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CASE NO.: Appeal (civil) 1124 1998

PETITIONER: D.P.  CHADHA

       Vs.

RESPONDENT: TRIYUGI NARAIN MISHRA & ORS.

DATE OF JUDGMENT:       05/12/2000

BENCH: R.C.Lahoti, K.G.Balakrishna

JUDGMENT:

R.C.  Lahoti, J. L.....I.........T.......T.......T.......T.......T.......T..J

     Shri  D.P.  Chadha, advocate, the appellant, has  been held  guilty  of professional misconduct by Rajasthan  State Bar Council and punished with suspension from practice for a period  of five years.  Shri Anil Sharma, advocate was  also proceeded against along with Shri D.P.  Chadha, advocate and he  too having been found guilty was reprimanded.  An appeal preferred by Shri D.P.  Chadha, advocate under Section 37 of the  Advocates Act, 1961 has not only been dismissed but the Bar  Council  of India has chosen to vary the punishment  of the  appellant  by enhancing the period of  suspension  from practice  to  ten years.  The Bar Council of India has  also directed  notice  to  show   cause  against  enhancement  of punishment  to be issued to Shri Anil Sharma, 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 Advocates Act, 1961 (hereinafter the Act, for short).

     It  is  not  disputed that Upasana  Construction  Pvt. 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 2000 students were studying. Shri  D.P.   Chadha  was  engaged  by  the  complainant  for defending him in the suit.

     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  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 was in Chilpur in the State  of

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U.P.   looking  after  the election and  was  certainly  not available at Jaipur.  Shri D.P.  Chadha was in possession of a  blank  vakalatnama and a blank paper, both signed by  the complainant,  given  to  him in the first week  of  October, 1993.    These  documents  were   used  for  fabricating   a compromise petition whereby the complainant has been made to suffer  a  decree for eviction.  The blank  vakalatnama  was used  for engaging Shri Anil Sharma, advocate, on behalf  of the  complainant,  who got the compromise verified.   Though the  compromise  was  detrimental  to the  interest  of  the complainant   yet   the  factum  of   compromise   and   its verification  was  never  brought  to   the  notice  of  the complainant  inspite  of  ample time and  opportunity  being available  for  the purpose.  The proceedings of  the  court show  a deliberate attempt having been made by three  erring advocates  to avoid the appearance of the complainant before the  court,  to  prevent   the  complainant  from  gathering knowledge  of  the compromise filed in court and creating  a situation  whereby the court was virtually compelled to pass a  decree  though  the court was feeling suspicious  of  the compromise  and wanted presence of complainant to be secured before it before the decree was passed.

     The proceedings of the court and the several documents relating  thereto  go  to show that  earlier  the  plaintiff company  was being represented by Shri Vidya Bhushan Sharma, advocate.   An  application  was  moved  on  behalf  of  the plaintiff  discharging  Shri Vidya Bhushan Sharma  from  the case  and  instead  engaging Shri Rajesh Jain,  advocate  on behalf  of the plaintiff and in place of Shri Vidya  Bhushan Sharma,  advocate.   On  17.11.1993 Shri  D.P.   Chadha  was present  in  the court though the defendant was not  present when  an  adjournment was taken from the court stating  that there  was possibility of an amicable settlement between the parties  whereupon  hearing was adjourned to  14.2.1994  for reporting  compromise or framing of issues.  On  20.11.1993, which was not a date fixed for hearing, Shri Rajesh Jain and Shri  Anil Sharma, advocates appeared in the court on behalf of  the plaintiff and the defendant respectively and filed a compromise  petition.   Shri Anil Sharma  filed  Vakalatnama purportedly on behalf of the complainant.

     The  compromise petition purports to have been  signed by  the  parties  as also by Shri Rajesh Jain,  advocate  on behalf  of  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 in 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.

