Topic: Rambharosa Kalar Bhawani Kalar vs Surendra Nath Thakur - Appearing for both sides

Rambharosa Kalar Bhawani Kalar vs Surendra Nath Thakur
Equivalent citations: AIR 1960 MP 81 - Madhya Pradesh High Court- Bench: T Shrivastava, P Tare - Date of Judgment: 30 March, 1959


Tare, J.

1. This is a reference under Section 13 of the Legal Practitioners Act (No. 18 of 1879) by the District Judge, Durg at Rajnandgaon at the instance of the applicant Rambharosa against the non-applicant.

2. The proceedings registered as Misc. Judicial Case No. 13 of 1954 and started in the Court of Civil Judge Class II, Rajnandgaon were dropped by him on 7-4-1955. He was of the view that he had no jurisdiction to continue the enquiry against the lawyer and, therefore, he referred the matter to the District Judge, who in his turn made a reference to this Court. Tambc J., by order dated 21-9-1956 decided to continue the enquiry and authorised Civil Judge Class II, Rajnandgaon to enquire into the allegations and submit his report to this Court. In compliance with the said order the learned Civil Judge has submitted a report dated 23-2-1957.

3. Although notices were issued to the applicant and the non-applicant more than once giving fixed dates of hearing before this Court, none of them cared to appear before us. Pandey J., by order dated 3-11-1958 directed that the case be heard by a Division Bench, if it was possible. Accordingly this reference has come up before us for decision. As none appeared for either side, we requested Shri M. P. Shrivastava, Deputy Government Advocate, to assist us by appearing amicus curiae and he was good enough to render all possible assistance to enable us to decide the case.

4. It is sufficient to refer to the report of the learned Civil Judge, which is exhaustive and which deals with every aspect of the case.

5. The applicant, who was the complainant, alleged that the non-applicant was his counsel, who had conducted the suit (namely, Civil Suit No. 74-A of 1953) against one Shardaprasad regarding possession of a house. Later, one Ghasia filed another suit, (namely, Civil Suit No. 84-A of 1954), against the applicant Rambharosa for possession of the very house. According to the applicant, T. Pleader, having conducted the previous suit on the applicant's behalf and having received all confidential instructions, could not appear against him in the subsequent suit filed by Ghasia. Besides this allegation, there were other allegations made against the non-applicant, which we shall deal in serial order, when we consider each finding of the learned Civil Judge.

6. The learned Civil Judge framed the following questions for determination:

(a) Did T. Pleader make use of certain confidential communications made to him by the applicant in Civil Suit No. 17-A of 1955?

(b) (i) Did T. Pleader persuade the plaintiffs Ghasia and others to institute the suit against Rambharosa, and assured them to finance the venture?

(ii) Did he obtain agreement from Ghasia and others for transfer of half the kinds in the event of success?

(c) Did T. Pleader's appearance and acts for Ghasia etc., and against Rambharosa in respect of the suit property constitute professional misconduct?

(d) Did T. Pleader retain certain documents belonging to the applicant and connected with the subsequent case?

(e) Did T. Pleader commit any other act so as to make himself liable for punishment under Section 13 of the Legal Practitioners Act?

7. The learned Civil Judge in his report absolved the non-applicant of any blame regarding questions Nos. (a), (b) (i) and (ii), (d) and (e). The learned Judge reported that there was nothing on record to prove any grossly improper conduct of T. Pleader, though he was of the opinion that the Lawyer was not sufficiently fair and dignified, as is expected from a member of the profession to which he belongs. The learned Judge held the non-applicant guilty of two instances of improper conduct. The question therefore, for our consideration would be whether these two instances amount to a professional misconduct actionable under Section 13 of the Legal Practitioners Act.

8. So far as the findings in favour of the non-applicant are concerned, we do not find anything to differ from the view of the learned inquiry Judge. Nor did the applicant appear before us to contest the correctness of those findings. However, the learned Deputy Government Advocate took us through the statements and the documents on record and urged that the findings given by the inquiry Judge were correct on those points. We are of opinion that the findings of the inquiry Judge on questions Nos. (a), (b) (i) and (ii), (d) and (e) are correct as there is no conclusive material on record adduced by the applicant to support his allegations on those questions. The action of the learned Judge in negativing the contentions of the applicant on those questions was in consonance with the dictum laid down by their Lordships of the Privy Council in A. a Pleader v. Judges of the High Court, Madras, AIR 1930 PC 144, which is as follows: "Before dealing with the charges, it is right

to state that, in their Lordships' opinion charges

of professional misconduct must be clearly proved

and should not be inferred from mere ground

nor suspicion, however reasonable, or what may

be mere error of judgment or indiscretion. An appropriate guide may be found in Section 13, Legal Practitioners Act, No. 18 of 1879, under which a pleader or muktar may be suspended or dismissed, who is guilty "of fraudulent or grossly improper conduct in the discharge of his professional duty"."

