In The Matter Of vs Unknown

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 232/1954

Decision Date: 23 January, 1963

Coram: B.P. Sinha, J.C. Shah, K.N. Wanchoo, M. Hidayatullah, P.B. Gajendragadkar

In the matter of P. An Advocate versus an unidentified respondent, the Supreme Court of India rendered its judgment on 23 January 1963. The judgment was delivered by Justice Gajendragadkar, who was a member of a bench that also included Justices B. P. Sinha, J. C. Shah, K. N. Wanchoo, and M. Hidayatullah. The Advocate, who was an advocate‑on‑record of this Court, was engaged to represent the Board of Trustees of the Dakhina Parshwa Nath of Puri through its Executive Officer, who was respondent No. 2(b) in Civil Appeal No. 232/1954. Acting in that capacity, the Advocate entered his appearance on 9 November 1957. The appeal was heard on 2 May and again on 6 May 1958, and by a judgment pronounced on 20 May 1958, the appeal was dismissed with costs awarded in favour of respondent No. 2(b). For the hearing, the Advocate briefed a senior lawyer, identified in the record as Mr. J., to lead the case. The client paid the Advocate a fee of Rs 500 on the eve of the hearing, and directly paid the senior lawyer a sum of Rs 1,000. Under Order XL, rule 12 of the Supreme Court Rules, the Advocate was required to file the bill of costs and supporting vouchers within six weeks from the date of judgment. That six‑week period elapsed during the Court’s summer vacation. The Court resumed its term on 4 August 1958. After the judgment was delivered, the Advocate wrote to his client on 20 May 1958, informing him of the result of the appeal and advising that the bill of costs needed to be filed. He followed up with a second letter dated 28 June 1958, requesting Rs 60 to cover the expenses necessary for presenting the bill of costs. The client transmitted the requested amount on 26 July 1958 at Puri, and the Advocate issued a receipt for that payment.

Despite receiving the Rs 60, the Advocate took no further action until approximately 9 January 1959, when he inspected the Court’s records in order to prepare a draft bill of costs. He subsequently prepared the bill and presented it before the Court on 19 May 1959. Because the filing occurred after the deadline prescribed by Order XL, rule 12, the Court’s Office returned the bill to the Advocate. In normal practice, the Advocate should have filed an application seeking condonation of the delay, but he made no such application. Nevertheless, on 18 May 1960 the Advocate requested and received from his client an additional sum of Rs 200. At the time the Advocate was engaged, the Executive Officer of respondent No. 2(b) was Mr. Banamdar; later, Mr. Misra succeeded to that office and also paid the Advocate Rs 200, for which a receipt was recorded. It is not clear why the Advocate sought this additional amount. During this period the client wrote to the Advocate inquiring about the status of the bill of costs but received no response. When Mr. Misra realized that the Advocate was not proceeding with the bill of costs or obtaining the relevant orders, he gave notice to the Advocate on 9 January 1961, terminating the Advocate’s engagement. On 12 January 1961 Mr. Misra also applied to the Court for cancellation of the Advocate’s vakalat‑nama and for condonation of the delay in filing the bill of costs. The Advocate later agreed on 12 March 1961 that the client could engage another lawyer, Mr. Verma. The applications for cancellation of the vakalat‑nama and for condonation of the delay were listed before the learned Judge in Chambers and were subsequently adjourned on several occasions.

The payment of two hundred rupees was made to the Advocate by Mr Misra, and a receipt confirming this payment was also executed. The Court found it puzzling why the Advocate requested this sum from his client. During the interval, the client wrote to the Advocate seeking information regarding the bill of costs, but the Advocate failed to respond to these inquiries. When Mr Misra became aware that the Advocate was not taking any steps to present the bill of costs or to obtain the necessary orders, he served a notice to the Advocate on 9 January 1961 terminating the Advocate’s engagement. Subsequently, on 12 January 1961, Mr Misra filed an application before this Court requesting the cancellation of the Advocate’s Vakalat and also seeking condonation of the delay in filing the bill of costs. On 12 March 1961, the Advocate consented that his client could retain Mr Verma to act on the matter. The client’s applications for cancelling the Advocate’s Vakalat and for condoning the filing delay were then listed before the learned Judge in Chambers. These matters were repeatedly adjourned to allow the Advocate an opportunity to appear before the Chamber Judge. Ultimately, on 9 January 1962, the learned Judge granted condonation of the delay in presenting the bill of costs, while expressly reserving the judgment‑debtor’s right to plead that execution of the bill is barred by limitation. The Judge further ordered that the case papers be forwarded to the Honorable Chief Justice for appropriate action against the Advocate for the gross negligence exhibited in conducting the proceedings. Additionally, the Advocate was instructed to deliver all case papers to Mr Verma.