     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  misce.   civil appeal raising a plea that the trial court was not justified in  directing personal appearance of the parties and  should

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have   recorded  the  compromise  on  verification  by   the advocates.   The complainant Shri Triyugi Narain Mishra  was impleaded  as respondent through advocate Shri Anil Sharma __  as  stated  in the cause title of memo of  appeal.   The appeal  was  filed on 20.12.1993.  Notice of appeal was  not issued  to the complainant;  the same was issued in the name of  Shri Anil Sharma, advocate, who accepted the same.  Shri Anil Sharma, advocate did not file any vakalatnama on behalf of  the  complainant  in  the appeal and  instead  made  his appearance  by  filing  a memo of  appearance  reciting  his authority  to  appear in appeal on the basis of his being  a counsel for the complainant in the trial court.  This appeal was  dismissed  by the Learned Additional District Judge  on 24.1.1994 holding the appeal to be not maintainable.

     On 30.1.1994, the trial courts record was returned to it  by  the appellate court.  On 17.12.1993 also  the  trial court  had directed personal appearance of the parties.   On 16.2.1994  the counsel appearing for the parties (the  names of  the  counsel  not  mentioned in the  order  sheet  dated 16.2.1994) took time for submitting case law for the perusal of  the  court.   Similar prayer was made on  21.2.1994  and 18.3.1994.   On 8.4.1994, the plaintiff was present with his counsel.   The defendant/complainant was not present.   Shri D.P.   Chadha, advocate appeared on behalf of the  defendant and  argued  that personal presence of Shri  Triyugi  Narain Mishra  was not required for verification of compromise  and the  presence  of the advocate was enough for the  court  to verify  the  compromise  and take the same on  record.   The court  was  requested to recall its earlier order  directing personal  appearance  of the parties.  A few  decided  cases were  cited by Shri D.P.  Chadha, advocate before the  court for  its  consideration.   The  trial  court  suspected  the conduct of the counsel and passed a detailed order directing personal  presence of the defendant to be secured before the court.   The trial court also directed a notice to be issued to  the  defendant for his personal appearance on  the  next date  of hearing before passing any order on the  compromise petition.

     Shri  Rajesh  Jain,  advocate again  filed  an  appeal against the order dated 8.4.1994.  Again the complainant was arrayed  as  a respondent in the cause title  through  Shri Anil Sharma, advocate.  An application was moved before the appellate  court  seeking  a  shorter  date  of  hearing  as defendant  was likely to go out.  On 21.8.1994 the appellate court  directed  the  record  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  misce.   appeal  was  not  maintainable  under  any provision of law.

     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

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Judge,  left with no other option, passed a decree in  terms of  compromise  in the presence of Shri Rajesh Jain  &  Shri Anil  Sharma,  advocates.   The  decree  directed  the  suit premises to be vacated by 30.11.1993 (the date stated in the compromise petition).

     Shri Triyugi Narain Mishra, the complainant, moved the State Bar Council complaining of the professional misconduct of  the three advocates who had colluded to bring the  false compromise  in existence without his knowledge and also made all effort to prevent the complainant gathering knowledge of the alleged compromise.

     In  response  of  the notice issued by the  State  Bar Council,  Shri  Anil Sharma, advocate submitted that he  did not  know  Shri  Triyugi   Narain  Mishra  personally.   The vakalatnama  and the compromise petition were handed over to him  by Shri D.P.  Chadha, advocate for the purpose of being filed  in the court.  Shri Anil Sharma was told by Shri D.P. Chadha,  advocate that he was not well and if there was  any difficulty  in securing the decree then he was available  to assist  Shri Anil Sharma.  In the two misce.  civil  appeals preferred  by  Shri Rajesh Jain, advocate, Shri Anil  Sharma accepted  the  notices of the appeals on the advice of  Shri D.P.  Chadha, advocate.

     Shri  D.P.  Chadha, advocate took the plea that he was not  aware  of  the  compromise  petition  and  the  various proceedings  relating thereto leading to verification of the compromise  and passing of the decree.  He submitted that he never  obtained  blank paper or blank vakalatnama signed  by any one at any time and not even Shri Triyugi Narain Mishra, the  complainant.   He also submitted that on  8.4.1994  his presence has been wrongly recorded in the proceedings and he had not appeared before the court to argue that the personal presence of the parties was not required for verification of compromise  petition  filed  in the court  and  counsel  was competent  to  sign  and verify the compromise  whereon  the court should act.

