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PETITIONER: MRS. R.D. BHATIA

       Vs.

RESPONDENT: SMT. RAJINDER KAUR & ORS.

DATE OF JUDGMENT:       10/09/1996

BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) AHMADI A.M. (CJ) BHARUCHA S.P. (J)

CITATION:  JT 1996 (8)     4

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Faizan Uddin, J. 1.   The appellant  who is  an advocate  has preferred  this appeal under  Section 38  of the  Advocates Act  against the order  dated   March  28,  1992  passed  by  the  Dispensary Committee of the Bar Council of India in BCI/TR Case No. 100 of 1990-  suspending the   appellant  on the roll of the Bar Council of  Maharashtra and  Goa for  a period  of two years with a  further direction  to pay sum of Rs. 1500/- as costs to the  complainant respondent  No. 1  herein in exercise of its powers  under Section 35 (3) (c) read with Section 38 as well as  Section 35 (B) of the Advocates Act, 1981, The said appellant was also filed the special Leave Petition referred to above against the order dated October 18, 1982 dismissing the review  petition filed by the appellant against the said order dated March 28, 1982. 2. This  appeal was heard and disposed of by us on March 21, 1996 by passing the following order :-      "We have  heard the learned counsel      for the  appellant as  well as  the      respondent-original complainant  at      some length.  For reasons  which we      will state  hereafter, we allow the      appeal and  set aside  the order of      the Bar  Council of  India  holding      the appellant guilty of misconduct.      In view  of  our  decision  to  set      aside the  view taken  by  the  bar      Council  of   India   against   the      appellant   the    Special    Leave      Petition which  arises out  of  the      rejection  to   review  application      does not survive. Both the  matters      will, therefore,  stand disposed of      accordingly, we  however,  make  no

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    order as to costs". We, therefore,  set out the following  reasons in support of our said order dated March 21, 1996. 3. Before  we proceed  to give  reasons   in support  of our order referred  to above  allowing the  appeal, it  would be appropriate to briefly narrate the facts. Smt. Rajinder Kaur the original complainant/respondent No. 1 herein  had instituted a money suit in the Bombay City Civil Court against  one Smt.  Virgillia D’Souza for recovery of a sum of  Rs. 10,000/-  due under  a  bill  of  exchange.  The respondent No. 1 was represented by Advocate Mr. mirchandani since deceased)  in the  said suit.  An ex-parte  decree was passed on  December 14, 1984 in favour of the respondent No. 1 and  against the  defendant Mrs.  Virgillia   Disouza. The appellant who  is enrolled  as  an  advocate  with  the  Bar Council of  Maharastra since  1981 and  mainly practicing in Co-operative  Courts  was  introduced  with  the  mother  of respondent No.  1 in  August, 1986  by  one  Mrs.  Despande, advocate. The  respondent No  1. along  with her  mother are said to  have met  the appellant  in the  City Civil  Court, Bombay when  the  appellant  was  require  to  identify  the respondent No.  1 in  the execution  proceedings of  the ex- parte decree  obtained on  December 11,  1984 in  which  the movables belonging  to Mrs.  D’Souza were  attached.   It is said that Mrs. D’Souza obtained the address of the appellant from the  Bailiff working  in the  Office   of the Sherif of Bombay,  approached   the  appellant  offering  to  pay  the decretal amount  by installments. According to the appellant a meeting  was held  in his  office on September 24, 1986 in the presence  of the  respondent No.  1 her  mother and said Mrs. D’Souza wherein the parties reached to an agreement for payment of  the decretal amount by installments and a sum of Rs. 500/-  was paid  towards  the  decretal  amount  to  the appellant. The appellant’s further case is that in pursuance of the  agreement to pay the decretal amount by installments the respondents  No. 1  requested the  Sherif of  Bombay  to remove the  Watchman from  the property  of Mrs. D’Souza but the attachment  may continued.  According to  the  appellant the receipt  of the  aforesaid sum  of Rs. 500 and a further sum of  Rs. 1,000/-  paid Mrs  D’Souza were  recorded in the execution proceedings  which were  signed by  the respondent No. 1  on being identified by the appellant. On November 27, 1986 a  further sum  of Rs.  1000 was  paid by  Mrs  D’Souza towards the  decretal amount, the receipt of which was again recorded in the execution proceedings. 4. Thereafter  Mrs. D’Souza  took out a Notice of Motion for setting aside  the ex-parte  decree obtained  against her by the respondent  No. 1  with the  allegations that no writ of summons was  served on  her in  the suit  in which  ex-parts decree was  passed and  that  the  appellant  had  committed extortion in  respect of the amount paid by her and referred to above.  According to  the appellant  it is  at this stage that she filed her Power and appeared for the respondent for the first  time on January 30, 1987 without charging any fee from the  respondent No.  1. According  to the appellant the respondent  No.1  herein  herself  had  filed  an  affidavit Annexure H-1  in reply  to the  Notice of Motion for setting aside the ex-parte decree controverting and refuting all the allegations made  against the  appellant. According  to  the appellant since  Mrs. D’ Souza made allegations against her, the appellant  thought it  fit to  withdraw herself from the proceedings after  April 30,  1997. She, therefore, filed an affidavit Annexure  - J  denying the allegations against her and orally requested the Court to permit her to withdraw her appearance from  the Court  in the  matter. According to the

