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professional misconduct of the advocate=1. (a) Whether the Respondent-Advocate purchased the property from Jitendra Singh Bhakna as described at Page No. 5 in Sale Deed dated 3.11.99 of which the Respondent Advocate who was attesting witness? (b) Whether the Respondent Advocate deliberately filed suit for eviction in the name of Jitendra Singh Bhakna against the complainant although the respondent was the owner thereof as mentioned in the sale deed dated 3.11.99? (c) Whether the respondent advocate has been guilty of professional mis-conduct? 2. Result ? = who having knowledge purchased a disputed property with ulterior motive=The punishment for professional misconduct has twin objectives – deterrence and correction. Having

English: Shiv Statue at Kachnar City Jabalpur,...

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1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 2293 OF 2005

DHANRAJ SINGH CHOUDAHRY Appellant (s)

VERSUS

NATHULAL VISHWAKARMA Respondent(s)

WITH

Civil Appeal NO. 4484 of 2005

J U D G M E N T

R.M. Lodha, J.

These two Appeals have been preferred by

Advocate Dhanraj Singh Choudhary (for short, ‘advocate

appellant’) being dissatisfied with the two orders

dated October 31, 2004 passed by the Disciplinary

Committee of the Bar Council of India. By the principal

order, the advocate appellant has been suspended from

practice for a period of one year from the date of

communication of the order.
2. On the complaint made by the respondent-Nathulal

Vishwakarma against the advocate appellant to the Bar
2

Council of Madhya Pradesh, Jabalpur, the matter was

referred to the Disciplinary Committee of the State Bar

Council. The allegation of professional mis-conduct

against the advocate appellant is that in the sale deed

dated November 3, 1999 executed by Jitender Singh Bakna

in favour of Smt. Suchi Gupta concerning sale of

property House No. 423 situate in Nursing Ward,

Jabalpur, which was attested by the advocate appellant,

it has been stated that on the Western side of the

saleable property one shop adjacent to Sahara lounge

presently in occupation of the complainant has already

been transferred by the vendor to the advocate

appellant by giving him the ownership right, although

vendor’s father Sardar Desh Singh Bakna had entered

into an agreement to sell the suit property to the

complainant on November 15, 1991 and the vendor’s

father has already received an amount of Rs. 2,00,000/-

towards the sale consideration. The complainant alleged

that he had already filed a suit for specific

performance of the agreement dated November 15, 1991

which was pending and was within the knowledge of the

advocate appellant. As a matter of fact, the advocate

appellant had instituted a suit on behalf of Sardar
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Desh Singh Bakna against the complainant for eviction

of the said shop showing the complainant as a tenant of

Sardar Desh Singh Bakna.

3.On notice, the advocate appellant filed reply to the

complaint and denied the allegations made against him.

In his reply, the advocate appellant explained the

circumstances in which the sale deed dated November 3,

1999 was executed. He expressed his ignorance about the

statement made in the sale deed dated November 3, 1999

regarding sale of shop in occupation of the complainant

to the advocate appellant by the vendor.

4.On the pleadings of the parties, the Disciplinary

Committee of the State Bar Council framed the

following issues :-

1. (a) Whether the Respondent-Advocate
purchased the property from Jitendra
Singh Bhakna as described at Page No. 5
in Sale Deed dated 3.11.99 of which the
Respondent Advocate who was attesting
witness?
(b) Whether the Respondent Advocate
deliberately filed suit for eviction in
the name of Jitendra Singh Bhakna
against the complainant although the
respondent was the owner thereof as
mentioned in the sale deed dated
3.11.99?
(c) Whether the respondent advocate has
been guilty of professional mis-conduct?

2. Result ?
4
5. The complainant and the advocate appellant

examined themselves and also tendered documents in

support of their respective case. The Disciplinary

Committee of the State Bar Council, after hearing the

parties and on consideration of the evidence tendered

by them, recorded its finding against the advocate

appellant on the above issues and held the advocate

appellant guilty of professional mis-conduct. Having

adjudged the advocate appellant guilty of professional

mis-conduct, the Disciplinary Committee, State Bar

Council, Madhya Pradesh, awarded punishment of

reprimand to the advocate appellant vide its order

dated April 22, 2002.