     Amongst  other witnesses the complainant and the three counsel  have all been examined by the State Bar Council and cross   examined   by  the   parties  to  the   disciplinary proceedings.   The defence raised by the appellant has  been discarded  by  the State Bar Council as well as by  the  Bar Council of India in their orders.  Both the authorities have dealt  extensively  with the improbabilities of the  defence and  assigned  detailed reasons in support of  the  findings arrived  at  by them.  Both the authorities have  found  the charge  against  the  appellant  proved to  the  hilt.   The statement  of the complainant has been believed that he  had never  entered into any compromise and 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  noted  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  &  one blank paper  signed  by  the complainant.   The  Bar  Council has found  that  the  blank

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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  appellants defence emphatically raised in his  written statement.   On  8.4.1994 the presence of the  appellant  is recorded  by  the trial court at least at two places in  the order  sheet  of that date.  It is specifically recorded  in the  context  of  his making submissions  before  the  court relying   on  several  rulings  to  submit   that   personal appearance  of  the  party  was not necessary  to  have  the compromise  verified and taken on record.  The appellant had not moved the court at any time for correcting the record of the  proceedings  and  deleting his appearance only  if  the order  sheet did not correctly record the proceedings of the court.   On and around the filing of the compromise petition before  the trial court the appellant was keeping a watch on the  proceedings  and noting the appointed dates of  hearing though  he  was not actually appearing in the court  on  the dates other than 8.4.1994.  In short, it has been found both by  the State Bar Council and the Bar Council of India  that the  complainant had not entered in any compromise and  that he  was  not even aware of it.  Blank vakalatnama and  blank paper  entrusted  by him in confidence to his counsel,  i.e. the appellant, were used for the purpose of bringing a false compromise  into existence and appointing Shri Anil  Sharma, advocate  for the defendant, without his knowledge, to  have compromise  verified  and  brought on record followed  by  a decree.   Shri Vidya Bhushan Sharma, the counsel  originally appointed by the plaintiff might not have agreed to a decree being  secured in favour of the plaintiff on the basis of  a false  compromise  and that is why he was excluded from  the proceedings  and  instead  Shri Rajesh Jain was  brought  to replace  him.   The  decree  resulted into  closure  of  the school,  demolition  of  school   building  and  about  2000 students studying in the school being thrown on the road.

     We  have heard the learned counsel for the parties  at length.   We  have  also gone through the evidence  and  the relevant  documents available on record of the Bar  Council. We  are of the opinion that the State Bar Council as well as the  Bar  Council  of India have correctly  arrived  at  the findings  of the fact and we too find ourselves entirely  in agreement with the findings so arrived at.

     In  the  very nature of things there was nothing  like emergency,  not even an urgency for securing verification of compromise  and  passing  of  a  decree  in  terms  thereof. Heavens  were  not  going to fall if the  recording  of  the compromise  was  delayed  a  little and  the  defendant  was personally  produced  in  the court who  was  certainly  not available  in  Jaipur  being  away  in  the  State  of  U.P. contesting  an  election.  The counsel 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 misce.   appeals  twice  and ultimately  succeeded in securing an appellate order,  which

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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 C.P.C.  or any other  provision  of law.   In an earlier round the appellate court had expressed that  view.  The proceedings in the appellate court as  also before  the  trial court show an effort on the part  of  the counsel  appearing  thereat  to  have   the  matter  as   to compromise  disposed of hurriedly, obviously with a view  to exclude   the  possibility  of   the   defendant-complainant gathering any knowledge of what was transpiring.

