Topic: Tulsidas Amanmal Karani - laid down two test to determine Professional Misconduct
Tulsidas Amanmal Karani
Equivalent citations: (1941) 43 BOMLR 250 - Bench: Broomfield, Wassoodew – Date of Judgment: 8 November, 1940
following two tests have been laid down:-
a) The conduct of the advocate is such that he must be regarded as unworthy to remain a member of the honourable profession
b) The conduct of the advocate is such that he must be regarded as unfit to be entrusted with the responsible duties that an advocate is called upon to perform.
1. This is an application to the High Court in its disciplinary jurisdiction made by the Advocate General of Bombay in the matter of Tulsidas Amanmal Karani, an attorney of this Court.
2. The material facts are as follows: In January, 1931, a suit was filed in the Court of Small Causes at Bombay by certain plaintiffs, whose names are not material, against one Choithram Bharmal for the recovery of Rs. 120 for rent. The suit came on for hearing on February 24, 1931, before Mr. S.E. Kurwa, a Judge of the said Court of Small Causes, and an ex parte decree was passed in favour of the plaintiffs. On August 11, 1931, the plaintiffs issued a notice against one Bharmal Tilokchand, the father of the defendant in the suit, to show cause why his name should not be brought on record as the real defendant and why the decree should not be amended under Section 151 of the Civil Procedure Code, and why execution should not be issued against him. The allegation was that Bharmal had occupied the premises in question in the name of his son Choithram. In these proceedings several witnesses were examined on behalf of Bharmal of whom one was Karani. The Judge was unfavourably impressed with Karani's demeanour as a witness. He disbelieved his evidence and criticised it with some; severity. The notice was made absolute and execution was ordered to be issued against Bharmal. He filed an appeal which was dismissed, and he also went in revision to the High Court but that application was dismissed on December 9, 1932.
3. On March 26, 1936, Karani served a notice under Section 80 of the Civil Procedure Code on Mr. Kurwa stating his intention to file a suit in the High Court against him for a declaration that the remarks passed by him as Judge of the Small Cause Court against him (Karani) in the judgment in the small cause suit were false, unjustified, malicious and irrelevant, that in passing those remarks Mr. Kurwa, did not act honestly, judicially or in good faith, and for the reliefs that the said remarks should be expunged and that Mr. Kurwa should be made to pay the costs. On August 31, 1937, Karani served a further notice under Section 80 alleging that Mr. Kurwa, had no jurisdiction to pass the ex parte decree in the small cause suit and that he had no jurisdiction to entertain the application under Section 151, also that he had no jurisdiction to make the false, unjustified, malicious and irrelevant remarks in his judgment.
4. On November 11, 1937, Karani filed a suit in the High Court on the grounds intimated in the two notices. Several preliminary issues were raised and one of them was tried first, viz., whether in the absence of the consent of the Governor of Bombay under Section 270(1) of the Government of India Act, 1935, the suit was maintainable. On January 25, 1939, Mr. Justice Blackwell held that the suit was not maintainable as the consent of the Governor of Bombay was not obtained. The suit was accordingly dismissed with costs. Karani appealed, but his appeal was dismissed on October 5, 1939. He then applied for leave to appeal to the Federal Court and this application was refused.
5. On December 7, 1939, the Registrar of the Small Causes Court presented a petition to this High Court in its disciplinary jurisdiction. In the petition certain paragraphs from the notice of March 26, 1936, were set out.
I may state that you were seriously prejudiced and biassed against me by the unwarranted attack made on me on September 11, 1931." (Karani was here apparently referring to certain remarks made about him by counsel appearing for the plaintiffs in the Small Cause Court suit). "The cumulative effect of your false remarks is that I had given false evidence. The aim of the said false remarks is to ruin my career as a legal practitioner. The language and style of the judgment is quite different from that of your own. Evidently you have played in the hands of some designing persons. You have not hesitated even to record my answers incorrectly. [He then referred to an instance of alleged misrecording of his evidence.] In what other ways you abused your powers as a Judge will be proved at the proper time and place. With a view to vindicate my honour and clear up the cloud cast by you on my character as a witness and also as a legal practitioner I have decided to file a suit against you in the High Court of Bombay for a declaration that the remarks passed by you against me are false, unjustified, malicious and irrelevant, that in the passing of the said remarks you did not act honestly, judicially or in good faith, that the said remarks be expunged from the judgment, that you be made to pay the costs of and incidental to the suit, and for such other reliefs as the Court may deem fit to grant.
