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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 2293 OF 2005

DHANRAJ SINGH CHOUDAHRY                 Appellant (s)

                VERSUS

NATHULAL VISHWAKARMA                    Respondent(s)

WITH  

Civil Appeal NO. 4484 of 2005

J  U  D  G  M  E  N  T

R.M. Lodha, J.

    These  two  Appeals  have  been  preferred  by  

Advocate Dhanraj Singh Choudhary (for short, 'advocate  

appellant')  being  dissatisfied  with  the  two  orders  

dated  October  31,  2004  passed  by  the  Disciplinary  

Committee of the Bar Council of India. By the principal  

order, the advocate appellant has been suspended from  

practice for a period of one year from the date of  

communication of the order.

2.  On the complaint made by the respondent-Nathulal  

Vishwakarma against the advocate appellant to the Bar

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Council  of  Madhya  Pradesh,  Jabalpur,  the  matter  was  

referred to the Disciplinary Committee of the State Bar  

Council.  The  allegation  of  professional  mis-conduct  

against the advocate appellant is that in the sale deed  

dated November 3, 1999 executed by Jitender Singh Bakna  

in  favour  of  Smt.  Suchi  Gupta  concerning  sale  of  

property  House  No.  423  situate  in  Nursing  Ward,  

Jabalpur, which was attested by the advocate appellant,  

it has been stated that on the Western side of the  

saleable property one shop adjacent to Sahara lounge  

presently in occupation of the complainant has already  

been  transferred  by  the  vendor  to  the  advocate  

appellant by giving him the ownership right, although  

vendor's  father  Sardar  Desh  Singh  Bakna  had  entered  

into  an  agreement  to  sell  the  suit  property  to  the  

complainant  on  November  15,  1991  and  the  vendor's  

father has already received an amount of Rs. 2,00,000/-  

towards the sale consideration. The complainant alleged  

that  he  had  already  filed  a  suit  for  specific  

performance of the agreement dated November 15, 1991  

which was pending and was within the knowledge of the  

advocate appellant.  As a matter of fact, the advocate  

appellant  had  instituted  a  suit on behalf of Sardar

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Desh Singh Bakna against the complainant for eviction  

of the said shop showing the complainant as a tenant of  

Sardar Desh Singh Bakna.

3.On notice, the advocate appellant filed reply to the  

complaint and denied the allegations made against him.  

In  his  reply,  the  advocate  appellant  explained  the  

circumstances in which the sale deed dated November 3,  

1999 was executed. He expressed his ignorance about the  

statement made in the sale deed dated November 3, 1999  

regarding sale of shop in occupation of the complainant  

to the advocate appellant by the vendor.

4.On  the  pleadings  of  the  parties,  the  Disciplinary  

Committee  of  the  State  Bar  Council  framed  the  

following issues :-  

1.  (a)  Whether  the  Respondent-Advocate  purchased  the  property  from  Jitendra  Singh Bhakna as described at Page No. 5  in Sale Deed dated 3.11.99 of which the  Respondent  Advocate  who  was  attesting  witness? (b)  Whether  the  Respondent  Advocate  deliberately filed suit for eviction in  the  name  of  Jitendra  Singh  Bhakna  against  the  complainant  although  the  respondent  was  the  owner  thereof  as  mentioned  in  the  sale  deed  dated  3.11.99? (c) Whether the respondent advocate has  been guilty of professional mis-conduct?

2.  Result ?     

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5. The  complainant  and  the  advocate  appellant  

examined  themselves  and  also  tendered  documents  in  

support  of  their  respective  case.  The  Disciplinary  

Committee of the State Bar Council, after hearing the  

parties and on consideration of the evidence tendered  

by  them,  recorded  its  finding  against  the  advocate  

appellant on the above issues and held the advocate  

appellant guilty of professional mis-conduct.  Having  

adjudged the advocate appellant guilty of professional  

mis-conduct,  the  Disciplinary  Committee,  State  Bar  

Council,  Madhya  Pradesh,  awarded  punishment  of  

reprimand  to  the  advocate  appellant  vide  its  order  

dated April 22, 2002.

6. Not satisfied with the order dated April 22,  

2002 passed by the Disciplinary Committee, State Bar  

Council,  Madhya  Pradesh,  the  complainant  preferred  

appeal  under  Section  37  of  the  Advocates  Act,  1961  

(for short, '1961 Act') to the Bar Council of India.  