Following the forward of the papers to the Chief Justice, the Chief Justice constituted a Tribunal comprising three members of the Bar pursuant to Order IV‑A rule 18 to investigate the Advocate’s conduct. The Tribunal conducted a formal enquiry and later submitted its report. The principal question before the Tribunal was whether the Advocate had acted with gross negligence in the taxation of his client’s costs in the appeal, and if such conduct constituted professional misconduct or other misconduct as defined by Order IV of the Rules. The Tribunal’s report concluded that the Advocate was liable on both counts. It held that the Advocate’s conduct amounted to professional misconduct as well as other misconduct within the meaning of the said Order. Upon receipt of this report, the matter was placed before this Court for final disposal under Order IV‑A rule 21 of the Rules. The issues for determination are whether the Tribunal’s finding that the Advocate’s conduct constitutes professional and other misconduct is correct, and, if so, what penalty should be imposed upon the Advocate.

The Court considered the question of what penalty should be imposed on the Advocate. It examined the material facts that the Tribunal was required to evaluate, noting that those facts were limited in scope. The Court observed that the Advocate had filed the bill of costs dated 19 May 1959 well after the period prescribed by Order XL rule 12, which mandates that a bill of costs and accompanying vouchers be lodged within six weeks of the judgment date. The Court stated that the Advocate was fully aware of this statutory requirement. Moreover, the Court found that no instruction from the client or any additional document was necessary for the filing of the bill of costs and vouchers; the Advocate could have prepared and submitted them promptly if he had maintained proper accounts. The Court further noted that the bill of costs in this matter represented the total expenses incurred by the respondent before this Court, and that accurate bookkeeping on the part of the Advocate would have enabled a timely filing. The Court also recorded that the senior counsel engaged by the Advocate had received a direct fee of Rs 1000 from the client, a practice that the Court described as inconsistent with the customary professional etiquette expected of senior counsel. While the Court expressed a hope that this departure from etiquette was an isolated incident, it warned that allowing senior counsel to receive direct payments from clients would undermine the established system of Advocates‑on‑Record and hinder the development of a strong junior Bar composed of Advocates‑on‑Record and junior Advocates who primarily plead. Nevertheless, the Court clarified that the Advocate could have obtained a receipt from the senior counsel without any difficulty, and that there was no suggestion that the delay in filing the bill of costs was caused by an inability to secure such a receipt. In fact, the senior counsel had already forwarded a receipt to his client, and the Court was convinced that, had the Advocate requested an additional receipt, the senior counsel would have provided it immediately. Consequently, the Court concluded that the delay in filing the bill of costs and vouchers was entirely within the Advocate’s knowledge and control, and that such a lapse could not be excused.

The Court emphasized that Advocates‑on‑Record owe their clients a duty to act with diligence, and that no justification exists for postponing the filing of bills of costs and vouchers required under Order XL rule 12. The Court further pointed out that the client had written to the Advocate on several occasions, seeking information about the status of the bill of costs. Four such letters from the client to the Advocate were produced before the Tribunal as evidence. When questioned, the Advocate explained that he had responded to these letters by sending postcards, or by providing an oral explanation when he happened to meet the client. The Tribunal was not satisfied with this explanation, viewing the Advocate’s failure to send formal written replies as indicative that the Advocate was aware of his own default and had no substantive answer to the client’s inquiries. The Court noted this conduct as part of the overall assessment of the Advocate’s professional negligence.