Applying the said test, we confirm the finding of the inquiry Judge on the said questions and hold that the non-applicant was not guilty of any of thy said four charges.

9. The learned inquiry Judge held the non-applicant guilty of improper conduct unbecoming of a lawyer of long standing and not in consonance with the dignity of the profession on question No. (c). The facts necessary to appreciate the findings of the inquiry Judge arc as follows:

The non-applicant, as already stated, had conducted Civil Suit No. 74-A of 1953 on behalf of the applicant against one Shardaprasad regarding possession of a house. In the subsequent suit, he appeared for Ghasia against the applicant in respect of the same house. The learned inquiry Judge was of the view that there was nothing improper on the part of the non-applicant to appear for Ghasia in the subsequent suit. We also think that the non-applicant's mere appearance for Ghasia against Rambharosa in the subsequent suit could in no way be held to be objectionable, particularly when the lawyer had issued a notice to his former client intimating that he was available for being engaged by the applicant & in case the applicant did not want to engage or retain him, he the lawyer) would appear for the other side.

10. Originally when the suit on behalf of Ghasia was filed Shri C. S. Shukla Pleader, who works as junior to the non-applicant, filed his power with the plaint. The plaint had in fact been drafted by the non-applicant himself and given over to Shri C. S. Shukla for the purpose of filing. The non-applicant, when confronted with this, denied having drafted the plaint. But the statement of Shri Shukla is definite on that point. To support the testimony of Shri Shukla, there are other circumstances on record, which conclusively establish the non-applicant's connection with the filing of the suit by Ghasia from its inception. The non-applicant in his deposition as N. A. W. 1, admitted the fact that the process form for summoning defendant, filed along with Ghasia's plaint, was in his own handwriting. His explanation was that, as Shri Shukla had no clerk, and as he did not know how to write process, the non-applicant wrote the process for his junior. Shri C. S. Shukla A. W. 2, in his deposition had unambiguously stated that the plaint was prepared at night by him at the house of the non-applicant in his presence. The plaint was got approved by the non-applicant, who made many amendments in the draft. We see no reason to discredit the testimony of Shri Shukla pleader who, in our opinion, has given a forthright version of the true facts.

11. The non-applicant, having taken interest in the suit filed by Ghasia on his behalf from the inception, was indiscreet enough in having issued a registered notice (Ex. A. 5), dated 22-6-1953. We think it appropriate to reproduce the whole of the notice which speaks for itself :

"You are hereby asked to let me know whether you wish me to appear for you in C. S. No. 84-A of 1954 filed by Ghasia and others against you in the Court of Civil Judge, Class II, Rajnandgaon. I am willing to accept Rs. 250/- rupees two hundred and fifty as my fee in the said case.

In case you require my services, you should pay my fee within a week from the date of receipt of this notice, so that I may prepare myself to take your case in right earnest.

In case you do not require my services, you should pay me Rs. 250/- rupees two hundred and fifty by way of retainer to restrain me from appearing for the plaintiffs.

Please reply within 3 days from the date of receipt of this notice. Else, I shall think that you do not like to pay me either fee or retainer."

12. The said notice, by itself was not objectionable, as it was required to be given before the non-applicant accepted the brief for Ghasia. But the circumstances under which it was given would amount to a misconduct. It would be pertinent to see what Shri Chandrashekhar Shukla, pleader, has to say about the part played by the non-applicant in drafting the plaint for Ghasia. The following extracts from his deposition (A. W. 2) would speak for themselves:

"I am acquainted with the name of Ghasia. I had drafted the plaint in C. S. No. 33-A of 1954 (Ghasia v. Rambharosa). This suit came to me through T. Pleader. I used to go to T. Pleader for learning work. I had started practice 4 or 5 months before when this suit came. The plaintiff Ghasia and others told T. Pleader about the facts concerned with this case in his office. At that time I was sitting at that very place and I also heard the talks."

"The plaint was drafted by T. Pleader. T. Pleader told me that I should appear in that case for the time being, as he himself was unable to appear for certain difficulties. He said to me that he would be there to help me & in case of necessity he himself would also appear. T. Pleader said to me that I should treat the case to be his own, and that he would pay me, reasonable amount of fees in lieu of that. I never suggested to Bodhi, Ghasia and others to engage T. Pleader as their counsel."

