1.

Negligence in Conducting Case and Misleading Client

B.C.I. Tr. Case No. 104/1990

C vs R Shri Jagannath Patnaik (Chairman) and Shri Ashok Deb and Shri S.K. Padhi
(Members)

FACTS OF THE CASE

Complainant’s Case: The Complainant had filed a suit in respect of an immovable property and
had appointed the Respondent-Advocate to represent him in the said case. The Complainant
visited the Respondent on different dates to ask about the progress of the case. He was informed
that the case was pending in the Court of the Rent Controller. After a considerable time, the
Complainant discovered that the case had been dismissed for default long back. The
Complainant’s efforts to restore the case through another Advocate did not yield any results and
he was constrained to file a fresh case.

Respondent’s Case: Respondent admitted that he had represented the Complainant in the said
case, but could not give any reason for the dismissal of the case for default, and also for making
the false representations to the Complainant that the case was pending.

PROCEEDINGS Therefore, the B.C.I. had no hesitation in holding that the Respondent had
committed professional misconduct as it is well settled that gross negligence on the part of an
Advocate which leads to the suffering and harassment of the client will amount to misconduct,
and that it was exactly what had happened in this case. The Respondent-Advocate had neither
expressed remorse nor tendered apology in his defence. On the contrary, he had unnecessarily
tried to put blame upon the Complainant himself. It was also brought to the notice of the D.C. of
B.C.I. that the Respondent-Advocate had committed similar misconduct in the past and had been
punished with suspension for a period of 1 month. That order was confirmed by the Supreme
Court of India.

ORDER In view of all these circumstances, the D.C. of B.C.I. found it proper to suspend the
Respondent-Advocate from practice for a period of six months

2. Negligence in Conducting Case and Threatening Client

B.C.I. Tr. Case No. 52/1989

Kapil Dev Singh vs. Prem Nath Shri V.C. Sharma (Chairman) and Shri B.N. Sharma and
Shri Sarvesh Sharam (Members)

FACTS OF THE CASE

Complainant’s Case: Complainant was a party in two cases. He wanted to file two Writ Petitions
against some orders in those two cases. He engaged the Respondent-Advocate as his counsel for
filing these Writ Petitions, and paid him Rs. 2000. Complainant also handed over the necessary
case papers to the Respondent along with several signed plain papers. Respondent assured the
Complainant that he would file the Writ Petitions before the Lucknow Bench of the High Court.
After a few days, when the Complainant met the Respondent, Respondent told him that he had
already got the Writ Petitions filed through a High Court Advocate. However, he could not tell
the name of the High Court Advocate. Becoming suspicious about the whole incident, the
Complainant made enquiries and found that the Writ Petitions were not filed. Therefore, he met
the Respondent and asked him to refund the money and also to return the papers. Realising the
trouble, the Respondent threatened and insulted the Complainant. Thereby, he has committed
misconduct.

Respondent’s Case: Respondent in his defence denied all the contentions of the Complainant. He
denied that the Complainant engaged him as Advocate and that he had accepted the vakalatnama.
But he did not deny the payment of Rs. 2,000 or the delivery of papers to him. He contended that
the relation between the parties was strained, and out of animosity, the Complainant had filed
this false complaint. The B.C.I. was surprised to see that the defence was not verified as required
under the provisions of CPC, and therefore, it did not find the defence admissible. The
Respondent also did not care to file any affidavit in support of his defence. Therefore, all his
contentions were ignored by the B.C.I.

PROCEEDINGS The Respondent did not even care to appear before the D.C. of either the
S.B.C. or the B.C.I. Hence, D.C. of B.C.I. recorded the statement of the Complainant on oath and
decided the matter on the strength of the records. As the Respondent did not forcefully and
successfully oppose the complaint, the D.C. of the B.C.I. had no hesitation in upholding the
contentions in the complaint, and to hold the Respondent guilty of misconduct as alleged in the
complaint.

ORDER The Respondent was suspended from practice for a period of six months

3. Negligence in Conducting Case)

D.C. Appeal No. 40/1986

G vs. M Shri M.L. Garg (Chairman) and Shri R.S. Mahendra and Shri N.N. Mathur
(Members)

FACTS OF THE CASE

Complainant’s Case: Complainant obtained a temporary injunction against her husband

restraining him from contracting a second marriage. Subsequently the suit was dismissed for
non-prosecution. Taking this opportunity, her husband remarried on 2.5.1985. Thus, due to the
negligence of the Respondent in conducting the case, the Complainant is put to great loss.

Respondent’s Case: Respondent honestly admitted that he did not appear in the case on the said
date and hence the suit was dismissed. He had to attend the marriage of a relative on the said date
and had requested one of his colleagues to represent in that case. Before the Respondent could
move an application for restoration, the Complainant withdrew the brief from him.