The Disciplinary Committee of the Bar Council of India  

issued notice to the advocate appellant on October 5,  

2004 intimating him that the matter has been kept on  

October  30,  2004.  On  receipt  of  the  notice,  the  

advocate  appellant  appeared  before  the  Disciplinary

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Committee of the Bar Council of India, which heard the  

appeal preferred by the complainant for enhancement of  

the  punishment  on  October  30,  2004.  After  the  

conclusion  of  the  hearing  of  that  appeal,  an  

application  was  filed  by  the  advocate  appellant  

seeking permission to file cross-appeal and the cross-

appeal was tendered.

7. The Disciplinary Committee of the Bar Council  

of India, vide its judgment dated October 31, 2004,  

allowed the appeal of the complainant; modified the  

punishment  of  reprimand  awarded  by  the  Disciplinary  

Committee  of  the  State  Bar  Council  and  ordered  his  

suspension from practice for a period of one year from  

the date of communication of the order.  By a separate  

order passed on that day, i.e., October 31, 2004, the  

cross-appeal preferred by the advocate appellant was  

dismissed.

8. Civil Appeal No. 2293 of 2005 preferred by the  

advocate  appellant  arises  from  the  order  of  the  

Disciplinary  Committee  of  the  Bar  Council  of  India  

whereby  complainant's  appeal  for  enhancement  of  

punishment has been allowed, while Civil Appeal No.  

4484  of  2005  has  been  preferred  by  the  advocate

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appellant aggrieved by the order dismissing his cross-

appeal as not maintainable.

9. The order dated October 31, 2004, whereby the  

advocate appellant's cross-appeal has been dismissed  

by the Disciplinary Committee of the Bar Council of  

India, reads as follows :-

“After  the  conclusion  of  hearing  of  Disciplinary  Appeal  No.  55  of  2002,  an  application has been filed by the respondent- advocate seeking permission to file a cross- appeal  in  the  above  noted  appeal.   Under  Section  37  of  the  Advocates  Act  an  appeal  should be filed within period of 60 days from  the date of communication of the order passed  by the Disciplinary Committee of the State  Bar Council.  There is however no provision  for filing application seeking permission to  file any appeal or cross-appeal.  Therefore,  the  application  filed  by  the  respondent- advocate  seeking  permission  to  file  cross  appeal cannot be entertained and as such the  same  is  liable  to  be  rejected.  The  application filed by the respondent-advocate  is  accordingly  dismissed  as  not  being  maintainable.”

10. We find no legal infirmity in the order passed  

by the Disciplinary Committee of the Bar Council of  

India in not entertaining the cross-appeal preferred  

by the advocate appellant.

11.Section 37(1) of the 1961 Act provides for a remedy  

of  an  appeal  to  any  person  aggrieved  by  an  order

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of the disciplinary committee of a State Bar Council  

under  Section  35  to  prefer  an  appeal  to  the  Bar  

Council of India within 60 days of the date of the  

communication  of  the  order  to  him.   Proviso  that  

follows sub-section (2) of Section 37 provides that  

the disciplinary committee of the Bar Council of India  

shall not vary the order of the disciplinary committee  

of  the  State  Bar  Council  affecting  the  person  

prejudicially  without  giving  him  reasonable  

opportunity  of  being  heard.  In  the  cross-appeal  

preferred by the advocate appellant, it is stated that  

being  aggrieved  by  the  order  dated  April  22,  2002  

passed by the Disciplinary Committee of the State Bar  

Council,  Madhya  Pradesh,  the  cross-appeal  is  being  

preferred  by  the  respondent  therein  (advocate  

appellant herein). As a matter of law, Section 37 of  

the 1961 Act does not contemplate cross-appeal. This  

position is not disputed by Mr. S.B. Sanyal, learned  

senior counsel for the advocate appellant. He would,  

however, submit that the advocate appellant preferred  

cross-objections (titled cross-appeal) within 30 days  

of the receipt of the notice of the appeal preferred  

by  the  complainant  and  that  is  permissible under  

Order  41  Rule  22  of  the  Code

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of Civil Procedure, 1908 (for short, 'the Code') which  

is  applicable  to  the  proceedings  before  the  

Disciplinary Committee of the Bar Council of India.