     Order  23  Rule  3  of the C.P.C.   reads  as  under:- Compromise  of  suit.   __  Where  it  is  proved  to   the satisfaction  of  the  Court that a suit has  been  adjusted wholly  or in part by any lawful agreement or compromise, in writing  and  signed by the parties, or where the  defendant satisfies  the plaintiff in respect of the whole or any part of  the  subject-matter of the suit, the Court  shall  order such  agreement, compromise or satisfaction to be  recorded, and shall pass a decree in accordance therewith so far as it relates  to  the  parties to the suit, whether  or  not  the subject  matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit.

     xxx xxx xxx xxx xxx xxx xxx xxx

     Byram  Pestonji  Gariwala Vs.  Union of India  &  Ors. AIR  1991  SC 2234 is an authority for the proposition  that inspite  of  the  1976 Amendment in Order 23 Rule 3  of  the C.P.C.   which requires agreement or compromise between  the parties  to  be  in writing and signed by the  parties,  the implied  authority  of counsel engaged in the thick  of  the proceedings  in  court,  to compromise or agree  on  matters relating  to  the parties, was not taken away.  Neither  the decision  in Byram Pestonji Gariwala nor any other authority cited  on 8.4.1994 before the trial court dispenses with the need  of  the  agreement or compromise being proved  to  the satisfaction of the court.  In order to be satisfied whether the  compromise was genuine and voluntarily entered into  by the  defendant, the trial court had felt the need of parties appearing  in  person  before the court  and  verifying  the compromise.   In  the facts & circumstances of the case  the move  of the counsel resisting compliance with the direction of  the  court  was nothing short of  being  sinister.   The learned  Additional  District Judge who allowed  the  appeal preferred  by  Shri Rajesh Jain unwittingly fell into  trap. It  was  expected of the learned Additional District  Judge, who  must have been a senior judicial officer, to have  seen that   he  was  allowing  an   appeal  which  was  not  even maintainable.   But  for his order the learned Judge of  the trial  court  would not have taken on record the  compromise and  passed  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 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

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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:

     8.4.94

     (Cutting).     Plaintiff    with    counsel   present. Defendants  counsel  Shri  D.P.Chadha  present.   Arguments heard.   Judicial  precedents  A.I.R.  1980 Cal  51,  A.I.R. 1976  Raj.   195,  A.I.R.  1991 SC 2234 cited by  Shri  D.P. Chadha   perused.   In  the   matter  under   consideration, compromise  was  filed  on  20.11.93 and the  same  day  the counsel  were directed to keep the parties present in  court but  parties were not produced.  On behalf of the plaintiff- appellant,  an  appeal was also preferred against the  order dated  20.11.93 before the Honble Distt.  & Sessions  Judge but  the  order of trial court being not appealable,  appeal has been dismissed.

     Para  No.40 of the decision A.I.R.  1991 SC 2234 is as under :

     Accordingly,  we  are of the view that the words  in writing  and  signed  by  the   parties  inserted  by   the CPC(Amendment) Act, 1976 must necessarily mean to borrow the language of Order III R.1 CPC.

     Any  appearance  .  .  .  .  .  .  .  .  .  or  by  a pleader  appearing applying or acting as the case may be  on his behalf.

     Provided  that any such appearance shall if the  court so desires be made by the party in person.

     Thus  in my view the court can direct any party to  be present  in court under Order III R.1 in compliance with the said decision of Honble Supreme Court.  The counsel for the defendant   has  not  produced   the  defendant  in   court. Therefore,  notice  be  issued to the  defendant  to  appear personally in court.  For service of notice, the case be put up  on 5.5.94.  Before (cutting) preparing the decree on the basis  of  compromise, I deem it proper in the  interest  of justice to direct the opposite party to personally appear in the court.

     Sd/-  Illegible  Seal  of Addl.  Civil Judge  &  Addl. Chief Judl.  Magistrate No.6, Jaipur City.

     [underlining by us]

     The  record  of the proceedings made by the  court  is sacrosanct.   The  correctness  thereof  cannot  be  doubted merely  for  asking.   In State of Maharashtra  Vs.   Ramdas Shrinivas  Nayak  & Anr.  AIR 1982 SC 1249, this  court  has held    .  .  .  .  .  .  .  .  .  .the Judges record  was conclusive.   Neither  lawyer  not  litigant  may  claim  to contradict  it, except before the Judge himself, but nowhere else.   The  court could not launch into inquiry as to  what transpired in the High Court.

     The  Court  is  bound to accept the statement  of  the Judges  recorded in their judgment, as to what transpired in court.   It  cannot allow the statement of the Judges to  be contradicted  by  statements at the Bar or by affidavit  and

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other  evidence.   If the Judges say in their judgment  that something  was done, said or admitted before them, that  has to  be the last word on the subject.  The principle is  well settled that statements of fact 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 end there.