PROCEEDINGS Neither party led and produced any evidence. The case was decided by the
D.C. of the S.B.C. on the strength of the pleadings alone. It found that there was no negligence
on the part of the Respondent in the non-prosecution of the case, but he was negligent in not
filing the restoration application. As such he was held guilty of misconduct and was
reprimanded. In the appeal, the Respondent produced a certified copy of an application filed by
the Complainant in the Court of District and Sessions Judge expressing apprehension that her
husband may remarry. The application was filed in July 1985. This showed that the
Complainant’s and averment that her husband had remarried on 2.5.1985 was false. The
Complainant did not appear before the D.C. of the B.C.I. to explain the discrepancy. Thus, the
Complainant’s version that the negligence on the part of the Respondent gave an opportunity to
her husband to remarry was rejected by the D.C. of the B.C.I. 21 Further, there was no reason for
the D.C. of the B.C.I. to disbelieve the Respondent’s version that he was not given any
opportunity by the Complainant to file a restoration application, especially when the same had
gone unchallenged by the Complainant. Therefore, the view of the D.C. of the S.B.C. that the
Respondent was negligent in not filing the restoration application was held to be not correct.

ORDER Therefore, the appeal was allowed and their order and judgement of the D.C. of the
S.B.C. was reversed setting aside the conviction and sentence. The Respondent was exonerated
of all the charges levelled against him.

4. Negligence in Conducting the Case, Inordinate Delay in Filing the Complaint)

D.C. Appeal No. 7/1981

C vs. P Shri N. Rangaraj (Chairman) and Shri K.N. Rajashekhar and Shri P.V. Shetty

FACTS OF THE CASE

Complainant’s Case: Complainant and his wife wanted to purchase flat and they entered into an
agreement for the purchase of a flat with an estate agent, and also paid him some advance
money. But the estate agent tried to dupe them. In order to take legal recourse the Complainant
approached the Respondent-Advocate. Complainant paid Rs. 3,000 to the Respondent towards
his fees and expenses and obtained a receipt. But the Respondent-Advocate did not take any
action. In the meanwhile, the Complainant could recover almost the entire amount from the
estate agent with the help of the Police. Therefore, he did not feel it necessary to file suit against
the estate agent and therefore, demanded the money back from the Advocate by writing him a
letter. But he did not get any reply from the Advocate. Therefore, he filed a complaint against
him for the misconduct.

Respondent’s Case: Respondent admitted almost all the facts. But he contended that at the time
of filing the police complaint itself the Complainant had taken back all the papers as well as the
draft plaint prepared by the Respondent. Respondent had drafted the police complaint and it was
agreed that the Respondent should adjust Rs. 500 towards expenses for effecting the compromise
through police and Rs. 1,500 were his fees. Respondent had returned Rs. 1,000 to the
Complainant in cash. He claimed that he had also received a receipt from the Complainant but it
was missing. He expressed suspicion that it might have gone back to the Complainant along with
the case papers. He also contended that the Complainant has filed the complaint only after six
years. If he were really aggrieved, he would not have waited for six years.

PROCEEDINGS - The D.C. of the S.B.C., after going through the evidence, was of the opinion
that the Respondent had not returned the money to the Complainant and therefore, he was held
guilty of misconduct and was suspended from practice for a period of three years. In the appeal,
the Respondent raised a fresh defence that the complaint was time barred under art. 137 of the
Limitation Act. He again stressed that the delay in filing the complaint itself showed that it was a
false complaint. After going through the records carefully, the D.C. of the B.C.I. was satisfied
that the Respondent had refunded Rs. 1,000 to the Complainant after deducting Rs. 2,000
towards his professional charges. It accepted the contention of the Complainant that due to
inordinate delay in filing the complaint it was very difficult for him to produce the necessary
evidence. D.C. of the B.C.I. accepted all the contentions of the Respondent and expressed its
reluctance to believe that the aggrieved Complainant would have waited for a long period of six
years before filing the complaint.

ORDER - Hence it allowed the appeal, and the conviction and the sentence passed by and the
lower D.C. was set aside. The D.C. of the B.C.I. did not deem it necessary to give its opinion on
the point limitation.

5. Breach of Trust

D.C. Appeal No. 24/1990

A vs. R Shri D.V. Patil (Chairman) and Shri R.S. Chahar and Shri Khazan Singh
(Members)
FACTS OF THE CASE:

Complainant’s Case: Complainant was a General Power of Attorney-holder of his mother-in-law,

one Mrs. Mary Raymond, during her life time, and her L.R. after her death. Respondent was the
Advocate of the said lady and he had prepared her will. The will was in the custody of the
Respondent. The Respondent had passed a receipt to that effect. Subsequently Mrs. Raymond
changed her Advocate and the new Advocate requested the Respondent to hand over the will to
him. Respondent refused to hand over the will. Therefore Mrs. Raymond got a new will prepared
by the new Advocate. Even thereafter, the Complainant made several requests to the Respondent
to hand over the will to him, but all his efforts were fruitless. Thus, the act of the Respondent
was mischievous, and had Mrs. Raymond died intestate, it would have resulted in serious
damage to her.