12. We do not agree with the submission of Mr.  

S.B. Sanyal, learned senior counsel for the advocate  

appellant.  The Code has not been made applicable as  

it  is  to  the  proceedings  before  the  disciplinary  

committee.   Section  42  of  the  1961  Act  makes  

applicable  provisions  of  the  Code  in  respect  of  

matters  contained  therein  while  providing  that  the  

disciplinary committee of a Bar Council shall have the  

same  powers  as  are  vested  in  a  civil  court.  The  

matters contained in Section 42 do not refer to the  

appeals.  Thus, the provisions contained in Order 41  

of  the  Code,  including  Rule  22  thereof,  have  no  

applicability to the proceedings before a Disciplinary  

Committee.

13. Appeal is a creature of statute.  The extent  

and  scope  of  an  appeal  is  governed  by  statutory  

provisions.  Section  37  of  the  1961  Act  is  the  

statutory provision for an appeal to the Bar Council  

of India from the order of the disciplinary committee  

of the State Bar Council.  Section 39 of the 1961  

Act,  however,  makes  Sections  5  and  12  of  the

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Limitation  Act,  1963  applicable  to  the  appeals  

preferred under Section 37 and Section 38 of the 1961  

Act. There is no provision like Order 41 Rule 22 of  

the Code in the 1961 Act.  The cross-objections titled  

'cross-appeal'  preferred  by  the  advocate  appellant  

being wholly mis-conceived have rightly been held to  

be not maintainable by the Disciplinary Committee of  

the Bar Council of India.

14.  There may not be any difficulty in treating  

the  'cross-appeal'   preferred  by  the  advocate  

appellant as an appeal under Section 37 of the 1961  

Act, but then such appeal is hopelessly time barred.  

The order was passed by the Disciplinary Committee of  

the State Bar Council on April 22, 2002. The advocate  

appellant presented his appeal (titled 'cross-appeal')  

before the Disciplinary Committee of the Bar Council  

of India on October 30, 2004, i.e., after more than  

two years. No application for condonation of delay has  

been made. In this view of the matter also the cross-

appeal preferred by the advocate appellant was liable  

to be dismissed and has rightly been dismissed.

15. The Disciplinary Committee of the State Bar  

Council has considered the entire material, including  

the  evidence  of  the  complainant  and  the  advocate

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appellant and arrived at the finding that the advocate  

appellant was guilty of professional mis-conduct for  

having attested the sale deed dated November 3, 1999  

containing a statement that the shop on the western  

side  of  the  saleable  property  in  occupation  of  the  

complainant  has  already  been  transferred  to  the  

advocate appellant by giving him ownership right.  The  

attestation  of  the  sale  deed  containing  the  above  

statement, which was apparently false to the knowledge  

of advocate appellant, amounted to professional mis-

conduct.   The  vendor-Jitender  Singh  Bakna  and  his  

father Sardar Desh Singh Bakna were the clients of the  

advocate appellant. As a matter of fact, the advocate  

appellant had filed a suit on behalf of the vendor  

against the complainant seeking his eviction from the  

premises for which the statement was made in the sale  

deed dated November 3, 1999 that the said premises in  

occupation of the complainant has been transferred by  

the vendor to the advocate appellant.   

16. From the material on record the professional  

mis-conduct  of  the  advocate  appellant  is  clearly  

established  and  the  Disciplinary  Committee  of  the  

State Bar Council, Madhya Pradesh, cannot be said to  

have committed any error in holding him guilty of the

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professional  mis-conduct.   Having  held  that,  the  

Disciplinary  Committee  of  the  State  Bar  Council  

awarded  him  punishment  of  reprimand.  Against  the  

inadequate  punishment  awarded  to  the  advocate  

appellant for the proved professional mis-conduct, the  

complainant preferred appeal. In that appeal, notice  

was issued to the advocate appellant and in response  

thereto,  he  did  appear  before  the  Disciplinary  

Committee of the Bar Council of India on October 30,  

2004  and  was  fully  heard.  The  requirement  of  the  

proviso  appended  to  Section  37(2)  of  the  1961  is,  

thus,  fully met.