The Registrar's petition averred that the said notice did not set out the true facts and was a most unbecoming, scandalous and libellous attack on a judicial officer, and prayed, for an inquiry into the conduct of the said Karani and for proper disciplinary action against him.
6. In accordance with the rules of the High Court in these matters, the Chief Justice ordered an inquiry by the Chamber Judge, On March 19, 1940, a notice was issued to Karani to show cause why action under the disciplinary jurisdiction should not be taken against him. Karani put in an affidavit by way of defence but he did not appear in person. On June 25, 1940, which was the first date of hearing before the Chamber Judge, Mr. Justice B.J. Wadia, he was represented by a solicitor who, according to the Judge's note of the proceedings, applied for a week's adjournment in order to communicate with his client about the charges and to induce him to apologise. The adjournment was granted and on July 2, 1940, the second date of the hearing, Karani was again absent and his solicitor withdrew from the inquiry. The following formal charges were drawn up by the Chamber Judge:
1. That you Tulsidas Amanmal Karani, a solicitor of this Honourable Court, in your notice, dated March 26, 1936, addressed to Mr. S.E. Kurwa, a Judge of the Small Causes Court, Bombay, did accuse the said learned Judge of acting with prejudice, bias and malice in the course of his judicial duties.
2. That you did also in the said notice accuse the said learned Judge of playing: into the hands of some designing persons and of delivering a judgment different in language and style from his own.
3. That you did in the said notice accuse the said learned Judge of having abused his powers as a Judge and of not acting honestly, judicially or in good faith.
7. Mr. Justice B.J. Wadia held that all the charges had been clearly proved and reported accordingly. In accordance with the rules the Advocate General was then instructed by the Chief Justice and Judges to present the present petition.
8. The Advocate General in his petition submits that Karani has been guilty of conduct which makes him unfit to continue on the roll of attorneys of this High Court, and prays that his name be removed from the roll of attorneys or that he be suspended from practice.
9. The opponent was represented before us by counsel who has relied for the most part on the affidavit in reply to the notice issued before the inquiry by the Chamber Judge. Before dealing with his arguments a few words are necessary as to the nature of our jurisdiction. Under Clause 10 of the Letters Patent the High Court is empowered to remove or suspend from practice advocates, vakils or attorneys "on reasonable cause". The expression "reasonable, cause" was considered by the Privy Council in S.B. Sarbadhicary, In re (1906) L.R. 34 I.A. 41, s.c. 9 Bom. L.R. 9. and it was there stated (p. 45):-- Their Lordships will not attempt to give a definition of 'reasonable, cause', or to lay down any rule for the interpretation of the letters patent in this respect. Every case must depend on its own circumstances. It is obvious that the intention of the Crown was to give a wide discretion to the High Court in India in regard to the exercise of this disciplinary authority.
In Advocate General of Bombay v. Three Advocates (O.S.): District Government Pleader, Kolaba v. Two Advocates (A.S.) (1934) I.L.R. 59 Bom. 57, s.c. 36 Bom. L.R. 1136, F.B., it was held that "reasonable cause" in this context means the same as professional or other misconduct under Section 10 of the Indian Bar Councils Act. There must be something which can fairly be described as misconduct; otherwise there can be no reasonable cause for taking disciplinary action. But "misconduct" itself is a sufficiently wide expression; it is not necessary, for instance, that it should involve moral turpitude. The learned Chief Justice who delivered the judgment of the full bench pointed out that the Court has a right to expect a high standard of loyalty to the Court and co-operation from those who practise the profession of the law. (The full bench was concerned in that case with advocates and pleaders but the same thing applies to attorneys). Any conduct which in any way renders a main unfit for the exercise of his profession or is "likely to hamper or embarrass the administration of justice by this Court or any of the Courts subordinate thereto" may be considered to be misconduct calling for disciplinary action. "What we have to consider in all these cases is the conduct of the Advocate (Attorney) as it affects his position as an advocate (Attorney) and his relations to the Court."
10. The points urged by counsel before us on behalf of the opponent were (1) that the letter or notice complained of was written in the capacity of a suitor and not as an attorney and the case is therefore covered by the authority of In re Wallace; (1866) L.R. 1 P.C. 283. (2) that the letter was a step in judicial proceedings contemplated against Mr. Kurwa, being sent by way of notice under Section 80 of the Civil Procedure Code, and that the opponent as a party was absolutely privileged; (3) that the opponent is prepared to substantiate his allegations against Mr. Kurwa, the truth of which has not been inquired into.