6. Not satisfied with the order dated April 22,

2002 passed by the Disciplinary Committee, State Bar

Council, Madhya Pradesh, the complainant preferred

appeal under Section 37 of the Advocates Act, 1961

(for short, ‘1961 Act’) to the Bar Council of India.

The Disciplinary Committee of the Bar Council of India

issued notice to the advocate appellant on October 5,

2004 intimating him that the matter has been kept on

October 30, 2004. On receipt of the notice, the

advocate appellant appeared before the Disciplinary
5

Committee of the Bar Council of India, which heard the

appeal preferred by the complainant for enhancement of

the punishment on October 30, 2004. After the

conclusion of the hearing of that appeal, an

application was filed by the advocate appellant

seeking permission to file cross-appeal and the cross-

appeal was tendered.

7. The Disciplinary Committee of the Bar Council

of India, vide its judgment dated October 31, 2004,

allowed the appeal of the complainant; modified the

punishment of reprimand awarded by the Disciplinary

Committee of the State Bar Council and ordered his

suspension from practice for a period of one year from

the date of communication of the order. By a separate

order passed on that day, i.e., October 31, 2004, the

cross-appeal preferred by the advocate appellant was

dismissed.
8. Civil Appeal No. 2293 of 2005 preferred by the

advocate appellant arises from the order of the

Disciplinary Committee of the Bar Council of India

whereby complainant’s appeal for enhancement of

punishment has been allowed, while Civil Appeal No.

4484 of 2005 has been preferred by the advocate
6

appellant aggrieved by the order dismissing his cross-

appeal as not maintainable.

9. The order dated October 31, 2004, whereby the

advocate appellant’s cross-appeal has been dismissed

by the Disciplinary Committee of the Bar Council of

India, reads as follows :-

“After the conclusion of hearing of
Disciplinary Appeal No. 55 of 2002, an
application has been filed by the respondent-
advocate seeking permission to file a cross-
appeal in the above noted appeal. Under
Section 37 of the Advocates Act an appeal
should be filed within period of 60 days from
the date of communication of the order passed
by the Disciplinary Committee of the State
Bar Council. There is however no provision
for filing application seeking permission to
file any appeal or cross-appeal. Therefore,
the application filed by the respondent-
advocate seeking permission to file cross
appeal cannot be entertained and as such the
same is liable to be rejected. The
application filed by the respondent-advocate
is accordingly dismissed as not being
maintainable.”
10. We find no legal infirmity in the order passed

by the Disciplinary Committee of the Bar Council of

India in not entertaining the cross-appeal preferred

by the advocate appellant.

11.Section 37(1) of the 1961 Act provides for a remedy

of an appeal to any person aggrieved by an order
7

of the disciplinary committee of a State Bar Council

under Section 35 to prefer an appeal to the Bar

Council of India within 60 days of the date of the

communication of the order to him. Proviso that

follows sub-section (2) of Section 37 provides that

the disciplinary committee of the Bar Council of India

shall not vary the order of the disciplinary committee

of the State Bar Council affecting the person

prejudicially without giving him reasonable

opportunity of being heard. In the cross-appeal

preferred by the advocate appellant, it is stated that

being aggrieved by the order dated April 22, 2002

passed by the Disciplinary Committee of the State Bar

Council, Madhya Pradesh, the cross-appeal is being

preferred by the respondent therein (advocate

appellant herein). As a matter of law, Section 37 of

the 1961 Act does not contemplate cross-appeal. This

position is not disputed by Mr. S.B. Sanyal, learned

senior counsel for the advocate appellant. He would,

however, submit that the advocate appellant preferred

cross-objections (titled cross-appeal) within 30 days

of the receipt of the notice of the appeal preferred

by the complainant and that is permissible under

Order 41 Rule 22 of the Code
8

of Civil Procedure, 1908 (for short, ‘the Code’) which

is applicable to the proceedings before the

Disciplinary Committee of the Bar Council of India.

