'REPORTABLE' IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 15540 OF 2017 KAUSHAL KISHORE AWASTHI                       ... Appellant

VERSUS BALWANT SINGH THAKUR & ANR.                   ... Respondents

J U D G M E N T Respondent No.1 herein (the complainant) had lodged a

complaint with the Bar Council of Chhattisgarh (hereinafter referred to as the 'State Bar Council') on 19.12.2003 against the appellant, who is an Advocate by profession, alleging that the appellant had acted in a manner which amounts to professional  misconduct.   On  that  basis,  the  complainant pleaded  that  disciplinary  action  be  taken  against  the appellant.   Taking  cognizance  of  the  said  complaint,  a Disciplinary  Committee  was  constituted  as  the  reply  dated 03.02.2006  filed  by  the  appellant  was  found  not  to  be satisfactory.  After recording the evidence and hearing the parties, the Disciplinary Committee passed final orders dated 09.12.2006  holding  the  appellant  guilty  of  professional misconduct  and,  on  that  basis,  imposed  punishment  by suspending his license of practice for a period of two years. The  appellant  preferred  statutory  appeal  against  the  said decision of the State Bar Council before the Bar Council of

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India  (BCI).   Vide  the  impugned  judgment,  the  BCI  has affirmed  the  finding  of  the  State  Bar  Council  as  far  as holding  the  appellant  guilty  of  misconduct  is  concerned. However, it has reduced the term of suspension of license from 2 years to one year along with cost of Rs.25,000/- to be paid to the complainant.  Against this order of the BCI, the present appeal is preferred by the appellant.   

A neat plea which is taken by the learned counsel for the appellant is that even if the allegations contained in the complaint are taken to be correct on its face value, these do not amount to committing any misconduct as per the provisions of the Advocates Act and Rules framed thereunder. We are, therefore, confined to this aspect in the present appeal.

From the complaint which was lodged by the complainant before the State Bar Counsel it can be discerned that his allegation was that there was a family dispute, i.e., between the complainant and his brothers, in respect of a property which was in the name of their father and was an ancestral property.  It was stated that after the death of their father on 11.10.1989, the said property was divided by the three brothers equally.  However, it transpired that before his death, one of the brothers of the complainant influenced his father and got registered the said property in the name of the complainant's nephew, i.e., son of that brother, without the  consent  of  other  brothers  vide  sale  deed  dated

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25.07.1989.  The complainant had approached the appellant, who is an Advocate, for filing the Suit for declaration to declare  that  the  sale  deed  was  null  and  void  as  it  was prepared fraudulently.  The appellant acted as his Advocate and filed the Suit.  In the said Suit, the parties settled the matter as they agreed for declaring the sale deed as ineffective  and  requested  the  Court  for  division  of  the property.   This  resulted  in  passing  of  decree  dated 24.10.1994 by the Court in which the complainant was declared owner  of  0.03  acres  along  with  kutcha  house  out  of  the disputed property.  Till this stage, there is no quarrel and there is no allegation against the appellant as far as his conducting  the  said  Suit  is  concerned.   However,  the complainant further alleged that owing to family crises, the complainant suffered some financial crunch in the month of April, 2003, and he decided to sell his share of land to one Mr. Narsinghmal, son of Surajmal, for a sum of Rs.30,000/- and for the purpose of registration of sale deed, he produced the  earlier  sale  deed  before  the  office  of  the  Deputy Registrar, Dantewada.  At that stage, the appellant produced objection letter against the proposed sale deed and objected for registration of the said sale deed on the ground that the complainant did not have full ownership of the proposed land and the market value was also shown less in the said sale deed.  It was stated by the complainant that the appellant was neither an interested party in the said sale deed or in

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the proposed sale of the land nor was he authorised by any party to raise objections.  This act of the appellant in appearing  before  the  office  of  the  Deputy  Registrar  and objecting to the registration of sale deed was labelled as professional misconduct by alleging that the appellant had paid a sum of Rs.20,000/- to the complainant in the year 1996 and another sum of Rs.20,000/- to the son of the complainant in the year 1999 and for repayment of the said amount, the complainant had offered half share of the subject land as security.   His  justification  for  raising  objection, therefore, was that since the land was being sold without clearing his debt, it could not be done.