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appellant one  Mr Ladiwale, Advocate tendered his appearance on behalf  of the respondent No. 1 without charging any fee, Mr. Ladiwala  appeared  and  also  filed  rejoinder  of  the respondent No.  1 duly  signed by  the  respondent  herself, Ultimately the  City Court  its order dated June 9, 1987 set aside the ex-parte decree passed on December 10, 1984 by the consent of  parties advocates. The appellant passed over the sum of  Rs. 3500/-  on August  16, 1987  to respondent No. 1 which was paid to her by Mrs. D’Souza as part payment of the decretal amount  against a  receipt for  the same.  The City Civil Court  by its  order dated  February 18, 1988 directed the respondent  No. 1  to refund  /deposit in  the court the said sum of Rs. 3500/- which was paid by Mrs D’Souza towards the ex-parte  which was  set aside. The respondent preferred an appeal  before  the  Bombay  High  Court  represented  by Advocate Shri  Ladiwala against  the order of the City Civil Court dated February 18, 1988 directing her to deposit a sum of Rs.  3500- in Court. The said appeal was converted into a revision and  the   same was  dismissed by the High Court on April 10,  1980. Thereafter  the respondent  No. 1 took time from the  City Civil  Court on  July 4,  1988 to  change her counsel Shri  Ladiwale and  on August  10,  1988  Mr.Munshi, Advocate is  said to  have appeared alongwith the respondent No. 1  for the  respondent No.  1 in  the City  Civil Court, Bombay on  which date the defendant Mrs. D’Souza was granted unconditional leave to defend the suit. 5. The  respondent No.  1 then  filed  a  complaint    under Section 88  of the Advocate Act (hereinafter the Act) before the Bar  Council of  Maharashtra  at  Bombay  alleging  that while conducting  her case  the appellant had committed acts of gross  professional misconduct by going hand in ‘with the defendant Mrs.  D’Souza from  behind the    curtain  and  in collusion with  and conspiracy of advocates Mr. Ladiwala and Mr. Munshi  by not  contesting the suit against Mrs. D’Souza diligently and properly with the intention to cause loss and harm to  respondent No.  1 herein.  As the  Bar  Council  of Maharashtra could  not dispose of the complaint filed by the respondent No.  1 against  the appellant  within one year as required by  Section  36  (B)  of  the  Act,  the  same  was transferred to  the Bar Council of India and this is how the Bar Council  of India  was seized  of the  matter and placed before  its  Disciplinary  Committee  for  disposal  of  the complaint filed by the respondent No. 1; Smt. Rajender Kaur. The said Committee framed the following issues :-      (1)  Whether   on  16.2.1987,   the      respondent appeared in the Court on      behalf of the complainant and later      on  got appointed Shri Ladiwala and      Shri Munshi, Advocates on behalf of      complainant without her knowledge ?      (2) Whether  Shri Ladiwala and Shri      Munshi     advocates     on     the      instructions and  in collusion with      the  respondent  did  not  properly      contest the case of the complainant      in the  High Court of Judicature at      Bombay ?      (3) Whether the respondent colluded      with the defendant in the said case      in either contesting the case or by      getting appointed Shri Ladiwala and      Shri Munshi ?      (a)  Whether   the  respondent  has      committed any  act of  professional      misconduct ? If so, its effect ?

