a detailed order directing

personal presence of the defendant to be secured before the

court. The trial court also directed a notice to be issued

to the defendant for his personal appearance on the next

date of hearing before passing any order on the compromise

petition.

Shri Rajesh Jain, advocate again filed an appeal

against the order dated 8.4.1994. Again the complainant was

arrayed as a respondent in the cause title through Shri

Anil Sharma, advocate. An application was moved before the

appellate court seeking a shorter date of hearing as

defendant was likely to go out. On 21.8.1994 the appellate

court directed the record of the trial court to be

requisitioned. Shri Anil Sharma, advocate appeared in the

appellate court without filing any vakalatnama from the

complainant. He conceded to the appeal being allowed and

personal appearance of the defendant not being insisted upon

for the purpose of recording the compromise. The appellate

court was apparently oblivious of the legal position that

such a misce. appeal was not maintainable under any

provision of law.

Certified copy of the order of the appellate court was

obtained in hot haste. Unfortunately, the Presiding Officer

of the trial court, who was dealing with the matter, had

stood transferred in the meanwhile. An application was

filed before the successor Trial Judge by Shri Rajesh Jain,

advocate requesting compliance with the order of the

appellate court and to record the compromise and pass a

decree in terms thereof dispensing with the necessity of

personal presence of the parties. On 23.7.1994, the Trial

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Judge, left with no other option, passed a decree in terms

of compromise in the presence of Shri Rajesh Jain & Shri

Anil Sharma, advocates. The decree directed the suit

premises to be vacated by 30.11.1993 (the date stated in the

compromise petition).

Shri Triyugi Narain Mishra, the complainant, moved the

State Bar Council complaining of the professional misconduct

of the three advocates who had colluded to bring the false

compromise in existence without his knowledge and also made

all effort to prevent the complainant gathering knowledge of

the alleged compromise.

In response of the notice issued by the State Bar

Council, Shri Anil Sharma, advocate submitted that he did

not know Shri Triyugi Narain Mishra personally. The

vakalatnama and the compromise petition were handed over to

him by Shri D.P. Chadha, advocate for the purpose of being

filed in the court. Shri Anil Sharma was told by Shri D.P.

Chadha, advocate that he was not well and if there was any

difficulty in securing the decree then he was available to

assist Shri Anil Sharma. In the two misce. civil appeals

preferred by Shri Rajesh Jain, advocate, Shri Anil Sharma

accepted the notices of the appeals on the advice of Shri

D.P. Chadha, advocate.

Shri D.P. Chadha, advocate took the plea that he was

not aware of the compromise petition and the various

proceedings relating thereto leading to verification of the

compromise and passing of the decree. He submitted that he

never obtained blank paper or blank vakalatnama signed by

any one at any time and not even Shri Triyugi Narain Mishra,

the complainant. He also submitted that on 8.4.1994 his

presence has been wrongly recorded in the proceedings and he

had not appeared before the court to argue that the personal

presence of the parties was not required for verification of

compromise petition filed in the court and counsel was

competent to sign and verify the compromise whereon the

court should act.

Amongst other witnesses the complainant and the three

counsel have all been examined by the State Bar Council and

cross examined by the parties to the disciplinary

proceedings. The defence raised by the appellant has been

discarded by the State Bar Council as well as by the Bar

Council of India in their orders. Both the authorities have

dealt extensively with the improbabilities of the defence

and assigned detailed reasons in support of the findings

arrived at by them. Both the authorities have found the

charge against the appellant proved to the hilt. The

statement of the complainant has been believed that he had

never entered into any compromise and he did not even have

knowledge of it. His statement that Shri D.P. Chadha, the

appellant, had obtained blank paper and blank vakalatnama

signed by him and the same have been utilised for the

purpose of fabricating the compromise and appointing Shri

Anil Sharma, advocate, has also been believed. Here it may

be noted that Shri D.P. Chadha had denied on oath having

obtained any blank paper or vakalatnama from Shri Triyugi

Narain Mishra. However, while cross-examining the

complainant first he was pinned down in stating that only

one paper and one vakalatnama (both blank) were signed by

him and then Shri D.P. Chadha produced from his possession

one blank vakalatnama & one blank paper signed by the

complainant. The Bar Council has found that the blank

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paper, so produced by the appellant, bore the signature of

the complainant almost at the same place of the blank space

at which the signature appears on the disputed compromise.

