REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5099 of  2002

JAIPUR VIKAS PRADHIKARAN            ....Appellant

VERSUS

SRI ASHOK KUMAR CHOUDHARY & ORS.        ....Respondent(s)

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. The present appeal, under section 38 of the Advocates Act, 1961,  

(hereinafter  referred  to  as  “the  Act”)  is  filed  against  the  final  

judgment  dated  24.03.2002 of  the  Disciplinary  Committee  of  the  

Bar  Council  of  India  [hereinafter  referred  to  as  Disciplinary  

Committee]  in  BCI  Transfer  Case  No.  74  of  1995,  whereby  the  

Committee dismissed the complaint of the appellant herein holding  

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that no case of any misconduct is made out.

2. The  facts  leading  to  the  filing  of  the  present  case  are  that  the  

present complaint was filed under section 35 of the Act by Jaipur  

Development Authority against the present respondents before the  

State  Bar  Council  of  Rajasthan  in  the  year  1994  which  was  

entrusted to the Disciplinary Committee of the State Bar Council of  

Rajasthan.  Since  the  proceedings  could  not  be  completed  in  the  

stipulated period of one year, the complaint was transferred to the  

Bar Council of India in the year 1995, registered as Transfer Case  

No. 74 of 1995.

3. The allegations made in the complaint was that appellant engaged  

the Respondent No.1 herein on retainer basis in order to defend its  

cases pending in the different Courts at Jaipur, Rajasthan. In the  

year  1990,  Respondent  No.1  was  appointed  to  defend  Jaipur  

Development Authority in some Reference cases under section 18 of  

the  Rajasthan  Land  Acquisition  Act.  Also,  on  05.10.1990,  

Respondent  No.1  was  engaged  to  defend  Jaipur  Development  

Authority in the Land Acquisition Reference No. 14 of 1982, Abdul  

Samad & Ors Vs. Jaipur Development Authority in Civil Court at  

Jaipur City. Even his retainership fee was enhanced by additional  

amount of Rs. 600/- per month.

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4. The Land Acquisition Reference No. 14 of 1982 was fixed for filing of  

the Written Statement in the Court on 07.12.1991. The Respondent  

No. 1 neither appeared in the Court on 07.12.1991, nor filed Written  

Statement  on  behalf  of  the  appellant.   Consequently,  the  Court  

closed the opportunity for filing the Written Statement on behalf of  

the appellant vide order dated 07.12.1991. The Respondent No.1 did  

not inform the appellant about the said order dated 07.12.1991 of  

the  learned  Court.  The  Claimant  in  the  said  Land  Acquisition  

Reference No. 14 of 1982 examined the witnesses in the Court, but  

the respondent neither cross-examined those witnesses nor did he  

inform the appellant about this. Also, in the said Reference, the date  

was fixed as 10.11.1993 for producing of the entire evidence but no  

intimation  regarding  the  aforesaid  date  was  given  by  the  

Respondent to the appellant, as a result of which evidence of the  

Appellant  was  ordered  to  be  closed  by  the  learned  Court.  The  

Respondent also did not inform the appellant about the aforesaid  

order dated 10.11.1993.  

5. Ultimately,  the  Land  Acquisition  Reference  No.  14  of  1982  was  

decided on 02.12.1993 against the appellant and in that Judgment,  

an award of Rs. 1.25 crore was announced by the Court. Even the  

final order passed by the Court was not conveyed to the appellant.  

The  appellant  came  to  know about  the  passing  of  the  aforesaid  

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order  for  the  first  time  on  24.03.1994  when  Mr.  Manak  Chand  

Surana – Respondent No. 2 filed Execution Petition No. 20 of 1993  

in the Executing Court and another Execution Petition was filed by  

Mrs. Asha Gupta, wife of Respondent No. 3.  

6. The  appellant  sought  indulgence  of  the  State  Bar  Council  of  

Rajasthan for taking appropriate action against the respondents as  

envisaged under section 35 of the Act on the aforesaid grounds. It  

was  also  contended  that  Respondent  No.  2  work  in  the  same  

chamber in which the Respondent No.1 has been sitting and that  

Respondent No. 3 is the brother-in-law of Respondent No.1. Hence,  

in this manner, all the Respondents are closely related to each other  

or friends and in connivance of Respondent No.1, the Respondent  

No. 2 and wife of Respondent No. 3 purchased the rights in the said  

property in order to earn profit out of the property in dispute which  

amounted  to  professional  misconduct.  The  Respondent  No.1  

intentionally acted against the interest of the appellant in defending  

the said Reference.