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By  the  consent  of  parties  the  complaint  made  by  the complainant respondent  No. 1  and   the  written  statement filed by  the appellant  were respectively  treated as their evidence-in-chief  and  each  party  was  allowed  to  cross examine its  opponent. Thus,  there is  solitary evidence of complainant respondent  No. 1  and the appellant in addition to certain  documents on  the basis  of which  the Committee proceeded to  record its  findings on the issues referred to above. After  analysing the  evidence and  the documents  on record the  Committee took the view that appellant Advocates was  guilty   of  professional  misconduct  and,  therefore, answered issues  No. 1  and 3  in  affirmative  against  the appellant and  in favour of the complainant respondent No.1. But as  regards  issue  No.  2  the  Committee  answered  in negative for  the reasons  that Advocates  Shri Ladiwala and Shri Munshi were not before the Committee. On these findings the Committee  took the  view that  the appellant  committed professional misconduct  and, therefore  passed the impugned order dated  March 28, 1992 suspending the appellant for two years and  pay a  sum of  rs. 1,000/-  as cost.  The  review preferred by  appellant against  the  said  order  was  also dismissed by order dated October 18, 1992 against which this appeal and  the Special  Leave Petition as referred to above have been directed. 4. Before  we embark  upon a scrutiny to examine correctness of the   impugned  judgment, it  may be  stated that it is a cardinal principals  of law  that in  cases of misconduct or allegations of  any guilt  against any  person involving his indictment or  infliction of punishment the evidence adduced should be  of such a character and intrinsic value which may not admit  any element  of a  reasonable doubt about alleged misconduct or  guilt. In  other words the evidence should be beyond all  reasonable  doubt.  That  being  so,  since  the provisions of  Section 85  of the  Advocates Act  entail the punishment including  removal of  the name  of the  Advocate against whom  the allegation of misconduct is made, from the rolls of  the Bar Council and suspension from practicing for such period as may deemed fit by the Disciplinary Committee, the evidence  adduced should  be of   such a character which may  be  beyond  all  reasonable  doubt  about  the  alleged professional misconduct.  We shall,  therefore, examine  the evidence and  the material on record to see whether the same establishes  the   allegation  of   misconduct  against  the appellant beyond all the reasonable doubt. 7. First of all we shall scrutinize the evidence in relation to issue  No.1 as  framed by  the Disciplinary Committee and its finding  in the  affirmative. The allegation made by the complainant respondent  against the  appellant is that in or about the month of September, 1986 she engaged the appellant as her  counsel to  represent her in the execution case when she  was  introduced  to  the  appellant  by  somebody.  The respondent has  alleged that  she had signed the Vakalatnama in favour  of the  appellant for  presenting it in the court but it was not presented by the appellant till 20.1.1987 and on the contrary got appointed Shri Ladiwala and Shri Munshi. Advocates  on  her  behalf  without  the  knowledge  of  the respondent No.  1. It has been alleged in the complaint that the appellant collected a sum of Rs. 500/- on 24.4.1986, Rs. 1500/- on  7.10.1986 and  a further  sum of  Rs.  1500/-  on 10.11.1986 (in  all Rs.  3500/-) towards the part payment of the decretal  amount from  the defendant  Mrs. D. Souza, but the appellant  did not  pay the  same to  her inspite of her insistence to  pay the  said amount  to her. The complainant respondent No.  1 has  further alleged that the appellant in collusion and  conspiracy with  two advocates,  namely, Shri