Production of signed blank vakalatnama and blank paper from

the custody of the complainant before the Bar Council belied

the appellants defence emphatically raised in his written

statement. On 8.4.1994 the presence of the appellant is

recorded by the trial court at least at two places in the

order sheet of that date. It is specifically recorded in

the context of his making submissions before the court

relying on several rulings to submit that personal

appearance of the party was not necessary to have the

compromise verified and taken on record. The appellant had

not moved the court at any time for correcting the record of

the proceedings and deleting his appearance only if the

order sheet did not correctly record the proceedings of the

court. On and around the filing of the compromise petition

before the trial court the appellant was keeping a watch on

the proceedings and noting the appointed dates of hearing

though he was not actually appearing in the court on the

dates other than 8.4.1994. In short, it has been found both

by the State Bar Council and the Bar Council of India that

the complainant had not entered in any compromise and that

he was not even aware of it. Blank vakalatnama and blank

paper entrusted by him in confidence to his counsel, i.e.

the appellant, were used for the purpose of bringing a false

compromise into existence and appointing Shri Anil Sharma,

advocate for the defendant, without his knowledge, to have

compromise verified and brought on record followed by a

decree. Shri Vidya Bhushan Sharma, the counsel originally

appointed by the plaintiff might not have agreed to a decree

being secured in favour of the plaintiff on the basis of a

false compromise and that is why he was excluded from the

proceedings and instead Shri Rajesh Jain was brought to

replace him. The decree resulted into closure of the

school, demolition of school building and about 2000

students studying in the school being thrown on the road.

We have heard the learned counsel for the parties at

length. We have also gone through the evidence and the

relevant documents available on record of the Bar Council.

We are of the opinion that the State Bar Council as well as

the Bar Council of India have correctly arrived at the

findings of the fact and we too find ourselves entirely in

agreement with the findings so arrived at.

In the very nature of things there was nothing like

emergency, not even an urgency for securing verification of

compromise and passing of a decree in terms thereof.

Heavens were not going to fall if the recording of the

compromise was delayed a little and the defendant was

personally produced in the court who was certainly not

available in Jaipur being away in the State of U.P.

contesting an election. The counsel for the parties were

replaced apparently for no reason. The trial court

entertained doubts about the genuineness of the compromise

and therefore directed personal appearance of the parties

for verification of the compromise. The counsel appearing

in the case made all possible efforts at avoiding compliance

with the direction of the trial court and to see that the

compromise was verified and taken on record culminating into

a decree without the knowledge of the defendant/complainant.

Instead of securing presence of the defendant before the

court, the counsel preferred misce. appeals twice and

ultimately succeeded in securing an appellate order, which

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too is collusive, directing the trial court to verify and

take on record the compromise without insisting on personal

appearance of the defendant. Such miscellaneous appeal, as

was preferred, was not maintainable under Section 104 or

Order 43 Rule 1 of the C.P.C. or any other provision of

law. In an earlier round the appellate court had expressed

that view. The proceedings in the appellate court as also

before the trial court show an effort on the part of the

counsel appearing thereat to have the matter as to

compromise disposed of hurriedly, obviously with a view to

exclude the possibility of the defendant-complainant

gathering any knowledge of what was transpiring.

Order 23 Rule 3 of the C.P.C. reads as under:-

Compromise of suit. __ Where it is proved to the

satisfaction of the Court that a suit has been adjusted

wholly or in part by any lawful agreement or compromise, in

writing and signed by the parties, or where the defendant

satisfies the plaintiff in respect of the whole or any part

of the subject-matter of the suit, the Court shall order

such agreement, compromise or satisfaction to be recorded,

and shall pass a decree in accordance therewith so far as it

relates to the parties to the suit, whether or not the

subject matter of the agreement, compromise or satisfaction

is the same as the subject-matter of the suit.

xxx xxx xxx xxx xxx xxx xxx xxx

Byram Pestonji Gariwala Vs. Union of India & Ors.