7. The complaint was entrusted to the Disciplinary Committee of the  

State Bar Council  of Rajasthan, but since the proceedings in the  

complaint could not be concluded by the Disciplinary Committee of  

the State Bar Council of Rajasthan within the stipulated period of  

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one year, the same was transferred to the Bar Council of India in  

the year 1995.  

8. The Bar  Council  of  India  vide  final  Judgment  dated 24.03.2002,  

dismissed  the  complaint.  It  is  against  this  judgment  of  the  Bar  

Council  of  India  dated  24.03.2002,  that  the  Jaipur  Vikas  

Pradhikaran has preferred an appeal under section 38 of the Act,  

upon which we heard the learned counsel appearing for the parties.

9. We heard the learned counsel  appearing for the parties who had  

taken us through the  entire  records.   Counsel  appearing  for  the  

appellant  submitted  before  us  that  the  order  passed  by  the  

Disciplinary Committee of the Bar Council of India was illegal and,  

therefore, is liable to be set aside.  It was submitted by the counsel  

that the findings of the Disciplinary Committee that the allegation  

that  the  respondent  no.1  did  not  conduct  the  case  of  the  

complainant properly was not proved on file is incorrect and against  

the  records.   He  also  assailed  the  findings  of  the  Disciplinary  

Committee to the effect that the respondent no. 1 was not at all  

negligent in conducting the case of the complainant and submitted  

that the said findings are contrary to the records on which he had  

relied  upon.  Various  instances  of  alleged  misconducts,  

misdemeanors and misdeeds of the respondent no.1, respondent no.  

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2 and respondent no. 3 were brought out by analyzing and referring  

to the contents of the complaint and also the evidence led by the  

parties.

10.The counsel appearing for the appellant also analyzed the sequence  

of  events  and  placed  before  us  a  list  of  dates  to  support  the  

contention that  the  respondent  no.  1  on and after  accepting  the  

engagement from the appellant acted in violation of the professional  

ethics and also abused the trust reposed on him. He has in that  

context placed the following facts for our consideration.  

11.He submitted that the complaint which was filed by the appellant  

stated  that  the  respondent  no.  1  was  retained  by  the  appellant  

institution  in  the  year  1989  to  conduct  all  such  cases  pending  

before  the  Civil  Court  filed  against  the  institution.  That  the  

respondent no. 1 was also authorised in 1990 to appear and plead  

in all the reference cases filed against the appellant herein and also  

in all pending references and due to the aforesaid engagement, the  

appellant granted a special enhancement of a sum of Rs.600/- per  

month to the respondent no.1 in his monthly retainership.  It is also  

disclosed  from  the  records  that  the  reference  case  no.  14/1982  

which is the basis and the subject matter of the complaint filed, was  

a land acquisition matter under Section 18 of the Land Acquisition  

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Act  pending  in  the  Civil  Court,  Jaipur  City,  Jaipur  wherein  the  

respondent no. 1 was authorised to conduct the case on behalf of  

the appellant as a counsel.   The authorisation was on 5.10.1990  

and he started conducting the said case from the said date.  It is,  

however, also disclosed from the records placed before us that the  

aforesaid  reference  case  no.  14/1982,  the  Collector  passed  an  

award  in  favour  of  the  land  owners,  namely,  Sh.  Abdul  Samad,  

Abdul Latif and Abdul Hamid determining the land compensation of  

Rs.16,200/- only for the entire land.

12.One Mrs. Shanta Sharma, thereafter purchased the right to seek  

compensation  in  the  said  land on  20.9.1980 and 5.2.1982.   On  

30.1.1990, Smt. Shanta Sharma executed an assignment deed in  

favour  of  relatives  of  respondent  no.  2,  namely,  Vimla  Surana,  

Rajendra Surana,  Jitendra  Surana and Manak Surana and Smt.  

Asha Gupta, wife of respondent no.3, who also happens to be the  

sister  of  respondent  no.1.  It  is  shown from the records that  the  

respondent no.2 and the respondent no.3 have been appearing for  

the claimants claiming higher compensation before the Reference  

Court  after  the relatives of the respondent no. 2 and the wife  of  

respondent  no.3  got  themselves  substituted  in  place  of  original  

owners.  They were contesting parties in the Reference Court who  

were represented by respondent no.2 and the respondent no.3.

