Topic: Harish Chander Singh vs S.N. Tripathi - Misguiding Junior Advocate

Harish Chander Singh vs S.N. Tripathi
Bench: B.P. Jeevan Reddy, S.B. Majmudar - Date Of Judgment: 27/01/1997

J U D G M E N T

S.B. Majumdar,J.

The appellant, Harish Chander Singh, has     brought in challenge the     order    passed     by the members of the Disciplinary Committee    of the    Bar Council of India holding him guilty of professional misconduct and suspending     him from practice for a period of two years from the date of the communication of the order. Said appeal is    filed under Section 38 of the Advocates Act. 1961 read with Order 5 of Supreme Court Rules, 1966. This appeal was admitted to final hearing and in the meantime the operation of the order under appeal was stayed. Earlier in addition to Respondent S.N. Tripathi, President of the Bar Association, Akbarpur, on Syed Husain Ahmad was also joined as Respondent no.2. He was the co-delinquent along with the appellant. He was also held guilty of professional misconduct on the complaint of the original complainant and was ordered to be reprimanded. His involvement along with the appellant was in connection with the very same    transaction brought in challenge by     the complainant against both these     delinquents. However,    said Syed Husain Ahmad did    not challenge the finding of     the Disciplinary Committee against him and    the sentence imposed against him. At the request of the appellant, therefore, he was permitted    to be deleted    as second respondent in this appeal. Consequently the sole respondent who has remained in the arena of contest is the President of the Bar Association who filed the complaint before the State Bar     Council on behalf of the original complainant.

In order to appreciate the grievance of the appellant it is necessary to note a few introductory facts. One Daya Ram, the original complainant before the State Bar Council, filed a complaint against the appellant as well as the    aforesaid co-delinquent     Syed Husain Ahmad, both of whom at     the relevant time were practising advocates at Akbarpur in Ferozabad District     of Uttar Pradesh. In     the complaint it was alleged against the delinquents that he had engaged the appellant as his counsel    in a case pending before     Consolidation     Officer, Akbarpur between     the complainant and     one Bisai. Subsequently he had engaged one Tarakant Tripathi as     his counsel.     According to     the complainant the said case was fixed before the Consolidation Officer for 17th January, 1972. and     thereafter it was adjourned to 7th February, 1972. The     appellant who     was engaged as his counsel is the resident of Village Jamnipur. The land in connection    with which consolidation proceedings were pending wherein the appellant was engaged by     the complainant to    represent him,    was situated in the    same village. The consolidation proceedings     then were further adjourned to 21st February, 1972. In the meanwhile, in the evening of 17th January, 1972 the appellant asked him to appoint some Mukhtar so that    he may     be spared to     the necessity of coming to     attend the consolidation case every day. The complainant alleged that at    the instance of the appellant Syed    Husain Ahmad. Original Respondent no.2, the junior of the appellant, was appointed as Mukhtar and a Mukhtarnama was     got registered. That the contents of     the Mukhtarnama were not read over to him but he proceeded on the word of the appellant and having faith in him executed the Mukhtarnama in favour of his    junior.     Thereafter, however, the appellant entertained suspicion and on    29th January,1972 he     executed the Deed cancelling the above said Mukhtarnama and     got it registered. It thereafter transpired that the appellant had     obtained a Sale Deed in respect of property in question in favour of his father from Syed Husain Ahmad, Original Respondent no.2, who had acted as Mukhtar of the complainant and as such had purported to sell the said land on behalf of the complainant in favour of the appellant's father. The complainant     in favour of     the appellant's father. All that to intended to     do was to execute the Mukhtarnama to enable Original Respondent no.2 to do Pairwi in the consolidation case. It was, therefore, his complaint before the State Bar Council that he was duped and deceived by both these advocates, namely. Harish Chander Singh and Syed Husain    Ahmad,    his junior, and that     the Mukhtarnama was a fraudulent deed     which    enabled     the appellant to get the land transferred     in the name of his father. This complaint was supported by an affidavit. The complaint     was registered before the    Disciplinary Committee of the Bar Council of Uttar Pradesh. The complaint was sponsored    by S.N. Tripathi, President    of the     Bar Association, Akbarpur,    who forwarded the complaint of Daya Ram to    the Secretary, Bar Council. Uttar Pradesh, Allahabad and that is how the present respondent was shown as     the complainant in the disciplinary proceedings. The appellant resisted the proceedings by filing a written statement. His submission was that he was engaged by the complainant     as an    advocate in the consolidation    case which had originated on an objection made by one Bisai who had alleged that complainant Daya Ram had obtained the Sale Deed in     respect of the disputed property fraudulently and under deception. That the complainant was a literate person and he    executed the Power of    Attorney in favour of    Syed Husain Ahmad of his own accord and it was duly registered in the office of Sub-Registrar, Akbarpur, Faizabad.    That thereafter on 25th January, 1972 a Sale Deed was executed by Syed Husain Ahmad in favour of Nand Kishore Singh with full knowledge and participation of the complainant. That he was staying separate from his father and    he had    no knowledge about the said transaction. That Syed Husain Ahmad was not his junior.

So far as Original Respondent no.2 Syed Husain Ahmad is concerned, he also filed a written statement through     his counsel denying     the allegations made     in the complaint. However, ultimately during the     proceedings Respondent no.2 relented and submitted     that if he is found guilty of professional misconduct     he may     be pardoned and that he had acted due to inexperience and on the basis of faith in his senior advocate, the present appellant. Thus Respondent no.2 practically admitted the case    of the    complainant. As     the complaint could     not be     disposed of by the    Disciplinary Committee of the State Bar Council within one year it stood transferred to    the Bar     Council of India. Thereafter     the Disciplinary Committee of the Bar Council of India heard the parties, recorded their evidence and ultimately passed the aforesaid order against the appellant and Syed Husain Ahmad, the co-delinquent who is no longer in the arena of contest in the present proceedings as seen above. The learned counsel for the appellant vehemently contended that    the order under appeal is not sustainable by evidence on record and     is required to be set aside and the appellant is required    to be exonerated of    the charges levelled against him.