AIR 1991 SC 2234 is an authority for the proposition that

inspite of the 1976 Amendment in Order 23 Rule 3 of the

C.P.C. which requires agreement or compromise between the

parties to be in writing and signed by the parties, the

implied authority of counsel engaged in the thick of the

proceedings in court, to compromise or agree on matters

relating to the parties, was not taken away. Neither the

decision in Byram Pestonji Gariwala nor any other authority

cited on 8.4.1994 before the trial court dispenses with the

need of the agreement or compromise being proved to the

satisfaction of the court. In order to be satisfied whether

the compromise was genuine and voluntarily entered into by

the defendant, the trial court had felt the need of parties

appearing in person before the court and verifying the

compromise. In the facts & circumstances of the case the

move of the counsel resisting compliance with the direction

of the court was nothing short of being sinister. The

learned Additional District Judge who allowed the appeal

preferred by Shri Rajesh Jain unwittingly fell into trap.

It was expected of the learned Additional District Judge,

who must have been a senior judicial officer, to have seen

that he was allowing an appeal which was not even

maintainable. But for his order the learned Judge of the

trial court would not have taken on record the compromise

and passed decree in terms thereof unless the parties had

personally appeared before him. In our opinion the

appellant Shri D.P. Chadha was not right in resisting the

order of the trial court requiring personal appearance of

the defendant for verifying the compromise. This resistance

speaks volumes of sinister design working in the minds of

the guilty advocates. Even during the course of these

proceedings and also during the course of hearing of the

appeal before us there is not the slightest indication of

any justification behind resistance offered by the counsel

to the appearance of the defendant in the trial court. The

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correctness of the proceedings dated 8.4.1994 as recorded by

the court cannot be doubted. The order sheet of the trial

court dated 8.4.1994 records as under:

8.4.94

(Cutting). Plaintiff with counsel present.

Defendants counsel Shri D.P.Chadha present. Arguments

heard. Judicial precedents A.I.R. 1980 Cal 51, A.I.R.

1976 Raj. 195, A.I.R. 1991 SC 2234 cited by Shri D.P.

Chadha perused. In the matter under consideration,

compromise was filed on 20.11.93 and the same day the

counsel were directed to keep the parties present in court

but parties were not produced. On behalf of the plaintiff-

appellant, an appeal was also preferred against the order

dated 20.11.93 before the Honble Distt. & Sessions Judge

but the order of trial court being not appealable, appeal

has been dismissed.

Para No.40 of the decision A.I.R. 1991 SC 2234 is as

under :

Accordingly, we are of the view that the words in

writing and signed by the parties inserted by the

CPC(Amendment) Act, 1976 must necessarily mean to borrow the

language of Order III R.1 CPC.

Any appearance . . . . . . . . . or by a

pleader appearing applying or acting as the case may be on

his behalf.

Provided that any such appearance shall if the court

so desires be made by the party in person.

Thus in my view the court can direct any party to be

present in court under Order III R.1 in compliance with the

said decision of Honble Supreme Court. The counsel for the

defendant has not produced the defendant in court.

Therefore, notice be issued to the defendant to appear

personally in court. For service of notice, the case be put

up on 5.5.94. Before (cutting) preparing the decree on the

basis of compromise, I deem it proper in the interest of

justice to direct the opposite party to personally appear in

the court.

Sd/- Illegible Seal of Addl. Civil Judge & Addl.

Chief Judl. Magistrate No.6, Jaipur City.

[underlining by us]

The record of the proceedings made by the court is

sacrosanct. The correctness thereof cannot be doubted

merely for asking. In State of Maharashtra Vs. Ramdas

Shrinivas Nayak & Anr. AIR 1982 SC 1249, this court has

held . . . . . . . . . .the Judges record was

conclusive. Neither lawyer not litigant may claim to

contradict it, except before the Judge himself, but nowhere

else. The court could not launch into inquiry as to what

transpired in the High Court.