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13.He also pointed out that on 19.1.1990, respondent no. 1 appeared  

for the wife of the respondent no. 3 who was his sister, she having  

been substituted as a claimant in the proceeding.  Despite the said  

fact,  it  appears  that  on  5.10.1990,  the  appellant  engaged  

respondent no.1 as its counsel, which engagement was accepted by  

the respondent no. 1 without disclosing the fact that he had already  

appeared in the case on behalf of respondent no.3.  Be that as it  

may, date was fixed in the said proceeding on 7.12.1991 when the  

written statement was to be filed.  It appears that the respondent  

no.1 who was representing the appellant herein, did not appear in  

the  proceeding  on  that  date  nor  had  he  prepared  the  written  

statement.   Since  the  written  statement  was  not  filed,  and  the  

respondent no. 1 also did not appear on the date fixed, the defence  

of the appellant was struck off, but the said fact was not brought to  

the notice of the appellant by the respondent no.1.  Thereafter in the  

said reference proceedings, a date was fixed for leading evidence.  

On the said date i.e.  10.11.1993, respondent no. 1 informed the  

court that no evidence is to be produced on behalf of the appellant.  

In view of the aforesaid statement made by the respondent no.1, an  

order was passed closing the evidence and fixing the matter for final  

hearing.  

14.The reference was argued thereafter and it is the contention of the  

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appellant that the respondent no. 1 did not argue the said reference  

properly.  Be that as it  may, on 2.12.1993, an order came to be  

passed  enhancing  the  compensation  for  the  acquired  land  from  

Rs.16,200/- to Rs.1.25 crores.  The allegation of the appellant is  

that  even  the  said  order  was  not  communicated  and  that  the  

appellant came to know about the aforesaid position and also of the  

order increasing the value of compensation only from the execution  

case filed.  Further allegation was that when the defence was struck  

out, the respondent no. 1 did not appear nor did he take any steps  

for  getting  the  said  order  recalled.   He  also  did  not  even  

communicate  the  order  and  even  thereafter,  there  was  no  

communication when the final  order was passed despite  the fact  

that he was required to inform the development of the case at each  

step.   So  far  the  respondent  no.  2  and  3  are  concerned,  the  

allegation  was  that  the  said  respondent  no.  2  and  3  are  also  

Advocates  who  share  the  same  chamber  with  respondent  no.  1.  

They  also  filed  common  and  joint  application  for  allotment  of  

chamber  which  indicate  that  they  are  working  together  and,  

therefore,  they  are  also  parties  to  the  aforesaid  conspiracy  of  

obtaining practically an ex-parte order against the appellant so as to  

derive illegal benefit.  

15.Be  it  stated  herein  that  later  on  the  application  filed  by  the  

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appellant, the aforesaid judgment and order of the Reference Court  

has since been set aside.

16.In view of the aforesaid alleged lapses and willful  default on the  

part of the respondent no.1, the aforesaid complaint was filed by the  

appellant under Section 35 of the Advocates Act alleging misconduct  

against the respondent no.1, as also the respondent no. 2 and 3 on  

the ground that the respondent no.1 appeared for claimant prior to  

his engagement as counsel for the appellant.  It was also alleged  

that since an assignment deed was made out in favour of the sister  

of the respondent no.1 on 30.1.1990, the respondent no. 1 should  

not have accepted the brief and the very fact that he accepted the  

engagement  without  disclosing  the  material  facts,  proves  and  

establishes the allegation of misconduct.   

17.The various contentions of the counsel appearing for the appellant  

were,  however,  refuted  by  the  counsel  appearing  for  all  the  

respondents, namely, respondents no. 1, 2 and 3.  They have relied  

upon the replies filed by the said respondents to the complaint filed  

and also on the findings recorded by the Disciplinary Committee  

while exonerating all the respondents.  

18.In the light of the aforesaid submissions, let us examine the facts of  

the  present  case.   From  the  facts  disclosed  hereinbefore,  it  is  

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established that an award was passed by the Collector in respect of  

the land in question on 4.3.1982 determining the value of the land  

at Rs.16,200/- for the entire land.  At that stage the claimants were  

the three land owners. After the aforesaid award was passed, the  

three  land  owners,  namely,  Abdul  Samad  and  two  others  

transferred  the  right  to  receive  compensation  to  Smt.  Shanta  

Sharma  on  20.9.1980  and  5.2.1982.   Smt.  Shanta  Sharma  

thereafter  executed the assignment  deed in  favour  of  relatives  of  

respondent  no.  2  ,  namely,  Vimla  Surana,  Rajendra  Surana,  

Jitendera  Surana  and  Manak  Surana  in  whose  favour  also  the  

aforesaid assignment  deed was made out.   The records available  

also  disclose  that  the  aforesaid  relatives  of  respondent  no.2  and  

Smt.  Asha  Gupta,  wife  of  respondent  no.3  also  got  themselves  

substituted in the reference proceedings, which is Reference Case  

No. 14/1982.  These persons got themselves substituted only on the  

basis of such assignment without which they had no right to get  

themselves  substituted  in  place  of  original  owners.  After  

substitution,  Smt.  Asha Gupta,  the  wife  of  respondent  no.3  and  

sister of respondent no.1 and the aforesaid relatives of respondent  

no.2  were  parties  in  the  reference  proceedings  as  claimants.  