PROCEEDINGS D.C. of Karnataka S.B.C. rejected the complaint holding that there was no
prima facie case. This order was set aside by the B.C.I. and hearing was ordered. Both parties
were heard by the D.C. of Karnataka S.B.C. and the complaint was dismissed holding that the
will had become res nullius and the Respondent was not liable to return it. D.C. of S.B.C. gave
special emphasis on the fact that there was considerable delay in filing the complaint. It also
observed that the complaint arises out of animosity between parties. In any case, it was held that
the Complainant nowhere alleged the misuse of the will by the Respondent, and he could not
prove that its non return caused any loss or damage to the Complainant or Mrs. Raymond. D.C.
of B.C.I. differed on all these views expressed by the D.C. of Karnataka S.B.C. The said will was
the property of Mrs. Raymond and she was entitled to recover the same from the Respondent
during her life time. After her death the Complainant who was her Legal Representative was
entitled to recover it. This was not disputed by the Respondent. Therefore, non-return of will
amounted to breach of trust on the part of the Respondent. Mere refusal to return the will was
sufficient to make the Respondent liable for misconduct and it was immaterial whether or not the
will was misused by him, or whether or not the non-return of the will resulted into any loss or
damage to Mrs. Raymond or to the Complainant. B.C.I. also observed that mere delay in
complaint or strained relations between the parties per se would not make the complaint false.

ORDER In the result, the appeal was allowed and order of the D.C. of the Karnataka S.B.C. was
set aside. The Respondent was held guilty of misconduct. He was suspended from practice for a
period of one year.

6. Negligence in Conducting Case

D.C. Appeal No. 40/1986

G vs. M Shri M.L. Garg (Chairman) and Shri R.S. Mahendra and Shri N.N. Mathur
(Members
FACTS OF THE CASE:

Complainant’s Case: Complainant obtained a temporary injunction against her husband

restraining him from contracting a second marriage. Subsequently the suit was dismissed for
non-prosecution. Taking this opportunity, her husband remarried on 2.5.1985. Thus, due to the
negligence of the Respondent in conducting the case, the Complainant is put to great loss.

Respondent’s Case: Respondent honestly admitted that he did not appear in the case on the said
date and hence the suit was dismissed. He had to attend the marriage of a relative on the said date
and had requested one of his colleagues to represent in that case. Before the Respondent could
move an application for restoration, the Complainant withdrew the brief from him.

PROCEEDINGS Neither party led and produced any evidence. The case was decided by the
D.C. of the S.B.C. on the strength of the pleadings alone. It found that there was no negligence
on the part of the Respondent in the non-prosecution of the case, but he was negligent in not
filing the restoration application. As such he was held guilty of misconduct and was
reprimanded. In the appeal, the Respondent produced a certified copy of an application filed by
the Complainant in the Court of District and Sessions Judge expressing apprehension that her
husband may remarry. The application was filed in July 1985. This showed that the
Complainant’s and averment that her husband had remarried on 2.5.1985 was false. The
Complainant did not appear before the D.C. of the B.C.I. to explain the discrepancy. Thus, the
Complainant’s version that the negligence on the part of the Respondent gave an opportunity to
her husband to remarry was rejected by the D.C. of the B.C.IFurther, there was no reason for the
D.C. of the B.C.I. to disbelieve the Respondent’s version that he was not given any opportunity
by the Complainant to file a restoration application, especially when the same had gone
unchallenged by the Complainant. Therefore, the view of the D.C. of the S.B.C. that the
Respondent was negligent in not filing the restoration application was held to be not correct.

ORDER Therefore, the appeal was allowed and their order and judgement of the D.C. of the
S.B.C. was reversed setting aside the conviction and sentence. The Respondent was exonerated
of all the charges levelled against him

7. Breach of Trust

D.C. Appeal No. 24/1990

A vs. R Shri D.V. Patil (Chairman) and Shri R.S. Chahar and Shri Khazan Singh
(Members)

FACTS OF THE CASE :

Complainant’s Case: Complainant was a General Power of Attorney-holder of his mother-in-
law, one Mrs. Mary Raymond, during her life time, and her L.R. after her death. Respondent was
the Advocate of the said lady and he had prepared her will. The will was in the custody of the
Respondent. The Respondent had passed a receipt to that effect. Subsequently Mrs. Raymond
changed her Advocate and the new Advocate requested the Respondent to hand over the will to
him. Respondent refused to hand over the will. Therefore Mrs. Raymond got a new will prepared
by the new Advocate. Even thereafter, the Complainant made several requests to the Respondent
to hand over the will to him, but all his efforts were fruitless. Thus, the act of the Respondent
was mischievous, and had Mrs. Raymond died intestate, it would have resulted in serious
damage to her.