The Court is bound to accept the statement of the

Judges recorded in their judgment, as to what transpired in

court. It cannot allow the statement of the Judges to be

contradicted by statements at the Bar or by affidavit and

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other evidence. If the Judges say in their judgment that

something was done, said or admitted before them, that has

to be the last word on the subject. The principle is well

settled that statements of fact as to what transpired at the

hearing, recorded in the judgment of the court, are

conclusive of the facts so stated and no one can contradict

such statements by affidavit or other evidence. If a party

thinks that the happenings in court have been wrongly

recorded in a judgment, it is incumbent upon the party,

while the matter is still fresh in the minds of the Judges,

to call the attention of the very Judges who have made the

record to the fact that the statement made with regard to

his conduct was a statement that had been made in error.

That is the only way to have the record corrected. If no

such step is taken, the matter must necessarily end there.

Again in Bhagwati Prasad & Ors. Vs. Delhi State

Mineral Development Corporation - AIR 1990 SC 371 this Court

has held : It is now settled law that the statement of

facts recorded by a Court or Quasi-Judicial Tribunal in its

proceedings as regards the matters which transpired during

the hearing before it would not be permitted to be assailed

as incorrect unless steps are taken before the same forum.

It may be open to a party to bring such statement to the

notice of the Court/Tribunal and to have it deleted or

amended. It is not, therefore, open to the parties or the

Counsel to say that the proceedings recorded by the Tribunal

are incorrect.

The explanation given by the appellant for not moving

the trial court for rectification in the record of

proceedings is that the presiding judge of the court had

stood transferred and therefore it would have been futile to

move for rectification. Such an explanation is a ruse

merely. The application for rectification should have been

moved as the only course permissible and, if necessary, the

record could have been sent to that very judge for dealing

with prayer of rectification wherever he was posted. In the

absence of steps for rectification having been taken a

challenge to the correctness of the facts recorded in order

sheet of the court cannot be entertained, much less upheld.

We agree with the finding recorded in the order under appeal

that the proceedings dated 8.4.1994 correctly state the

appellant having appeared in the court and argued the matter

in the manner recited therein.

The term misconduct has not been defined in the Act.

However, it is an expression with a sufficiently wide

meaning. In view of the prime position which the advocates

occupy in the process of administration of justice and

justice delivery system, the courts justifiably expect from

the lawyers a high standard of professional and moral

obligation in the discharge of their duties. Any act or

omission on the part of a lawyer which interrupts or

misdirects the sacred flow of justice or which renders a

professional unworthy of right to exercise the privilege of

the profession would amount to misconduct attracting the

wrath of disciplinary jurisdiction. In the Bar Council of

Maharashtra Vs. M.V. Dabholkar (1976 (2) SCC 291), Krishna

Iyer, J. said that the vital role of the lawyer depends

upon his probity and professional lifestyle. The central

function of the legal profession is to promote the

administration of justice. As monopoly to legal profession

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has been statutorily granted by the nation, it obligates the

lawyer to observe scrupulously those norms which make him

worthy of confidence of community in him as a vehicle of

justice __ social justice. The Bar cannot behave with

doubtful scruples or strive to thrive on litigation. Canons

of conduct cannot be crystalised into rigid rules but felt

by the collective conscience of the practitioners as right.

Law is no trade, briefs no merchandise. Foreseeing the

role which the legal profession has to play in shaping the

society and building the nation, Krishna Iyer, J. goes on

to say __

For the practice of Law with expanding activist

horizons, professional ethics cannot be contained in a Bar

Council rule nor in traditional cant in the books but in new

canons of conscience which will command the members of the

calling of justice to obey rules of morality and utility,

clear in the crystallized case-law and concrete when tested

on the qualms of high norms __ simple enough in given

situations, though involved when expressed in a single

sentence.