Respondent no. 1 appeared in the said reference case on 19.1.1990  

for his sister (wife of respondent no.3).

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19.Despite  the  aforesaid  fact,  the  respondent  no.1  accepted  the  

engagement given to him by the appellant as its counsel to contest  

the claim of the aforesaid contesting claimants, one of which was  

his  own  sister.  We  also  find  from  the  records  that  in  fact  the  

respondent no.1 was the retaining counsel of the appellant from the  

year 1989 and, therefore, he could not have entered appearance on  

behalf  of  the  wife  of  the  respondent  no.  3  on  19.1.1990.   The  

respondent  no.  1 therefore  not  only appeared for  the  wife  of  the  

respondent no. 3 in the same reference in which he also appeared  

for the appellant, who were contesting the claims of the claimant  

including his own sister.  These activities of the respondent no. 1  

were unbecoming of a professional lawyer and also clear cases of  

misconduct.

20.The defence taken was that there was some confusion with regard  

to the appearance slip on 19.1.1990 for the appearance slip which  

was filed in the aforesaid reference case on 19.1.1990 was meant for  

a different case.  But the said appearance slip appears to have been  

manipulated  later  on by  making  over-writing  on the  same.   The  

misdemeanor of  the  respondent  no.  1 did  not  end only  with the  

aforesaid  position.   On  7.12.1991,  the  written  statement  was  

required to be filed, but no such written statement was prepared  

nor was it filed and even respondent no. 1 did not appear in the said  

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proceedings on that date, for which the defence of the appellant was  

struck off. Even the said fact was not brought to the notice of the  

appellant by the respondent no.1.  Even thereafter when the matter  

was listed for recording of evidence on 10.11.1993, the respondent  

no. 1 informed the court that no evidence was being produced on  

behalf of the appellant.  That statement appears to have been made  

without any positive instructions of the appellant in that regard and  

without  even  informing  the  appellant  about  the  said  fact.  

Consequent  upon  the  aforesaid  representation  made  by  the  

respondent  no.  1,  the  evidence  of  the  appellant  was  closed  on  

10.11.1993 and the case was fixed for arguments.  On 2.12.1993  

the  order  was  passed  by  the  Reference  Court  enhancing  the  

compensation from Rs.16,200/- to Rs.1.25 crores.  The said order  

was  also  not  communicated  by  the  respondent  no.  1  to  the  

appellant.  

21.Counsel  appearing for the respondent no. 1 however,  during his  

course of arguments, submitted that he was not required to apply  

for any certified copy and send the same to the appellant in terms of  

his engagement. But the said fact is belied from the fact  that in  

terms of his engagement and he being a retaining counsel, it is his  

obligation to provide all  information regarding the development of  

the case and also to provide copies of the orders passed along with  

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his opinion.  It was necessary on his part and he was duty bound to  

take steps for recalling the order of striking off the defence. At least  

he should have sent such an advice. He had conducted the case at  

one stage against the appellant despite being a paid retainer of the  

appellant  and  also  despite  the  fact  that  there  was  a  conflict  of  

interest.  In fact, the respondent no. 1 was under an obligation to  

disclose his interest in the case and should have refused to accept  

the brief when offered to him. Nothing of the nature was done and  

rather he paved the way for getting enhancement of compensation  

for his sister. It is therefore established that the respondent no. 1  

stage managed the entire proceeding and set the course so that the  

higher claim of the newly substituted claimants are accepted.

