TMI Blog1996 (9) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissing the review petition filed by the appellant against the said order dated March 28, 1982. 2. This appeal was heard and disposed of by us on March 21, 1996 by passing the following order: We have heard the learned Counsel for the appellant as well as the respondent-original complainant at some length. For reasons which we will state hereafter, we allow the appeal and set aside the order for the Bar Council of India holding the appellant guilty of misconduct, in view of our decision to set aside the view taken by the Bar Council of India against the appellant the Special Leave Petition which arises out of the rejection of the review application does not survive. Both the matters will, therefore, stand disposed of accordingly. We, however, make no order as to costs. We, therefore, set out the following reasons in support of our said order dated March 21, 1998. 3. Before we proceed to give reasons in support of our order referred to above allowing the appeal, it would be appropriate to briefly narrate the facts: Smt. Rajinder Kaur, the original complainant/respondent No. 1 herein had instituted a money suit in the Bombay City Civil Court against one Smt. Virgin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant had committed extortion in respect of the amounts paid by her and referred to above. According to the appellant it is at this stage that she filed her Power and appeared for the respondent for the first time on January 30, 1987 without charging any fee from the respondent No. 1. According to the appellant the respondent No. 1 herein herself had filed an affidavit Annexure H-l in reply to the Notice of Motion for setting aside the ex-parte decree controverting and refuting all the allegations made against the appellant. According to the appellant since Mrs. D'Souza made allegations against her, the appellant thought it fit to withdraw herself from the proceedings after April 30, 1987. She, therefore, filed an affidavit Annexure-J denying the allegations against her and orally requested the Court to permit her to withdraw her appearance from the Court in the matter. According to the appellant one Mr. Ladiwala, Advocate tendered his appearance on behalf of the respondent No. 1 without charging any fee. Mr. Ladiwala appeared and also filed rejoinder of the respondent No. 1 duly signed by the respondent herself. Ultimately the City Civil Court Court by its order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... later on got appointed Shri Ladiwala and Shri Munshi, Advocates on behalf of complainant without her knowledge? (2) Whether Shri Ladiwala and Shri Munshi, Advocates on the instructions and in collusion with the respondent did not properly contest the case of the complainant in the High Court of Judicature at Bombay? (3) Whether the respondent colluded with the defendant in the said case in either contesting the case or by getting appointed Shri Ladiwala and Shri Munshi? (4) Whether the respondent has committed any act of professional misconduct? If so, its effect? By the consent of parties the complaint made by the complainant respondent No. 1 and the written statement filed by the appellant were respectively treated as their evidence-in- chief and each party was allowed to cross examine its opponent. Thus, there is solitary evidence of complainant respondent No. 1 and the appellant in addition to certain documents on the basis of which the Committee proceeded to record its findings on the issues referred to above. After analysing the evidence and the documents on record the Committee took the view that the appellant Advocate was guilty of professional misconduct and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Court but it was not presented by the appellant till 30.4.1997 and on the contrary got appointed Shri Ladiwala and Shri Munshi, Advocates on her behalf without the knowledge of the respondent No. 1. It has been alleged in the complaint that the appellant collected a sum of ₹ 500 on 24.4.1988, ₹ 1500 on 7.10.1988 and a further sum of ₹ 1500 on 10.11.1986 (in all ₹ 3500) towards the part payment of the decretal amount from the defendant Mrs. D'Souza, but the appellant did not pay the same to her inspite of her insistence to pay the said amount to her. The complainant respondent No. 1 has further alleged that the appellant in collusion and conspiracy with the two advocates, namely, Shri Ladiwala and Shri Munshi played a dirty game to get the ex-parte decree set aside by malpractices by remaining behind the curtain with an intent to cause loss and harm to her and to the advantage of the defendant Mrs. D'Souza by illegally and wrongfully consenting to set aside the ex-parte decree without her knowledge and consent. In this connection we may first of all refer to the affidavit Annexure H- 1 dated 18.2.1987 filed by the complainant-respondent No. 1 Sm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d appears to be an after thought. 8. As regards the allegation of non-payment of ₹ 3500 which was received by the appellant from defendant Mrs. D'Souza towards the part payment of the decretal amount we may refer to another affidavit of the complainant respondent No. 1 dated 8.11.1987 filed in the City Civil Court, Bombay. In paragraph 5 of the said affidavit the respondent No. 1 has categorically stated that the said amount of ₹ 3500 was received by her from the appellant who at the time was acting as a mediator to settle the claim, in addition to this the aforesaid payment of ₹ 3500 is further established from the receipt Annexure 'L' dated 29.8.1987 executed by the respondent No. 1 acknowledging the payment of ₹ 3000 to her by the appellant which she received from Mrs. Virginia D'Souza towards the settlement of the case. Thus the allegation regarding the non-payment of the said amount is totally false. 9. This brings us to the allegation of the plaintiff-respondent No. 1 that the advocates Shri Ladiwala and Shri Munshi were appointed by the appellant to represent the respondent No. 1 without her knowledge and consent who in collusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion made against the appellant are only after-thought for which there was no basis at all. There is further material on record to show that the advocates Shri Ladiwala and Shri Munshi were appearing on her behalf in the City Civil Court on various dates but the respondent No. 1 at no stage objected to their appearance on her behalf either before or after the setting aside ex-parte decree. On a close scrutiny of the evidence and the material on record it can hardly be said that the respondent No. 1 has been able to prove the allegations beyond all reasonable doubt. The evidence of the complainant herself is very shaky and unacceptable. It is unfortunate that all these aspects of the matter have not been properly appreciated by the Disciplinary Committee of the Bar Council of India which has resulted into miscarriage of justice. It was for these reasons that after hearing the learned Counsel for parties on March 21,1996 we were convinced that the impugned order could not be sustained for the reasons that we have given herein before. The appeal and the Special Leave Petition already stand disposed of by our order dated March 21, 1996 and we support the same with the aforementioned rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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