At times the advocate explained the situation orally to the client when they met personally, but he did not send any written replies to the client’s written queries. The Tribunal found this conduct unconvincing and concluded that the advocate’s failure to answer in writing indicated his awareness of fault and his inability to provide a satisfactory response. After the appeal was decided, the client gave the advocate a payment of Rs. 60, apparently to enable him to file the bill of costs. The Tribunal observed that this sum was more than sufficient under the applicable rules, and therefore the advocate could not justify his delay by claiming that the client had not provided enough funds for the required expenses. The advocate also made a weak attempt to justify the tardiness by alleging that he had not received assistance from the High Court lawyer concerning printing charges. Evidence showed that the advocate wrote a letter dated 20 May 1958 requesting information about the printing expenses incurred in preparing the paper books for the appeal. The Tribunal considered this argument meaningless because the taxation of costs in this Court was unrelated to the expenses the parties incurred in preparing the record in the High Court. Moreover, concerning vouchers, the only voucher the advocate was required to file was the one from the senior counsel confirming receipt of Rs. 1,000 in fees. Consequently, the Tribunal determined that the advocate was responsible for a gross delay in filing both the bill of costs and the necessary voucher as mandated by the relevant rule.

The Tribunal further noted that the learned Chamber Judge had agreed to condone the delay after the advocate’s separate application was supported by Mr. Verma, but this act did not lessen the advocate’s default in failing to file the bill of costs on time. Additionally, the condonation was granted without prejudice to the judgment‑debtor’s right to argue that execution was barred by the limitation law. If such a limitation plea were raised and allowed, the respondent could lose a substantial amount exceeding Rs. 2,000. Even if the limitation plea were not raised, or were raised and rejected, the respondent might still recover costs from the appellant because the Chamber Judge acted sympathetically and chose not to penalise the party for the advocate’s failure. In light of these findings, the Tribunal had to determine whether the advocate’s conduct warranted a finding of professional misconduct and other related consequences.

In this case the Tribunal concluded that the Advocate had committed both professional misconduct and additional misconduct. The Tribunal observed that a simple mistake or an error in judgment by a lawyer did not, by itself, rise to the level of professional misconduct. It noted that errors of judgment were inevitable in human affairs and that a mere allegation of negligence did not automatically render an Advocate liable for disciplinary action, referring to the authorities In re A Vakil (1925) I.L.R. 49 Mad. 523 and the matter of an Advocate of Agra (I.L.R. 1940 All. 386). However, the Tribunal explained that a different assessment was required where the Advocate’s negligence was gross. Before imposing a finding of misconduct, courts were described as being inclined to determine whether such gross negligence involved moral turpitude or delinquency. The Tribunal emphasized that the terms “moral turpitude or delinquency” should not be given a narrow construction; any conduct proved to be contrary to honesty, opposed to good morals, or unethical could safely be said to involve moral turpitude. A willful and callous disregard for the client’s interests, the Tribunal held, could properly be characterised as conduct unbecoming of an Advocate. It further observed that the legal profession was an honourable one, occupying a place of pride among the liberal professions of the country, and that any behaviour rendering a person unworthy of membership in the noble fraternity of lawyers, or unfit to safeguard a litigant’s interests, must be regarded as conduct involving moral turpitude. The Tribunal recalled that Advocates‑on‑record, like all members of the Bar, were officers of the Court, and that the purity of the administration of justice depended as much on the integrity of judges as on the honesty of the Bar. Consequently, the expression “moral turpitude or delinquency” was not to be interpreted in an unduly narrow or restricted sense. The Tribunal also noted that the relevant provisions of Rule IV‑A addressed not only professional misconduct but also other misconduct. An Advocate could attract disciplinary orders for conduct that, while not directly related to professional duties, was of such dishonourable or infamous character that it warranted punishment equivalent to that for professional misconduct. As an illustration, the Tribunal mentioned that a conviction of an Advocate for a criminal offence involving moral turpitude, even if unrelated to his legal work, could constitute such other misconduct. Therefore, in assessing the Advocate before it, the Tribunal determined that a broad view of moral delinquency was appropriate, focusing on whether the Advocate’s conduct had rendered him unworthy of belonging to the legal profession.