We have gone through the evidence on record, both oral and documentary, to which out attention was invited. Having carefully considered the same we are not able to accept any of the    contentions canvassed by learned counsel for     the appellant. The tell-tale circumstances which have emerged on record clearly    indicate that the appellant was quilty of professional misconduct. These circumstances run as under :

1. The appellant was admittedly engaged as    a counsel of the complainant to represent him in the consolidation proceedings which    were pending against him wherein the dispute regarding    the very same suit land was on the anvil between the complainant Daya Ram on the one hand and complainants father's sister's husband Shri Bisai.

2. It     is also well     established    that the appellant persuaded the complainant to execute a Mukhtarnama in favour of Respondent no.2 whose evidence showed that he was the appellant's junior and was well known to him and accordingly Mukhtarnama was executed by complainant Daya Ram in favour of Respondent no.2.

3. That Respondent no.2 executed Sale Deed in respect of the property in favour of Shri Nand Kishore Singh.

4. Shri Nand     Kishore Singh was    the father of     the appellant.

5. The copy of the Mukhtarnama dated 18th January, 1972 shows that     the complainant had allegedly     given    full power to Respondent no.2 to dispose of his property.

6. The copy of the Sale Deed dated 25th January, 1972 was executed by Respondent no.2 as an agent of complainant in     favour     of Nand Kishore Singh, father of     the appellant.

7. The copy of the Kutumb Register showed that Shri Nand Kishore Singh and the appellant being father and son were living in the same house.

All these    circumstances well established on record clearly point out an accusing finger to the appellant. The appellant's vain attempt to show that he did not know about the transaction of the Sale Deed in favour of his father had remained abortive for the simple reason that nothing     was brought out on record by him to show that he was in any way having strain relations with his father. Equally a    vain attempt was made by the appellant to show that Respondent no.2 was not known to him or he was not his junior. There is no reason as to why we should not accept the clear-cut evidence on this aspect as led by Respondent no.2 who stated that he     was the appellant's junior and he was misguided by him and     accordingly he     was made to execute the Sale Deed dated 25th January, 1972 acting Mukhtar of the complainant and by    which he tried to sell complainant's    land to the appellant's father. All these circumstances will established on record leave no room for doubt that the appellant was clearly quilty    of professional misconduct. The Disciplinary Committee was, therefore, right in taking the view that the complainant was duped by his advocate, namely, the appellant who had misused the confidence reposed by the complainant in him and     had tried to dispose of the complainant in him and had tried to dispose of the complainant's property in favour of his own father. Under these circumstances the findings of professional misconduct as recorded in the impugned judgment against the appellant must be held to be well made out on the record of the case and cannot be found fault with form any angle. So    far as     the sentence    of suspension    from practice for two years     is concerned that also cannot be treated to be too harsh or grossly disproportionate in the light of the professional misconduct. After the matter was fully heard, we tried to get information from the appellant by our order dated 27th February, 1996 on the following: "Hearing of    this appeal is

concluded. But before we pronounce

our judgment it is necessary to

have the following information for

making appropriate orders:

1.     Whether the appellant's father

Shri Nand    Kishore     is alive? and

whether Daya Ram is alive today? If

Daya Ram is dead, who are his legal

representatives?

2.     Whether the property which was

conveyed by Daya Ram through his

power of     attorney, Shri Syed

Hussain Ahmad, Advocate in favour

of the appellant's father Shri Nand

Kishore his been cancelled and the

property conveyed    back to Daya Ram

or his heirs, as    the case may be,

or not?

3.     What    has happened    to the

consolidation proceedings which

were pending with respect     to the

land which     was sold in favour of

the appellant's father ?

The appellant shall file an

affidavit stating    the information

with respect to the above points.

List the matter after six weeks for

judgment."

However, learned counsel for the appellant was not in a position to file any such affidavit or to give any    such information. Consequently by our further order dated 16th April 1996 we made it clear that we    had no option but to deliver the judgment.

However, on further consideration     by order dated 24th April, 1996 we directed that    notices     be issued to     (1) Complainant Daya Ram; and (2) Nand Kishore Singh calling upon them to show cause as to why we should not    pass appropriate orders for setting     aside the Sale Deed dated 25th January, 1972 purported    to have been    executed by Original Respondent no.2 Syed Husain Ahmed, Power of Attorney holder     of complainant     Daya Ram is favour of the transferee Nand Kishore Singh.

Pursuant to the     notices issued to them it     has transpired that     said Nand Kishore Singh as well as Daya Ram are dead since long. In I.A. No.     1 filed in these proceedings it    has been averred that even the impugned Sale Deed was held to be fictitious and not binding on Daya Ram by authorities entrusted with    the task of consolidation of holdings and Daya Ram himself in his lifetime had agreed to sell this very property to third parties who have already obtained a decree for specific performance against Daya Ram and have got the decree executed against the estate of Daya Ram. In     view of these latter    development brought to     out notice, by our order dated 20th January, 1997 we    have discharged the    notices issued    by us earlier on 24th April, 1996. Consequently now remains no occasion to pass any order in connection    with the impugned Sale Deed     dated    25th January, 1972. In the light of our earlier order dated 16th April, 1996, therefore, judgment in this appeal has now to be delivered.

In view of our findings     recorded hereinabove    this appeal is liable to fail and is accordingly dismissed with costs. Interim    relief granted    during the pendency of this appeal will stand vacated.