12. We do not agree with the submission of Mr.

S.B. Sanyal, learned senior counsel for the advocate

appellant. The Code has not been made applicable as

it is to the proceedings before the disciplinary

committee. Section 42 of the 1961 Act makes

applicable provisions of the Code in respect of

matters contained therein while providing that the

disciplinary committee of a Bar Council shall have the

same powers as are vested in a civil court. The

matters contained in Section 42 do not refer to the

appeals. Thus, the provisions contained in Order 41

of the Code, including Rule 22 thereof, have no

applicability to the proceedings before a Disciplinary

Committee.

13. Appeal is a creature of statute. The extent

and scope of an appeal is governed by statutory

provisions. Section 37 of the 1961 Act is the

statutory provision for an appeal to the Bar Council

of India from the order of the disciplinary committee

of the State Bar Council. Section 39 of the 1961

Act, however, makes Sections 5 and 12 of the
9

Limitation Act, 1963 applicable to the appeals

preferred under Section 37 and Section 38 of the 1961

Act. There is no provision like Order 41 Rule 22 of

the Code in the 1961 Act. The cross-objections titled

‘cross-appeal’ preferred by the advocate appellant

being wholly mis-conceived have rightly been held to

be not maintainable by the Disciplinary Committee of

the Bar Council of India.

14. There may not be any difficulty in treating

the ‘cross-appeal’ preferred by the advocate

appellant as an appeal under Section 37 of the 1961

Act, but then such appeal is hopelessly time barred.

The order was passed by the Disciplinary Committee of

the State Bar Council on April 22, 2002. The advocate

appellant presented his appeal (titled ‘cross-appeal’)

before the Disciplinary Committee of the Bar Council

of India on October 30, 2004, i.e., after more than

two years. No application for condonation of delay has

been made. In this view of the matter also the cross-

appeal preferred by the advocate appellant was liable

to be dismissed and has rightly been dismissed.

15. The Disciplinary Committee of the State Bar

Council has considered the entire material, including

the evidence of the complainant and the advocate
10

appellant and arrived at the finding that the advocate

appellant was guilty of professional mis-conduct for

having attested the sale deed dated November 3, 1999

containing a statement that the shop on the western

side of the saleable property in occupation of the

complainant has already been transferred to the

advocate appellant by giving him ownership right. The

attestation of the sale deed containing the above

statement, which was apparently false to the knowledge

of advocate appellant, amounted to professional mis-

conduct. The vendor-Jitender Singh Bakna and his

father Sardar Desh Singh Bakna were the clients of the

advocate appellant. As a matter of fact, the advocate

appellant had filed a suit on behalf of the vendor

against the complainant seeking his eviction from the

premises for which the statement was made in the sale

deed dated November 3, 1999 that the said premises in

occupation of the complainant has been transferred by

the vendor to the advocate appellant.

16. From the material on record the professional

mis-conduct of the advocate appellant is clearly

established and the Disciplinary Committee of the

State Bar Council, Madhya Pradesh, cannot be said to

have committed any error in holding him guilty of the
11

professional mis-conduct. Having held that, the

Disciplinary Committee of the State Bar Council

awarded him punishment of reprimand. Against the

inadequate punishment awarded to the advocate

appellant for the proved professional mis-conduct, the

complainant preferred appeal. In that appeal, notice

was issued to the advocate appellant and in response

thereto, he did appear before the Disciplinary

Committee of the Bar Council of India on October 30,

2004 and was fully heard. The requirement of the

proviso appended to Section 37(2) of the 1961 is,

thus, fully met.

17. The legal profession is a noble profession.

It is not a business or a trade. A person practising

law has to practise in the spirit of honesty and not

in the spirit of mischief-making or money-getting. An

advocate’s attitude towards and dealings with his

client has to be scrupulously honest and fair.