17. The legal profession is a noble profession.  

It is not a business or a trade.  A person practising  

law has to practise in the spirit of honesty and not  

in the spirit of mischief-making or money-getting.  An  

advocate's  attitude  towards  and  dealings  with  his  

client has to be scrupulously honest and fair.

18. In V.C. Rangadurai  Vs. D. Gopalan and others1  

Krishna Iyer, J. stated :-

“Law's nobility as a profession lasts only so  long as the members maintain their commitment  to integrity and service to the community.”

1 AIR 1979 SC 281

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19. 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.

20. In the above backdrop, if the conduct of the  

advocate appellant is seen, it becomes clear that he  

was privy to the following false statement recorded in  

the sale deed dated November 3, 1999 :-

“That  on  the  Western  side  of  the  saleable  property  one  shop  adjacent  to  the  Sahara  lounge  having  257  sq.ft.  is  there  and  in  which at present Shri Nathu Lal Vishwakarma  runs the hotel and the same has already been  transferred by the Seller to Shri Dhan Raj  Singh Choudhary by giving him the ownership  right....”

21. In  his  deposition  before  the  Disciplinary  

Committee,  State  Bar  Council,  Madhya  Pradesh,  the  

advocate appellant stated that he came to know of the  

said  fact  when  the  complainant  had  lodged  the  

complaint against him. His explanation does not merit  

acceptance.  On  a  question  put  by  the  Disciplinary  

Committee  to him that prior to signing the sale deed

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dated November 3, 1999 in the form of witness why did  

he not read the said document, his reply was that he  

did not consider it essential to read the contents of  

the sale deed.  Can it be believed? We think not.  It  

was not only undesirable but highly unethical on the  

part of the advocate appellant to have created title  

or at least having attempted to create title in him in  

respect  of  the  property  for  which  litigation  was  

pending in the court and he was representing one of  

the  parties  in  that  litigation.   But  for  his  

connivance with the vendor, no such statement would  

have found place in the sale deed dated November 3,  

1999.  The professional misconduct proved against the  

advocate appellant is quite grave and serious.  The  

question now is of the award of appropriate punishment  

to the advocate appellant.

22. Mr.  S.B.  Sanyal,  learned  senior  counsel,  

submitted  that  the  incident  was  quite  old;  the  

advocate appellant did not get any benefit out of the  

said statement made in the sale deed and, subsequently  

the above statement in the sale deed has been expunged  

on the agreement of the vendor and vendee.  In the  

light of these mitigating circumstances, the learned  

counsel submitted that suspension of practice for one

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year  was  harsh.  He  appealed  for  reduction  of  the  

suspension period.

23. By order dated November 30, 2011, we directed  

the advocate appellant to remain personally present on  

the  next  date  of  hearing.   In  view  of  that,  the  

advocate appellant is present before us.  In addition  

to the circumstances pointed out by Mr. S.B. Sanyal,  

learned  senior  counsel,  the  advocate  appellant  

informed us that he has been suffering from glaucoma  

in his both eyes and was not keeping good health.  

24. We  find  that  the  two  applications,  being  

Interlocutory Application No. 4 in Civil Appeal No.  

4484  of  2005  and  Interlocutor  Application  No.  8  in  

Civil Appeal No. 2293 of 2005, have been made by the  

advocate  appellant  and  the  complainant  jointly  for  

disposal  of  the  Appeals  in  terms  of  the  compromise  

between  them.    We  are  unable  to  accede  to  their  

request.   In  our  view  the  settlement  with  the  

complainant does not mitigate or wipe out professional  

misconduct and must not prevent adequate punishment to  

the advocate appellant. Both these applications are,  

accordingly, rejected.     

25. The punishment for professional misconduct has  

twin objectives – deterrence and correction.  Having

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regard to the over all facts and circumstances of the  

case which have been noted above, we are of the view  

that  if  the  advocate  appellant  is  suspended  from  

practice for a period of three months effective from  

today the above objectives would be met.  We order  

accordingly.

26. Both  Civil  Appeals  are  dismissed  with  the  

modification  in  punishment  as  indicated  above.   No  

costs.  

27. The Registry shall send copy of this Order to  

the Secretary, State Bar Council, Madhya Pradesh and  

the Secretary, Bar Council of India immediately.  

    .........................J.        (R.M. LODHA)

NEW DELHI       ...........................J. DECEMBER 08, 2011       (H.L. GOKHALE)