"I had no meeting with Bodhi, Ghasia and others after the plaint was prepared. An application was given by Bodhi, Ghasia and others to the effect that the instructions given by him were disclosed by me to Rambharosa for which they did not like to appoint me as their counsel. This application is false. I never disclosed anything to Rambharosa (Ex. A. 13 shown). This very application was given against me. At the time when I knew, I asked T. Pleader, who admitted that he got the said application given against me" ........

.......... "T. Pleader said that as he wanted a

date in this case, it became necessary to write against me and remove me."

"The copy of the plaint sent to the defendant and other writing etc., also used to be got done by T. Pleader only. T. Pleader only was responsible for getting the process written and other proceedings." ..............

"(Power dated 15-11-1954 shown from the original). It bears my signature. But the other entries are in the handwriting of T. Pleader. The certified copy (Ex. A. 2) thereof is produced. In this case the process was sent by T. Pleader to me and I having signed filed it. The certified copy of the process is Ex. A. 14. No fees have been paid to me in this case till today".

13. We see no reason to disbelieve the version of Shri Chandrashekhar Shukla, Pleader, who, in our opinion, has given a forthright and correct narration of the events. T. Pleader, in the beginning denied his association with the drafting of the plaint for Ghasia. But when confronted, had to admit facts, which corroborate the version of Shri Shukla pleader. It is, therefore, clear that T. Pleader had accepted the brief on behalf of Ghasia and had put forward Shri Shukla as the counsel, keeping himself in the background for ulterior purposes. Shri Shukla had nothing to do with either fees or costs. T. Pleader must have accepted money from Ghasia to meet expenses and he sent stamped plaint, power or applications or process to Shri Shukla for signature and filing, Thus there is no doubt that T. Pleader had taken full instructions from Ghasia and was in fact conducting and controlling the suit. He was not free to accept the brief on behalf of Rambharosa. In spite of this, he made an undignified attempt to strike a better bargain with the applicant by issuing the notice referred to above.

14. The role played by T. Pleader in relation to his own Junior Shri Shukla, pleader was not only dishonourable, but, mean. No fees were at all paid to Shri Shukla at any time. He was merely sought to be used as a figure-head to suit the convenience of T. Pleader and to be chucked off, when his usefulness was over. T. Pleader's attempt to persuade Ghasia to dispense with the services of Shri Shukla by imputing professional misconduct was contrary to all notions of ordinary morality and the dignity of the profession. This only shows the unscrupulousness of T. Pleader and the extent to which he can go to achieve his own interest by sacrificing an innocent junior of his. This is hardly an example to be set by a senior while dealing with his own junior, who is newly introduced in the profession.

15. The second point on which the learned inquiry Judge held the non-applicant guilty of improper conduct was his denial regarding his association with the draft plaint filed on behalf of Ghasia. We have no hesitation in disapproving of the conduct of the non-applicant, inasmuch as he made an incorrect statement in this behalf and admitted facts only, when he was confronted by his junior, Shri Shukla A. W. 2. Subsequently the non-applicant withdrew from the case upon an objection taken by the applicant Rambharosa.

16. In Emperor v. Rajanikant Ghosh AIR 1923 Cal 106, a Division Bench of the Calcutta High Court held that a legal practitioner appearing for both the sides was guilty of a professional misconduct. However, the only relieving feature in the present case is that the non-applicant did not actually appear for both the sides, but merely attempted to make the best of the bargain by issuing that improper notice knowing full well that he had rendered himself incapable of accepting the brief on behalf of Rambharosa. Had he actually appeared for both the sides, we might have been persuaded to take a serious view of his action, However, under the circumstances, we are not inclined to do that. But, all the same, we are of opinion that the non-applicant was guilty of a grossly improper conduct, which is not in consonance with the dignity of the profession. Similarly his action in having taken an incorrect stand before the inquiry officer, was also an indiscreet act of improper conduct, which we disapprove of totally,

17. The conduct of the non-applicant was such as would shake the confidence of the litigants in the profession and it was certainly contrary to the high dignity of the profession, which it is supposed to have; and not at all in consonance with the long standing that the non-applicant has in the profession.

18. For the reasons aforesaid, we accept the reference partly and hold that the non-applicant was guilty of a highly improper conduct amounting to professional misconduct deserving action under Section 13 of the Legal Practitioners Act. We express our disapproval of his action and direct that he be suspended from practice for a period of six months for his highly improper conduct, which would serve the ends of justice in the present case.

As regards the paper book costs amounting to Rs. 136/-, we direct that the same be recovered from be non-applicant.

19. We expected that the non-applicant would appear before us in order to explain his conduct and to make a clean breast of it. But he chose to remain absent in spite of notices giving fixed dates. We, therefore, return this reference to the District Judge with the direction that the District Judge shall take the necessary action regarding the non-applicant's suspension from practice and in the matter of recovering the paper book costs.