     Again  in  Bhagwati  Prasad & Ors.  Vs.   Delhi  State Mineral Development Corporation - 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 not, therefore, open to the parties or  the Counsel to say that the proceedings recorded by the Tribunal are incorrect.

     The  explanation given by the appellant for not moving the  trial  court  for  rectification   in  the  record   of proceedings  is  that the presiding judge of the  court  had stood transferred and therefore it would have been futile to move  for  rectification.   Such an explanation  is  a  ruse merely.   The application for rectification should have been moved  as the only course permissible and, if necessary, the record  could have been sent to that very judge for  dealing with prayer of rectification wherever he was posted.  In the absence  of  steps  for rectification having  been  taken  a challenge  to the correctness of the facts recorded in order sheet  of the court cannot be entertained, much less upheld. We agree with the finding recorded in the order under appeal that  the  proceedings  dated 8.4.1994 correctly  state  the appellant having appeared in the court and argued the matter in the manner recited therein.

     The term misconduct has not been defined in the Act. However,  it  is  an  expression with  a  sufficiently  wide meaning.   In view of the prime position which the advocates occupy  in  the  process of administration  of  justice  and justice  delivery system, the courts justifiably expect from the  lawyers  a  high  standard of  professional  and  moral obligation  in  the discharge of their duties.  Any  act  or omission  on  the  part  of a  lawyer  which  interrupts  or misdirects  the  sacred flow of justice or which  renders  a professional  unworthy of right to exercise the privilege of the  profession  would amount to misconduct  attracting  the wrath  of disciplinary jurisdiction.  In the Bar Council  of Maharashtra Vs.  M.V.  Dabholkar (1976 (2) SCC 291), Krishna Iyer,  J.   said that the vital role of the  lawyer  depends upon  his  probity and professional lifestyle.  The  central function  of  the  legal  profession   is  to  promote   the administration  of justice.  As monopoly to legal profession

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has been statutorily granted by the nation, it obligates the lawyer  to  observe scrupulously those norms which make  him worthy  of  confidence of community in him as a  vehicle  of justice  __  social  justice.  The Bar  cannot  behave  with doubtful scruples or strive to thrive on litigation.  Canons of  conduct cannot be crystalised into rigid rules but  felt by  the collective conscience of the practitioners 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  with  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 crystallized 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.

     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 duty to his  opponent, a duty to the court, a duty to the society at large  and  a  duty to himself.  It needs a high  degree  of probity  and  poise  to strike a balance and arrive  at  the place  of righteous stand more so when there are conflicting claims.   While  discharging  duty to the  court,  a  lawyer should  never knowingly be a party to any deception,  design or  fraud.  While placing the law before the court a  lawyer is  at  liberty to put forth a proposition and  canvass  the same  to the best of his wits and ability so as to  persuade an  exposition which would serve the interest of his  client so  long  as  the  issue is capable of  that  resolution  by adopting  a  process of reasoning.  However, a point of  law well  settled  or  admitting of no controversy must  not  be dragged  into doubt solely with a view to confuse or mislead the  Judge  and  thereby gaining an undue advantage  to  the client  to which he may not be entitled.  Such conduct of an advocate  becomes worse when a view of the law canvassed  by him  is not only unsupportable in law but if accepted  would damage the interest of the client and confer an illegitimate advantage on the opponent.  In such a situation the wrong of the  intention  and impropriety of the conduct is more  than apparent.  Professional misconduct is grave when it consists of  betraying the confidence of a client and is gravest when it  is  a deliberate attempt at misleading the court  or  an attempt  at practising deception or fraud on the court.  The client  places  his  faith and fortune in the hands  of  the counsel  for the purpose of that case;  the court places its confidence  in the counsel in case after case and day  after day.   A client dissatisfied with his counsel may change him but  the same is not with the court.  And so the bondage  of trust  between  the  court  and the  counsel  admits  of  no breaking.

