JAIPUR VIKAS PRADHIKARAN Vs ASHOK KUMAR CHOUDHARY .
Bench: MUKUNDAKAM SHARMA,ANIL R. DAVE, , ,
Case number: C.A. No.-005099-005099 / 2002
Diary number: 15139 / 2002
Advocates: MILIND KUMAR Vs
B. K. SATIJA
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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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