A mere error of judgment or expression of a reasonable

opinion or taking a stand on a doubtful or debatable issue

of law is not a misconduct; the term takes its colour from

the underlying intention. But at the same time misconduct

is not necessarily something involving moral turpitude. It

is a relative term to be construed by reference to the

subject matter and the context wherein the term is called

upon to be employed. A lawyer in discharging his

professional assignment has a duty to his client, a duty to

his opponent, a duty to the court, a duty to the society at

large and a duty to himself. It needs a high degree of

probity and poise to strike a balance and arrive at the

place of righteous stand more so when there are conflicting

claims. While discharging duty to the court, a lawyer

should never knowingly be a party to any deception, design

or fraud. While placing the law before the court a lawyer

is at liberty to put forth a proposition and canvass the

same to the best of his wits and ability so as to persuade

an exposition which would serve the interest of his client

so long as the issue is capable of that resolution by

adopting a process of reasoning. However, a point of law

well settled or admitting of no controversy must not be

dragged into doubt solely with a view to confuse or mislead

the Judge and thereby gaining an undue advantage to the

client to which he may not be entitled. Such conduct of an

advocate becomes worse when a view of the law canvassed by

him is not only unsupportable in law but if accepted would

damage the interest of the client and confer an illegitimate

advantage on the opponent. In such a situation the wrong of

the intention and impropriety of the conduct is more than

apparent. Professional misconduct is grave when it consists

of betraying the confidence of a client and is gravest when

it is a deliberate attempt at misleading the court or an

attempt at practising deception or fraud on the court. The

client places his faith and fortune in the hands of the

counsel for the purpose of that case; the court places its

confidence in the counsel in case after case and day after

day. A client dissatisfied with his counsel may change him

but the same is not with the court. And so the bondage of

trust between the court and the counsel admits of no

breaking.

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In George Frier Grahame Vs. Attorney-General, Fiji

[AIR 1936 PC 224] the Privy Council has approved the

following definition of professional misconduct given by

Darling J. in Re A Solicitor ex parte the Law Society

[(1912) 1 KB 302] -

If it is shown that an Advocate 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 brethren of good repute and competency,

then it is open to say that he is guilty of professional

misconduct.

It has been a saying as old as the profession itself

that the court and counsel are two wheels of the chariot of

justice. In adversarial system it will be more appropriate

to say __ while the Judge holds the reigns, the two opponent

counsel are the wheels of the chariot. While the direction

of the movement is controlled by the Judge holding the

reigns, the movement itself is facilitated by the wheels

without which the chariot of justice may not move and may

even collapse. Mutual confidence in the discharge of duties

and cordial relations between Bench and Bar smoothen the

movement of chariot. As a responsible officer of the court,

as they are called __ and rightly, the counsel have an over

all obligation of assisting the courts in a just and proper

manner in the just and proper administration of justice.

Zeal and enthusiasm are the traits of success in profession

but over- zealousness and misguided enthusiasm have no place

in the personality of a professional.

An advocate while discharging duty to his client, has

a right to do every thing fearlessly and boldly that would

advance the cause of his client. After all he has been

engaged by his client to secure justice for him. A counsel

need not make a concession merely because it would please

the Judge. Yet a counsel, in his zeal to earn success for a

client, need not step over the well defined limits or

propriety, repute and justness. Independence and

fearlessness are not licences of liberty to do anything in

the court and to earn success to a client whatever be the

cost and whatever be the sacrifice of professional norms.

A lawyer must not hesitate in telling the court the

correct position of law when it is undisputed and admits of

no exception. A view of the law settled by the ruling of a

superior court or a binding precedent even if it does not

serve the cause of his client, must be brought to the notice

of court unhesitatingly. This obligation of a counsel flows

from the confidence reposed by the court in the counsel

appearing for any of the two sides. A counsel, being an

officer of court, shall apprise the Judge with the correct

position of law whether for or against either party.

Mr. Justice Crampton, an Irish Judge, said in Queen

Vs. OConnell, 7 Irish Law Reports, at page 313:

The advocate is a representative but not a delegate.

He gives to his client the benefit of his learning, his

talents and his judgment; but all through he never forgets

what he owes to himself and to others. He will not

knowingly misstate the law, he will not wilfully misstate

the facts, though it be to gain the case for his client. He

will ever bear in mind that if he be an advocate of an

individual and retained and remunerated often inadequately,

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for valuable services, yet he has a prior and perpetual

retainer on behalf of truth and justice and there is no

Crown or other license which in any case or for any party or

purpose can discharge him from that primary and paramount

retainer.