18. In V.C. Rangadurai Vs. D. Gopalan and others1

Krishna Iyer, J. stated :-

“Law’s nobility as a profession lasts only so
long as the members maintain their commitment
to integrity and service to the community.”

1 AIR 1979 SC 281
12

19. Any compromise with the law’s nobility as a

profession is bound to affect the faith of the people

in the rule of law and, therefore, unprofessional

conduct by an advocate has to be viewed seriously. A

person practising law has an obligation to maintain

probity and high standard of professional ethics and

morality.

20. In the above backdrop, if the conduct of the

advocate appellant is seen, it becomes clear that he

was privy to the following false statement recorded in

the sale deed dated November 3, 1999 :-

“That on the Western side of the saleable
property one shop adjacent to the Sahara
lounge having 257 sq.ft. is there and in
which at present Shri Nathu Lal Vishwakarma
runs the hotel and the same has already been
transferred by the Seller to Shri Dhan Raj
Singh Choudhary by giving him the ownership
right….”

21. In his deposition before the Disciplinary

Committee, State Bar Council, Madhya Pradesh, the

advocate appellant stated that he came to know of the

said fact when the complainant had lodged the

complaint against him. His explanation does not merit

acceptance. On a question put by the Disciplinary

Committee to him that prior to signing the sale deed
13

dated November 3, 1999 in the form of witness why did

he not read the said document, his reply was that he

did not consider it essential to read the contents of

the sale deed. Can it be believed? We think not. It

was not only undesirable but highly unethical on the

part of the advocate appellant to have created title

or at least having attempted to create title in him in

respect of the property for which litigation was

pending in the court and he was representing one of

the parties in that litigation. But for his

connivance with the vendor, no such statement would

have found place in the sale deed dated November 3,

1999. The professional misconduct proved against the

advocate appellant is quite grave and serious. The

question now is of the award of appropriate punishment

to the advocate appellant.

22. Mr. S.B. Sanyal, learned senior counsel,

submitted that the incident was quite old; the

advocate appellant did not get any benefit out of the

said statement made in the sale deed and, subsequently

the above statement in the sale deed has been expunged

on the agreement of the vendor and vendee. In the

light of these mitigating circumstances, the learned

counsel submitted that suspension of practice for one
14

year was harsh. He appealed for reduction of the

suspension period.

23. By order dated November 30, 2011, we directed

the advocate appellant to remain personally present on

the next date of hearing. In view of that, the

advocate appellant is present before us. In addition

to the circumstances pointed out by Mr. S.B. Sanyal,

learned senior counsel, the advocate appellant

informed us that he has been suffering from glaucoma

in his both eyes and was not keeping good health.

24. We find that the two applications, being

Interlocutory Application No. 4 in Civil Appeal No.

4484 of 2005 and Interlocutor Application No. 8 in

Civil Appeal No. 2293 of 2005, have been made by the

advocate appellant and the complainant jointly for

disposal of the Appeals in terms of the compromise

between them. We are unable to accede to their

request. In our view the settlement with the

complainant does not mitigate or wipe out professional

misconduct and must not prevent adequate punishment to

the advocate appellant. Both these applications are,

accordingly, rejected.

25. The punishment for professional misconduct has

twin objectives – deterrence and correction. Having
15

regard to the over all facts and circumstances of the

case which have been noted above, we are of the view

that if the advocate appellant is suspended from

practice for a period of three months effective from

today the above objectives would be met. We order

accordingly.

26. Both Civil Appeals are dismissed with the

modification in punishment as indicated above. No

costs.

27. The Registry shall send copy of this Order to

the Secretary, State Bar Council, Madhya Pradesh and

the Secretary, Bar Council of India immediately.
…………………….J.
(R.M. LODHA)
NEW DELHI ………………………J.
DECEMBER 08, 2011 (H.L. GOKHALE)

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