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Ladiwala and  Shri Munshi played a dirty game to get the ex- parte decree  set aside  by malpractice  by remaining behind the curtain with an intent to cause loss and harm to her and to the  advantage of defendant Mrs. D’Souza by illegally and wrongfully consenting  to  set  aside  the  ex-parte  decree without her knowledge and consent. In this connection we may first  of  all  refer    to  affidavit  Annexure  H-1  dated 16.2.1987 filed  by  the  complainant-respondent  No.1  Smt. Rajinder Kaur herself in reply to the Notice of Motion taken out by  the defendant Mrs. Virgillia D’Souza. In paragraph 8 of the  affidavit referred to above the respondent No. 1 has refuted the  allegations made  against the appellant and has made categorical  statement  that  the  appellant  was  only acting mediator to settle dispute between the respondent No. 1  as  plaintiff  and  Mrs.  D’Souza  as  defendant  and  in pursuance of  the settlement the total payment of Rs. 3500/- was made  towards the decretal amount. In the same paragraph 5 the  respondent No. 1 Smt. Rajinder Kaur has categorically stated that  the appellant Mrs. Bhatia was not her advocates at that  point of time and  that the appellant had filed her appearance in  the City  Civil Court only on 29.1.1997. This statement  clearly   falsifies   the   allegation   of   the complainant-respondent  No.  1  that  she  had  engaged  the appellant as  her counsel in the month of September 1988 but the appellant  presented the  Vakalatnama on  30.1.1987. The Committee has  very lightly brushed aside the aforementioned statement of  respondent No.  1 in  her own affidavit on the ground that  this affidavit  was filed  in  English  by  the appellant without  reading over  and explaining the contents thereof to  the respondent  No. 1 in any language other than English. The  Committee thus  accepted the said statement of the respondent  No. 1  as true,  contrary to the Committee’s own  observations  with  regard  to  the  demeanour  of  the complainant respondent  No. 1 in paragraph 7 of the impugned order wherein  the Committee has made following observations :-      "Though the evidence was given by C      in Hindi,  English  translation  of      which   was    recorded   by   this      committee,  we   have  marked   the      demeanour of  "C’ and   found  to a      certain   extent    c   understands      English and  even speak  some words      in English at least to get give the      sense respectively,  though she may      not  able   to  have   and  give  a      complete picture in English."                     (emphasis supplied). A  reading    of  the  aforementioned  observations  of  the Committee go to show that the complaint-respondent No. 1 not only could  read and  understand English to a certain extent but she could speak as well. That being so the Committee was not right  in accepting the statement of respondent that the contents or her affidavit dated 16.2.1987 were not read over and explained  to her.  This is patently incorrect statement and appears to be an after thought. 8. As  regards the  allegation of  non-payment of Rs. 3500/- which was  received by  the appellant  from  defendant  Mrs. D’Souza towards  the part  payment decretal  amount  we  may refer to  another   affidavit of  the complainant respondent No. 1 dated 6.11.1987 filed in the City Civil Court, Bombay. In paragraph  5 of  the said  affidavit the respondent No. 1 has categorically  stated that the said amount of Rs. 3500/- was received  by her  from the appellant who at the time was acting   as a  mediator to  settle the claim. In addition to