11. This last plea of justification may be very briefly disposed of. Assuming that it was open to the opponent to produce evidence in support of his allegations against Mr. Kurwa in these proceedings, he did not attempt to do so at the only time when, if at all, it would have been permissible, viz., at the formal inquiry before the Chamber Judge. He allowed his case then to go by default and the learned Chamber Judge in finding the charges against him proved has also held that there was no justification whatever for the allegations made by him. The rules relating to these disciplinary proceedings expressly provide that evidence cannot be given at the final hearing of the matter before a bench.
12. The other two points are inter-related and in connection with them it is necessary to refer in some detail to In re Wallace. The facts of that case were these. Wallace was an advocate and also an attorney practising in the Supreme Court of Nova Scotia. He was also a party in several cases in that Court. Supposing that he had reason to complain of the conduct of the Judged in dealing with those cases, he wrote a letter to the Chief Justice reflecting on the Judges and on the administration of justice generally in the Court. The Judges pronounced the letter to be a contempt of Court and issued a rule calling upon Wallace to show cause why he should not be suspended from practice as an attorney and barrister until he should make a suitable apology in writing, to be read in open Court, for his contempt. (It appears that he had offered a full verbal apology to the Chief Justice before the rule was issued but this was not considered sufficient). The rule was made absolute and Wallace appealed to the Privy Council.
13. The Judges of the Supreme Court had treated the matter as a case of contempt of Court. The Chief Justice in his judgment relied on authorities in contempt cases, and as regards the punishment to be imposed merely said "our right to substitute a suspension from practice for imprisonment is too clear to be disputed." The Judges may or may not have taken the view that Wallace's conduct rendered him unfit to practise, but if they did, they did not say so.
14. Their Lordships of the Privy Council disapproved of the order. Lord West-bury who delivered the judgment said that the letter written by Wallace was of a most reprehensible kind, a contempt of Court "which it was hardly possible for the Court to omit taking cognizance of." (It may be mentioned incidentally that Wallace accused the Judges of acting upon inadmissible evidence and private information. He did not allege, as Karani has alleged in the present case in so many words, prejudice, bias, malice and dishonesty).
15. Lord Westbury then went on to state the reasons why suspension from practice was an inappropriate punishment for the offence committed by Wallace, and, as the judgment is really the main foundation of the opponent's defence in the present case, I cite the material part of it in full (p. 294):-- It was an offence, however, committed by an individual in his capacity of a suitor in respect of his supposed rights as a suitor, and of an imaginary injury done to him as a suitor; and it had no connection whatever with his professional character, or anything done by him professionally, either as an Advocate or an Attorney. It was a contempt of Court committed by an individual in his personal character only.
16. To offences of that kind there has been attached by law and by long practice a definite kind of punishment, viz. fine and imprisonment. It must not, however, be supposed that a Court of Justice has not the power to remove the Officers of the Court if unfit to be entrusted with a professional status and character. If an Advocate, for example, were found guilty of crime, there is no doubt that the Court would suspend him. If an Attorney be found guilty of moral delinquency in his private character, there is no doubt that he may be struck off the Roll.
17. But in this particular case, there is no dalictum brought forward or assigned, except that which results from the fact of addressing an improper and contemptuous letter to the Chief Justice of the Court, in respect of something supposed to have been done unjustly to the writer in his private capacity as a suitor. We think, therefore, there was no necessity for the Judges to go further than to award to that offence the customary punishment for contempt of Court. We do not find anything which renders it expedient for the public interest, or right for the Court, to interfere with the status of the individual as a Practitioner in that Court, In that respect, therefore, we think that the Judges departed from the course which ought to have been pursued, by adopting a different description of punishment from the ordinary punishment for offences of this nature.
18. When an offence was committed which might have been adequately corrected by that punishment, and the offence was not one which subjected the individual committing it to anything like general infamy, or an imputation of bad character, so as to render his remaining in the Court as a Practitioner improper, we think it was not competent to the Court to inflict upon him a professional punishment for an act which was not done professionally, and which act, per se did not render him improper to remain as a Practitioner of the Court.
19. On this ground, therefore, we do not approve of the order. At the same time we desire it to be understood that we entirely concur with the Judges of the Court below in the estimate which they have formed of the gross impropriety of the conduct of the Appellant. But we are still of opinion his conduct did not require and did not authorize a departure from the ordinary mode and. standard of punishment; and upon that ground, and that ground only, we shall advise Her Majesty to discharge the Order, in respect of its having substituted a penalty and mode of punishment which was not the appropriate and fitting punishment for the case in question."