We are aware that a charge of misconduct is a serious

matter for a practising advocate. A verdict of guilt of

professional or other misconduct may result in reprimanding

the advocate, suspending the advocate from practice for such

period as may be deemed fit or even removing the name of the

advocate from the roll of advocates which would cost the

counsel his career. Therefore, an allegation of misconduct

has to be proved to the hilt. The evidence adduced should

enable a finding being recorded without any element of

reasonable doubt. In the present case, both the State Bar

Council and the Bar Council of India have arrived at, on

proper appreciation of evidence, a finding of professional

misconduct having been committed by the appellant. No

misreading or non-reading of the evidence has been pointed

out. The involvement of the appellant in creating a

situation resulting into recording of a false and fabricated

compromise, apparently detrimental to the interest of his

client, is clearly spelled out by the findings concurrently

arrived at with which we have found no reason to interfere.

The appellant canvassed a proposition of law before the

court by pressing into service such rulings which did not

support the interpretation which he was frantically

persuading the court to accept. The provisions of Rule 3 of

Order 23 are clear. The crucial issue in the case was not

the authority of a counsel to enter into a compromise,

settlement or adjustment on behalf of the client. The real

issue was of the satisfaction of the court whether the

defendant had really, and as a matter of fact, entered into

settlement. The trial judge entertained a doubt about it

and therefore insisted on the personal appearance of the

party to satisfy himself as to the correctness of the factum

of compromise and genuineness of the statement that the

defendant had in fact compromised the suit in the manner set

out in the petition of compromise.

The power of the court to direct personal presence of

any party is inherent and implicit in jurisdiction vesting

in the court to take decision. This power is a necessary

concomitant of courts obligation to arrive at a

satisfaction and record the same as spelt out from the

phraseology of Order 23 Rule 3 C.P.C.. It is explicit in

Order 3 Rule 1. This position of law admits of no doubt.

Strong resistance was offered to an innocuous and cautious

order of the court by canvassing an utterly misconceived

proposition, even by invoking a wrong appellate forum and

with an ulterior motive. The counsel appearing for the

defendant, including the appellant, did their best to see

that their own client did not appear in the court and

thereby gather knowledge of such proceedings. At no stage,

including the hearing before this court, the appellant has

been able to explain how and in what manner he was serving

the interest of his client, i.e. the defendant in the suit

by raising the plea which he did. What was the urgency of

having the compromise recorded without producing the

defendant in-person before the court when the court was

insisting on such appearance? The compromise was filed in

the court. The defendant was away electioneering in his

constituency. At best or at the worst, the recording of the

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compromise would have been delayed by a few days. In the

facts and circumstances of the case we find no reason to

dislodge the finding of professional misconduct as arrived

at by the State Bar Council and the Bar Council of India.

It has been lastly contended by the learned counsel

for the appellant that the Bar Council of India was not

justified in enhancing the punishment by increasing the

period of suspension from practice from 5 years to 10 years.

It is submitted that the order enhancing the punishment to

the prejudice of the appellant is vitiated by non-

compliance with principles of natural justice and also for

having been passed without affording the appellant a

reasonable opportunity of being heard.

Section 37 of the Advocates Act, 1961 provides as

under:- 37. Appeal to Bar Council of India. - (1) Any

person aggrieved by an order of the disciplinary committee

of a State Bar Council made under Section 35 [or the

Advocate General of the State] may, within sixty days of the

date of communication of the order to him, prefer an appeal

to the Bar Council of India.