The judgment observed that it would be inappropriate to adopt an overly narrow interpretation of the notion of moral delinquency or turpitude and that the proper focus should be the broader question of whether the conduct established in the present case had rendered the advocate unworthy of membership in the legal profession. It cited a historical definition of professional misconduct offered by Lopes L.J. in the 1894 case Allinson v. General Council of Medical Education and Registration, [1894] 1 Q.B. 750. In that decision Lopes L.J. explained that the Master of the Rolls, with assistance from his brother Davey, had formulated a definition stating: “If it is shown that a medical man, 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 the General Medical Council to say that he has been guilty of ‘infamous conduct in a professional respect’.” The judgment noted that this definition was later applied to a solicitor in the case In re A Solicitor Ex parte the Law Society, [1912] 1 K.B. 302, where Mr. Justice Darling quoted the definition and added that the Law Society, like the General Medical Council, is well‑situated to determine what constitutes professional misconduct within its respective profession. The judgment expressed the view that the same observation could be applied with equal force to the Tribunal that had examined the present matter and issued its report. Further authority was drawn from the 1936 decision in the matter of An Advocate, I.L.R. 63 Cal. 867, where Mukerji, A.C.J., referred to observations of Page J.J. in the 1933 case in the matter of An Advocate, I.L.R. 12 Pan. 110, 113. There, the learned Chief Justice had stated that the test for striking an advocate off the roll should be whether the proven misconduct makes the advocate unworthy to remain a member of the honourable profession and unfit to be entrusted with the responsibilities of the role. Mukerji, A.C.J., added that he preferred to apply the two conditions disjunctively, so that satisfaction of either condition would meet the test. In other words, according to Mukerji, A.C.J., removal from the rolls may be warranted on the basis of either professional misconduct or other misconduct, and in either circumstance the advocate ceases to be entitled to belong to the legal profession. The learned judge also observed that this disjunctive approach provides a sound working rule in the majority of cases.

The Court observed that the principle would apply to every branch of the legal profession. It noted that the language employed in the relevant rules of O. IV‑A refers to “professional or other misconduct,” and that this formulation mirrors the provision contained in section 10(i) of the Indian Bar Council Act, 1926 (38 of 1926). Turning to the factual findings of the Tribunal, the Court found that the advocate had received a payment of Rs. 60 expressly for the purpose of filing the bill of costs within the prescribed time. The advocate’s delay in presenting the bill of costs was described as unreasonable to such an extent that the negligence involved must be characterised as gross. The justification offered by the advocate for the delay was deemed fantastical and false. The loss that would have been suffered by the client was estimated at approximately Rs. 2000, an amount that represented costs awarded by this Court when it dismissed the appeal filed against the client. During the period in question, the client repeatedly inquired about the status of the bill of costs; the Tribunal rejected the advocate’s explanation and held that, despite the reminders, the advocate failed to take any steps to file the bill of costs promptly. In addition, the advocate requested and received Rs. 200 from Mr. Misra, the successor of Mr. Banamdar, on 18 May 1960, a demand that the Tribunal observed to be wholly unjustified. Considering all of these circumstances, the Court concluded that it could not accept Mr. Sarjoo Prasad’s contention that the Tribunal was not justified in finding the advocate guilty of professional misconduct.

The next issue for the Court was to determine the appropriate order to make in the present case. While it recognised that findings of professional misconduct are uncommon before this Court, it held that when such allegations are proved to be true, it would be imprudent and inappropriate for the Court to adopt a lenient stance toward the advocate’s lapse. Members of the Bar owe a duty both to themselves and to the Courts to uphold the highest traditions of the profession, and any serious breach by a member must be dealt with severely. The Court emphasized that robust traditions within the Bar not only strengthen and enhance the reputation of the profession but also provide valuable and effective assistance to the Courts, thereby sustaining the absolute confidence and faith of the litigating public in the fairness of the administration of justice. It reminded that, ultimately, the true strength of the administration of justice rests upon the confidence of the public at large. We are, therefore,

The Court expressed reluctance to accept the request presented by counsel Sarjoo Prasad, who had asked that the Advocate merely receive a reprimand for his misconduct and that no additional orders be imposed against him. After a careful examination of all the material facts and the surrounding circumstances, the Court concluded that, for the sake of preserving the integrity of the legal profession, a more stringent measure was required. Accordingly, the Court ordered that the Advocate’s name be struck from the rolls of advocates for a period of five years. In addition, the Court directed that the Advocate be responsible for paying the costs incurred by the respondent in connection with the inquiry conducted before the Tribunal, as well as the costs of the hearing that took place before this Court. Before concluding its decision, the Court noted that both counsel Sarjoo Prasad and the learned Solicitor‑General had acknowledged that Part V of the Advocates Act, 1961 (Act 25 of 1961) had not yet been brought into force. Consequently, section 50(4) of that Act was not applicable to the present proceedings. This acknowledgment implied that the present matters had to be resolved by the Court under the provisions of the law that were in force at the time of the hearing.