20. The learned Chamber Judge in his report in this case says that In re Wallace was decided on its own facts and is no authority for holding that a legal practitioner could never be punished for professional misconduct committed by him in his personal capacity, however gross the offence may be. The same view has been taken by the Allahabad High Court in In the matter of a Pleader (1932) I.L.R. 55 All. 148. With respect we agree with this view. The effect of the judgment certainly seems to be that contempt of Court by an advocate or attorney, not in the exercise of his profession but in a private capacity, does not render him liable to be punished professionally unless it can further be said that his conduct in some way affects his fitness to be a member of the profession. But their Lordships found as a fact that Wallace's professional status and character was not affected by what he had done. Nothing was alleged against him except the fact of addressing an improper and contemptuous letter to the Court in respect of something supposed to have been done unjustly to the writer in his private capacity as a suitor and that it was held did not per se render him improper to remain as a practitioner of the Court. Those were the facts on which the judgment was based. Had the facts been different in that respect, the decision would no doubt have been different. Their Lordships did not say, and there is no reason to suppose that they meant, that contempt of Court when committed in a private capacity can never be of such a nature as to show professional unfitness.
21. It is difficult to see how there could be a grosser contempt than to allege that a Judge has acted with prejudice, bias and malice in the course of his judicial duties, that he decided a case not according to his own convictions but to please somebody else (that appears to be the meaning of the passage which is made the subject of the second charge) and that he abused his powers as a Judge and acted dishonestly and in bad faith.
22. Learned counsel for the opponent has argued that no offence was committed, not even contempt of Court, because these allegations were contained in a notice under Section 80, which the opponent was bound to submit before bringing a suit. But without very strong authority--and no authority has been cited in that connection--we are not prepared to say that a man merely by filing or threatening to file a suit and calling his communication a notice under Section 80 can insult and vilify a Judge in this manner. The opponent must have known, or ought to have known, being a practitioner of the law, that his suit was unmaintainable even apart from the technical flaw of want of sanction under the Government of India Act. No suit of the kind lies for anything said or done by a Judge in his jurisdiction or in a bona fide belief that he has jurisdiction, and there can be no sort of question but that a Judge has jurisdiction to criticise a witness. As for the allegation in the second letter denying the Judge's jurisdiction to make the orders which he made in the small cause suit, that was not a matter that concerned Karani who was not a party, and anyhow, in view of the result of the appeal and revision application, there was no substance in the point. The fact therefore that these scandalous allegations were contained in a notice under Section 80 does not in our opinion prevent them from being contempt of Court.
23. As for the plea of absolute privilege, that only means that the opponent could not be proceeded against for defamation, not that he is immune from any sort -of penalty. The fact that Mr. Kurwa himself had no remedy against the opponent only makes the matter worse, and is indeed one of the strongest reasons why this Court should take action. As their Lordships of the Privy Council said in S.B. Sarbadhicary, In re (1906) L.R. 34 I.A. 41, s.c. 9 Bom. L.R. 9 (p. 45): . . . it is essential to the proper administration of justice that unwarrantable attacks should not be made with impunity upon judges in their public capacity.
24. The opponent in his affidavit has stated that the Chief Justice told him he ought to apologise to Mr. Kurwa and that he decided that he would not apologise but file a suit. He never has apologised in any shape or form or expressed the slightest regret. On the contrary he appears to be of opinion that his conduct was perfectly justified. We do not wish to lay too much stress on the absence of an apology, though that might be very material in ordinary proceedings for contempt of Court. But the fact that the impropriety of his conduct was pointed out to him at an early stage and that nevertheless he persisted in filing his suit, appealing against the dismissal of the suit and so on, is, we think, material because it seems to show a determination to harass the-Judge which almost amounts to persecution.
25. One of the points raised by the opponent in his affidavit was that there was great delay in instituting these proceedings. But his counsel did not urge this point, probably for the very good reason that the delay is entirely due to the pendency of the litigation which the opponent insisted on prosecuting as long; as possible.
26. The learned Advocate General has submitted that the writing of these scandalous letters to Mr. Kurwa and the opponent's persistence in his entirely unwarrantable attacks on the Judge constitute conduct which shows him unfit to be an attorney. If such conduct is characteristic of him there could be no question about the matter, and the fact that he has shown himself to be capable of such conduct in this one instance raises grave doubts as to his being a fit person to cooperate with the Courts in the administration of justice. We think that in accordance with the principles which have been laid down as to the exercise of our disciplinary jurisdiction there is reasonable cause for taking, action under clause 10 of the Letters Patent.
27. We therefore suspend him from practice as an attorney for six months and. direct that he pay the costs of these proceedings including the costs of the inquiry before the Chamber Judge.