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     In  George  Frier Grahame Vs.  Attorney-General,  Fiji [AIR  1936  PC  224]  the Privy  Council  has  approved  the following  definition of professional misconduct given  by Darling  J.   in  Re A Solicitor ex parte  the  Law  Society [(1912) 1 KB 302] -

     If it is shown that an Advocate in the pursuit of his profession  has done something with regard to it which would be  reasonably  regarded as disgraceful or dishonourable  by his  professional  brethren of good repute  and  competency, then  it  is open to say that he is guilty  of  professional misconduct.

     It  has been a saying as old as 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 counsel  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 chariot.  As a responsible officer of the court, as  they are called __ and rightly, the counsel have an over all  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 profession but over- zealousness and misguided enthusiasm have no place in the personality of a professional.

     An  advocate while discharging duty to his client, has a  right to do every thing 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 concession merely because it would  please the Judge.  Yet a counsel, in his zeal to earn success for a client,  need  not  step  over the well  defined  limits  or propriety,   repute   and    justness.    Independence   and fearlessness  are not licences of liberty to do anything  in the  court  and to earn success to a client whatever be  the cost and whatever be the sacrifice of professional norms.

     A  lawyer  must not hesitate in telling the court  the correct  position of law when it is undisputed and admits of no  exception.  A view of the law settled by the ruling of a superior  court  or a binding precedent even if it does  not serve the cause of his client, must be brought to the notice of court unhesitatingly.  This obligation of a counsel flows from  the  confidence  reposed by the court in  the  counsel appearing  for  any of the two sides.  A counsel,  being  an officer  of court, shall apprise the Judge with the  correct position of law whether for or against either party.

     Mr.   Justice Crampton, an Irish Judge, said in  Queen Vs.  OConnell, 7 Irish Law Reports, at page 313:

     The  advocate is a representative but not a delegate. He  gives  to  his client the benefit of his  learning,  his talents  and his judgment;  but all through he never forgets what  he  owes  to  himself  and to  others.   He  will  not knowingly  misstate  the law, he will not wilfully  misstate the facts, though it be to gain the case for his client.  He will  ever  bear  in mind that if he be an  advocate  of  an individual  and retained and remunerated often inadequately,

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for  valuable  services,  yet he has a prior  and  perpetual retainer  on  behalf  of truth and justice and there  is  no Crown or other license which in any case or for any party or purpose  can  discharge him from that primary and  paramount retainer.

     We  are aware that a charge of misconduct is a serious matter  for  a practising advocate.  A verdict of  guilt  of professional  or other misconduct may result in reprimanding the advocate, suspending the advocate from practice for such period as may be deemed fit or even removing the name of the advocate  from  the roll of advocates which would  cost  the counsel  his career.  Therefore, an allegation of misconduct has  to be proved to the hilt.  The evidence adduced  should enable  a  finding  being recorded without  any  element  of reasonable  doubt.  In the present case, both the State  Bar Council  and  the Bar Council of India have arrived  at,  on proper  appreciation 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 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  that  the defendant had in fact compromised the suit in the manner set out in the petition of compromise.

     The  power of the court to direct personal presence of any  party is inherent and implicit in jurisdiction  vesting in  the  court to take decision.  This power is a  necessary concomitant   of   courts  obligation  to   arrive   at   a satisfaction  and  record  the same as spelt  out  from  the phraseology  of  Order 23 Rule 3 C.P.C..  It is explicit  in Order  3  Rule 1.  This position of law admits of no  doubt. Strong  resistance was offered to an innocuous and  cautious order  of  the court by canvassing an  utterly  misconceived proposition,  even  by invoking a wrong appellate forum  and with  an  ulterior  motive.  The counsel appearing  for  the defendant,  including  the appellant, did their best to  see that  their  own  client  did not appear in  the  court  and thereby  gather knowledge of such proceedings.  At no stage, including  the hearing before this court, the appellant  has been  able to explain how and in what manner he was  serving the  interest of his client, i.e.  the defendant in the suit by  raising the plea which he did.  What was the urgency  of having  the  compromise  recorded   without  producing   the defendant  in-person  before  the court when the  court  was insisting  on such appearance?  The compromise was filed  in the  court.   The defendant was away electioneering  in  his constituency.  At best or at the worst, the recording of the

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compromise  would  have been delayed by a few days.  In  the facts  and  circumstances of the case we find no  reason  to dislodge  the finding of professional misconduct as  arrived at by the State Bar Council and the Bar Council of India.