22.In the case of V.C. Rangadurai Vs. D. Gopalan and others reported  

in (1979) 1 SCC 308, a three Judges Bench of this Court has stated  

and  outlined  the  duties  and  responsibilities  of  a  counsel.   In  

paragraph  30  of  the  said  judgment  this  Court  has  held  that  

counsel's paramount duty is to the client and accordingly where he  

forms an opinion that a conflict  of  interest  exists,  his duty is to  

advise the client that he should engage some other lawyer.  It was  

further  held  that  it  is  unprofessional  to  represent  conflicting  

interests, except by express consent given by all concerned after a  

full disclosure of the facts.  The Court further went on to hold that  

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the relation between a lawyer and his client is highly fiduciary in its  

nature and of a very delicate, exacting, and confidential character  

requiring a high degree of fidelity and good faith and that it is purely  

a  personal  relationship,  involving  the  highest  personal  trust  and  

confidence which cannot be delegated without consent.  This Court  

also  held  that  when  a  lawyer  is  entrusted  with  a  brief,  he  is  

expected to follow the norms of professional ethics and try to protect  

the  interests  of  his  clients,  in  relation  to  whom  he  occupies  a  

position of trust.   

23.In the present case, it appears to us that the respondent no. 1 had  

not only not disclosed the conflicting interests that he had in the  

matter but had gone a step further by betraying the trust reposed  

on him by the complainant.  The facts which are analyzed clearly  

prove  the  guilt  of  the  respondent  no.  1.  He  acted  in  a  manner  

unbecoming of a lawyer,  who was bound by ethical  conduct and  

failed to protect the interest of his client.

24.Counsel  appearing  for  the  respondent  no.1,  however,  submitted  

that a case of this nature must be proved beyond all  reasonable  

doubts  and  not  on  preponderance  of  probabilities.   There  is  no  

dispute of the aforesaid position as it is also held in the aforesaid  

case by this Court that findings in disciplinary proceedings must be  

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sustained by high degree of proof than that is required in civil suits,  

yet falling short of the proof required to sustain a conviction in a  

criminal prosecution.

25.Counsel appearing for the respondent no.1 also drew our attention  

to a two judges decision of this Court in Pawan Kumar Sharma Vs.  

Gurdial Singh reported in (1998) 7 SCC 24 wherein this Court has  

held that  charge of  professional  misconduct   is  in  the  nature  of  

quasi  criminal  charge  and due to  the  same,  it  is  required  to  be  

established  not  by  preponderance  of  probabilities,  but  beyond  a  

reasonable doubt.  Even keeping in view the aforesaid standard of  

proof in mind, we find that by the sequence of events as mentioned  

in the case and proved through evidence led that the respondent no.  

1 did not adhere to the professional ethics by which he was bound  

as stated hereinbefore.   

26.The factual narration which has been given and the conduct of the  

respondent  no.1  in  conducting  the  case  clearly  proves  and  

establishes  his  misdemeanor  and  misconduct  and,  therefore,  we  

find the respondent no.1 guilty of professional misconduct.   

27.We, therefore, order and direct that respondent no.1 be suspended  

as an Advocate from practice for a period of six months from today.   

28.So far  as the defence raised by the respondent nos.  2 and 3 is  

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concerned, we have considered the same in the light of the records  

also.   So  far  the  allegations  against  the  respondent  no.  2  are  

concerned,  he has appeared in the aforesaid reference case as a  

lawyer and he was not a claimant himself. It is true that he is sitting  

in the same chamber as that of respondent no.1, but from this mere  

fact, it cannot be held that he is also guilty of the same or similar  

misconduct as that of respondent no.1.  Although his relatives have  

purchased the right  to claim compensation and have substituted  

themselves as claimants, but he is only representing them in the  

capacity of an Advocate and except for that no other fact has been  

proved by the appellant which would lead to and prove his guilt or  

could be said to be a misconduct.  Similarly, so far as respondent  

no.  3  is  concerned,  he  was  representing  his  wife  only  in  the  

reference case and was the chamber-mate of the respondent no.1.  

Although his wife was a claimant herself, there could be an unholy  

alliance between his wife and the respondent no.1, but there is not  

enough  evidence  on  record  to  prove  and  establish  that  the  

respondent no. 3 has committed any misconduct.   

29.Therefore,  we  uphold  the  order  of  the  Disciplinary  Committee  

holding  that  the  respondent  no.  2  and  3  are  not  guilty  of  the  

charges and allegations of misconduct made against them. So far as  

respondent no. 1 is concerned, we modify the order passed by the  

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Disciplinary Committee of the Bar Council of India and direct that  

he shall be suspended as an Advocate from practice for a period of  

six months from today.

30.The appeal is disposed of in terms of the aforesaid order. There will  

be no order as to costs.

………………..........................J. (DR. MUKUNDAKAM SHARMA)

…………… …..........................J.

         (ANIL R. DAVE)

NEW DELHI SEPTEMBER 15, 2011.

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