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PETITIONER: HARISH CHANDER SINGH

       Vs.

RESPONDENT: S.N. TRIPATHI

DATE OF JUDGMENT:       27/01/1997

BENCH: B.P. JEEVAN REDDY, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                       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

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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

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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

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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

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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.