Without prejudice to his defence, the learned counsel for  the  appellant  submitted  that  even  if  the  aforesaid contents in the complaint are accepted as correct, the act of the appellant was not as an Advocate and, therefore, could not amount to committing misconduct.  In order to appreciate this contention one may refer to Rule 22 under Chapter II of the Standards of Professional Conduct and Etiquette framed by the BCI in exercise of its power under Section 49(1)(c) of the Advocates Act, 1961.  This Rule reads as under:  

“22. An advocate shall not, directly or indirectly, bid for or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any other person, any property sold in the execution of a decree or order in any suit, appeal or other proceeding in which he was in any way professionally engaged.  This prohibition, however, does not prevent an advocate from bidding for or purchasing for his client  any  property  which  his  client  may  himself legally bid for or purchase, provided the Advocate

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is expressly authorised in writing in this behalf.” Section 35 of the Advocates Act, 1961, as per which

punishment can be awarded to an Advocate for misconduct makes the following reading: -

35. Punishment of advocates for misconduct.— (1) Where on receipt of a complaint or otherwise a State  Bar  Council  has  reason  to  believe  that  any advocate on its roll has been guilty of professional or  other  misconduct,  it  shall  refer  the  case  for disposal to its disciplinary committee. (1A)  The State  Bar Council  may, either  of its  own motion  or on  application made  to it  by any  person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council. (2) The disciplinary committee of a State Bar Council 2[***] shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State. (3) The disciplinary committee of a State Bar Council after  giving  the  advocate  concerned  and  the Advocate-General an opportunity of being heard, may make any of the following orders, namely:— (a) dismiss the complaint or, where the proceedings were  initiated  at  the  instance  of  the  State  Bar Council, direct that the proceedings be filed; (b) reprimand the advocate; (c) suspend the advocate from practice for such period as it may deem fit; (d) remove the name of the advocate from the State roll of advocates. (4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India. (5) Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-General may appear before  the  disciplinary  committee  of  the  State  Bar Council  either  in  person  or  through  any  advocate appearing on his behalf.

It is very clear from the provisions of Section 35 that punishment  can  be  awarded  to  an  Advocate  if  he  is  found

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guilty of professional or other misconduct.  Rule 22 is the relevant  Rule  in  the  instant  case  which  proscribes  an Advocate  from directly  or indirectly  making a  bid for  or purchase either in his own name or in other's name for his own  benefit  or  for  the  benefit  of  any  other  person  any property sold in the execution of a decree or order in any suit, appeal or other proceedings in which he was in any way professionally engaged.   

Admittedly, in the instant case, the complainant was selling  the property  to the  intending buyer  which was  an arrangement  between  them  unconnected  with  any  legal proceedings.   The  said  property  was  not  being  sold  in execution of any decree, in which proceedings the appellant was engaged, as noted above.  Insofar as the filing of the Suit  by  the  appellant  on  behalf  of  the  complainant  is concerned, that had resulted into passing of decree and the proceedings had concluded.  Even as per the complainant's own admission,  it  is  much  thereafter  that  the  complainant intended  to  sell  the  property  in  question  when  he  found himself  in  need  of  money.   It  is  this  sale  which  the appellant tried to interdict.  He was not doing so in the capacity of an Advocate.  As per him, the complainant was not authorised to sell the property without repaying his debt. Whether the appellant was right in this submission or not, is not relevant.  What is relevant is that this act has nothing to  do  with  the  professional  conduct  of  the  appellant.

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Therefore, the very initiation of disciplinary proceedings against the appellant by the State Bar Council was improper and without jurisdiction.   

We, accordingly, allow this appeal and set aside the impugned orders passed by the Bar Council of India.

........................, J. [ A.K. SIKRI ]

........................, J. [ ASHOK BHUSHAN ]

New Delhi; December 11, 2017.

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