(2) Every such appeal shall be heard by the

disciplinary committee of the Bar Council of India which may

pass such order [including an order varying the punishment

awarded by the disciplinary committee of the State Bar

Council] thereon as it deems fit :

[Provided that no order of the disciplinary committee

of the State Bar Council shall be varied by the disciplinary

committee of the Bar Council of India so as to prejudicially

affect the person aggrieved without giving him reasonable

opportunity of being heard.}

Very wide jurisdiction has been conferred on the Bar

Council of India by sub-section (2) of Section 37. The Bar

Council of India may confirm, vary or reverse the order of

the State Bar Council and may remit or remand the matter for

further hearing or rehearing subject to such terms and

directions as it deems fit. The Bar Council of India may

set aside an order dismissing the complaint passed by the

State Bar Council and convert it into an order holding the

advocate proceeded against guilty of professional or other

misconduct. In such a case, obviously, the Bar Council of

India may pass an order of punishment which the State Bar

Council could have passed. While confirming the finding of

guilt the Bar Council of India may vary the punishment

awarded by the Disciplinary Committee of the State Bar

Council which power to vary would include the power to

enhance the punishment. An order enhancing the punishment,

being an order prejudicially affecting the advocate, the

proviso mandates the exercise of such power to be performed

only after giving the advocate reasonable opportunity of

being heard. The proviso embodies the rule of fair hearing.

Accordingly, and consistently with the well-settled

principles of natural justice, if the Bar Council of India

proposes to enhance the punishment it must put the guilty

advocate specifically on notice that the punishment imposed

on him is proposed to be enhanced. The advocate should be

given a reasonable opportunity of showing cause against such

proposed enhancement and then he should be heard.

In the case at hand we have perused the proceedings of

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the Bar Council of India. The complainant did not file any

appeal or application before the Bar Council of India

praying for enhancement of punishment. The appeal filed by

the appellant was being heard and during the course of such

hearing it appears that the Disciplinary Committee of the

Bar Council of India indicated to the appellants counsel

that it was inclined to enhance the punishment. This is

reflected by the following passage occurring in the order

under appeal:- While hearing the matter finally parties

were also heard as to the enhancement of sentence.

The appellant himself was not present on the date of

hearing. He had prayed for an adjournment on the ground of

his sickness which was refused. The counsel for the

appellant was heard in appeal. It would have been better if

the Bar Council of India having heard the appeal would have

first placed its opinion on record that the findings arrived

at by the State Bar Council against the appellant were being

upheld by it. Then the appellant should have been issued a

reasonable notice calling upon him to show cause why the

punishment imposed by the State Bar Council be not enhanced.

After giving him an opportunity of filing a reply and then

hearing him the Bar Council could have for reasons to be

placed on record, enhanced the punishment. Nothing such was

done. The exercise by the Bar Council of India of power to

vary the sentence to the prejudice of the appellant is

vitiated in the present case for not giving the appellant

reasonable opportunity of being heard. The appellant is

about 60 years of age. The misconduct alleged relates to

the year 1993. The order of State Bar Council was passed in

December 1995. In the fact and circumstances of the case we

are not inclined to remit the matter now to the Bar Council

of India for compliance with the requirements of proviso to

sub-section (2) of Section 37 of the Act as it would entail

further delay and as we are also of the opinion that the

punishment awarded by the State Bar Council meets the ends

of justice.

For the foregoing reasons the appeal is partly

allowed. The finding that the appellant is guilty of

professional misconduct is upheld but the sentence awarded

by the Rajasthan State Bar Council suspending the appellant

from practice for a period of five years is upheld and

restored. Accordingly, the order of the Bar Council of

India, only to the extent of enhancing the punishment, is

set aside. No order as to the costs.

The Bar Council of India, by its order under appeal,

directed notices to be issued to Shri Rajesh Jain & Shri

Anil Sharma, Advocates, respectively, for initiating

proceedings for professional misconduct and for enhancement

of punishment. During the course of hearing we had enquired

from the learned counsel for the parties as to what was the

status of such proceedings. We were told that the

proceedings were lying where they were presumably because

the records of the State Bar Council and the Bar Council of

India were requisitioned here. The records shall be sent

back and the proceedings, directed to be initiated, shall

now be commenced without any further loss of time. We,

however, express no opinion regarding that aspect of the

matter at this stage.

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. . . . . . . . . . . . . . . . . .

. . .CJI.

. . . . . . . . . . . . . . . . . .

. . . . .J. ( R.C. Lahoti )

. . . . . . . . . . . . . . . . . .

. . . . .J. ( K.G. Balakrishnan )

New Delhi; December 5, 2000.

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