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TMI Blog2000 (12) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... harma, 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 Act. 2. It is not disputed that Upasana Construction (P.) 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 2,000 students were studying. Shri D.P. Chadha was engaged by the complainant for defending him in the suit. 3. 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 be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 on 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. 6. 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 miscellaneous civil appeal raising a plea that the trial court was not justified in directing personal appearance of the parties, and should have recorded the compromise on verification by the advocates. The complainant, Shri Triyugi Narain Mishra, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 miscellaneous appeal was not maintainable under any provision of law. 9. 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 Judge, left with no other option, passed a decree in terms of compromise in the presence of Shri Rajesh Jain and Anil Sharma, Advocates. The decree directed the suit premises to be vacated by 30-11-1993 (the date stated in the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 noticed 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 and one blank paper signed by the complainant. The Bar Council has found that the blank 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 appellant's defence emphatically raised in his written statement. On 8-4-1994, the presence of the appellant is recorded by the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced in the Court who was certainly not available in Jaipur - being away in the State of U.P. contesting an election. The counsels 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 miscellaneous appeals twice and ultimately, succeeded in securing an appellate order, which 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 Code of Civil Procedure, 1908 ('the Code') or any other provision of law. In an earlier round, the Appellate Court had expressed that view. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en on record the compromise and passed the 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 a 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 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 : 8-4-1994 (Cutting). Plaintiff with counsel present. Defendant's counsel Shri D.P. Chadha present. Arguments heard. Judicial precedents Ms. Tashi Dorgi v. Birendra Kumar Roy AIR 1980 Cal. 51, Vishnu Kumar v. State Bank of Bikaner & Jaipur AIR 1976 Raj. 195, Byram Pestonji Gariwala's case (supra) cited by Shri D.P. Chadha perused. In the matter under consideration, compro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 and there..." (p. 1249) 19. Again, in Bhagwati Prasad v. Delhi State Mineral Development Corpn. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners 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 which 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 crystallised 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.". . . (p. 302) 22. 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 du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 counsels 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 a chariot. As a responsible officers of the Court, as they are called and rightly, the counsels have an overall 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 a profession but overzealousness and misguided enthusiasm have no place in the personality of a professional. 25. An advocate, while discharging duty to his client, has a right to do everything 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 conces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciation 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 [spelt] 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 deemed 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. 33. 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 deemes 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne. 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 the 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 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. 36. 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. 37. The Bar Council of India, by its order under appeal, direct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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