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this the    aforesaid  payment  of  Rs.  3500/-  is  further established from  the receipt  Annexure ’L’ dated 29.08.1987 executed by  the respondent  No. 1 acknowledging the payment of Rs.  3500/- to  her by   the appellant which she received from Mrs.  Virgillia D’Souza  towards the  settlement of the case. Thus  the allegation regarding the non-payment of  the said amount is totally fails. 9. This  brings us  to  the  allegation  of  the  plaintiff- respondent No.  1 that  the above advocate Shri Ladiwala and Shri Munshi  were appointed  by the  appellant  to represent the respondent  No. 1  without her knowledge and consent who is collusion  and conspiracy  with  the  appellant  remained behind the  curtain and  wrongfully agreed  to set aside the ex-parte decree in order to cause loss to the respondent No. 1 and  undue benefit  to the defendant Mrs. D’Souza. We find that this  allegation too  is without  any foundation or any material on  record.  The  material  on  record  presents  a contrary picture.  It may  pointed out   that though the ex- parte decree  in favour  of the  respondent was set aside by the City Civil Court, Bombay, with the  consent of advocates for parties,  by order  8.8.1987 but  strangely  enough  the plaintiff-respondent neither  made any  application  to  the City Civil  Court objecting to the  setting aside of the ex- parte decree  by consent of counsel for parties nor made any allegation     of  maladies   against  any  of  his  counsel representing her  in the  said Court nor any appeal/revision was filed  against the  said order  agitating that  the said order setting aside e ex-parte decree was obtained illegally and without  her consent  by the  counsel representing her . Further it  may be pointed out that though the allegation of respondent No.  1 was  that the  advocate Shri  Ladiwala and Shri  Munshi   in  collusion  with  the  appellant  and  the defendant Mrs.  D’Souza got  the said  ex-parte  decree  set aside but  strangely enough  the respondent  No. 1 appointed Shri Ladiwala,  Advocate to  represent her in the High Court of Bombay  also  in  the  appeal  against  the  order  dated 18.02.1988 passed  by the  City Civil  Court  directing  the respondent No. 1 to deposit/ refund the amount of Rs. 3500/- which is said to have been paid to her by the defendant Mrs. D’Souza as  the ex-parte  decree was  set  aside.  The  said Vakalatnama  duly  signed  by  the  respondent  No.  1  Smt. Rajinder Kaur  appointing Shri  Ladiwala as  her advocate to represent to  her in  the High  Court is to be found at page 179 of  this appeal record. The said appeal was dismissed by the High  Court by  order dated  19.04.1988  in  which  Shri Ladiwala  has   been  described  as  the  advocate  for  the respondent No.  1 according to the respondent No. 1 advocate Shri Ladiwala  had acted  in collusion  with other advocates and the  opposite party  against the  interest of respondent No. 1  in getting  the ex-parte  decree set aside why was he agin chosen  to represent the respondent No. 1 in the appeal filed before the High court. . This simply goes to show that the allegation  of misconduct and collusion made against the appellant are  only after  thought for  which there  was  no basis at  all. There  is further  material on record to show that the  advocates  Shri  Ladiwala  and  Shri  Munshi  were appearing on  her behalf  in the City Civil Court on various dates but  the respondent  No. 1  at no  stage  objected  to their appearance  on her  behalf either  before or after the setting aside  ex-parte decree.  On a  close scrutiny of the evidence and   the  material on record it can hardly be said that the  respondent No.  1  has  been  able  to  prove  the allegations beyond all reasonable doubt. The evidence of the complainant herself  is very  shaky and  unacceptable. It is unfortunate that  all these  aspects of  the matter have not

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been properly  appreciated by  the Disciplinary Committee of the Bar Council of India which has resulted into miscarriage of justice.  It was for these reasons that after hearing the learned counsel  for parties  on  March  21,  1996  we  were convinced that the impugned order could not be sustained for the reasons that we have given herein before. The appeal and the Special  Leave Petition already stand disposed of by our order dated  March 21, 1996 and we support the same with the aforementioned reasons.