     It  has  been lastly contended by the learned  counsel for  the  appellant  that the Bar Council of India  was  not justified  in  enhancing  the punishment by  increasing  the period of suspension from practice from 5 years to 10 years. It  is submitted that the order enhancing the punishment  to the  prejudice  of  the  appellant   is  vitiated  by   non- compliance  with principles of natural justice and also  for having  been  passed  without   affording  the  appellant  a reasonable opportunity of being heard.

     Section  37  of  the Advocates Act, 1961  provides  as under:-  37.   Appeal  to Bar Council of India.  -  (1)  Any person  aggrieved by an order of the disciplinary  committee of  a  State  Bar  Council made under  Section  35  [or  the Advocate General of the State] 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 deems 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.}

     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 deems 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, the Bar Council  of India  may  pass an order of punishment which the State  Bar Council  could have passed.  While confirming the finding of guilt  the  Bar  Council of India may  vary  the  punishment awarded  by  the  Disciplinary Committee of  the  State  Bar Council  which  power  to vary would include  the  power  to enhance  the punishment.  An order enhancing the punishment, being  an  order prejudicially affecting the  advocate,  the proviso  mandates the exercise of such power to be performed only  after  giving the advocate reasonable  opportunity  of being heard.  The proviso embodies the rule of fair hearing. Accordingly,   and   consistently   with  the   well-settled principles  of natural justice, if the Bar Council of  India proposes  to  enhance the punishment it must put the  guilty advocate  specifically on notice that the punishment imposed on  him is proposed to be enhanced.  The advocate should  be given a reasonable opportunity of showing cause against such proposed enhancement and then he should be heard.

     In the case at hand we have perused the proceedings of

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the  Bar Council of India.  The complainant did not file any appeal  or  application  before  the Bar  Council  of  India praying  for enhancement of punishment.  The appeal filed by the  appellant was being heard and during the course of such hearing  it  appears that the Disciplinary Committee of  the Bar  Council  of India indicated to the appellants  counsel that  it  was inclined to enhance the punishment.   This  is reflected  by  the following passage occurring in the  order under  appeal:-  While hearing the matter  finally  parties were also heard as to the enhancement of sentence.

     The  appellant himself was not present on the date  of hearing.   He had prayed for an adjournment on the ground of his  sickness  which  was  refused.   The  counsel  for  the appellant was heard in appeal.  It would have been better if the  Bar Council of India having heard the appeal would have first placed its opinion on record that the findings arrived at by the State Bar Council against the appellant were being upheld  by it.  Then the appellant should have been issued a reasonable  notice  calling upon him to show cause  why  the punishment imposed by the State Bar Council be not enhanced. After  giving him an opportunity of filing a reply and  then hearing  him  the Bar Council could have for reasons  to  be placed on record, enhanced the punishment.  Nothing such was done.   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 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 of the Act 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.

     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.

     The  Bar Council of India, by its order under  appeal, directed  notices  to be issued to Shri Rajesh Jain  &  Shri Anil   Sharma,  Advocates,   respectively,  for   initiating proceedings  for professional misconduct and for enhancement of punishment.  During the course of hearing we had enquired from  the learned counsel for the parties as to what was the status  of  such  proceedings.   We   were  told  that   the proceedings  were  lying where they were presumably  because the  records of the State Bar Council and the Bar Council of India  were  requisitioned here.  The records shall be  sent back  and  the proceedings, directed to be initiated,  shall now  be  commenced  without any further loss of  time.   We, however,  express  no opinion regarding that aspect  of  the matter at this stage.

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     .   .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .   . .  .  .CJI.

     .   .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .   . .  .  .  .  .J.  ( R.C.  Lahoti )

     .   .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .   . .  .  .  .  .J.  ( K.G.  Balakrishnan )

     New Delhi;  December 5, 2000.

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