PROCEEDINGS D.C. of Karnataka S.B.C. rejected the complaint holding that there was no
prima facie case. This order was set aside by the B.C.I. and hearing was ordered. Both parties
were heard by the D.C. of Karnataka S.B.C. and the complaint was dismissed holding that the
will had become res nullius and the Respondent was not liable to return it. D.C. of S.B.C. gave
special emphasis on the fact that there was considerable delay in filing the complaint. It also
observed that the complaint arises out of animosity between parties. In any case, it was held that
the Complainant nowhere alleged the misuse of the will by the Respondent, and he could not
prove that its non return caused any loss or damage to the Complainant or Mrs. Raymond. D.C.
of B.C.I. differed on all these views expressed by the D.C. of Karnataka S.B.C. The said will was
the property of Mrs. Raymond and she was entitled to recover the same from the Respondent
during her life time. After her death the Complainant who was her Legal Representative was
entitled to recover it. This was not disputed by the Respondent. Therefore, non-return of will
amounted to breach of trust on the part of the Respondent. Mere refusal to return the will was
sufficient to make the Respondent liable for misconduct and it was immaterial whether or not the
will was misused by him, or whether or not the non-return of the will resulted into any loss or
damage to Mrs. Raymond or to the Complainant. B.C.I. also observed that mere delay in
complaint or strained relations between the parties per se would not make the complaint false.

ORDER In the result, the appeal was allowed and order of the D.C. of the Karnataka S.B.C. was
set aside. The Respondent was held guilty of misconduct. He was suspended from practice for a
period of one year.

8. Misappropriation of Client’s Money

D.C. Appeal No. 21/1985

G. vs. T. Shri D.V. Patil (Chairman) and Shri N.K. Jain and Shri J.K. Singh (Members)
FACTS OF THE CASE:

Complainant’s Case: Complainant and other co-sharers in a land acquired by the government
were awarded compensation in some land acquisition matters. The Respondent-Advocate was
authorised to receive the compensation money from the Collector after complying with the
necessary legal formalities. Accordingly the Respondent-Advocate received compensation
money, but he did not pay the same to the Complainant in spite of several requests.

Respondent’s Case: Respondent denied that he had received money from the Collector on behalf
of the Complainant. But during the proceedings before a the D.C. of S.B.C. he asserted that he
had received the cheque on behalf of the Complainant and after encashing it he had handed over
the cash to his registered clerk for delivering it to the Complainant. He prayed for summoning
the clerk. The clerk denied that the signature on the receipt was his signature and maintained that
it was the signature of the Complainant.

PROCEEDINGS The Respondent at first denied that he had received a money on behalf of the
Complainant. Then he said that he had received the cheque and after encashing it he had sent the
money to the Complainant through his clerk. The receipt produced by the Respondent disclosed
that the money paid to the Complainant under that receipt was in respect of some other matters.
It was not in respect of the Land Acquisition Matters mentioned in the complaint. Therefore the
receipt did not help the Respondent in the present case. The Respondent had admitted that he had
received money on behalf of the Complainant, but he failed to prove that he had paid the money
to the Complainant.

ORDER Therefore DC of the SBC held that the Respondent was guilty of professional
misconduct by misappropriating client’s money. In the result, his name was removed from the
Roll of Advocates. This order was confirmed by the DC of the BCI. DC of the BCI further
awarded costs of Rs. 500 to the Complainant

9. Misuse of Position of Advocate and Confidence of the Client

B.C.I. Tr. Case No. 43/1982

S and H. vs. T. Shri D.V. Patil (Chairman) and Shri N.K. Jain and Shri J.K. Singh

FACTS OF THE CASE:

Complainant’s Case: Complainants were entrusting all their cases to the Respondent and had
confidence in him. Respondent made an offer to Complainants that the Complainant No. 1, the
wife of the Respondent and another two persons could form a partnership for the manufacturing
and sale of bricks. This offer was accepted by the Complainant No. 1 and she paid the Rs. 18,496
to the Respondent towards her share capital. The firm was established but no partnership deed
came to the executed. Later on, the Respondent executed a partnership deed excluding his wife
and Complainant No. 1. Complainant realised the foul play on the part of the Respondent an
approached him for the rendition of accounts. But this failed as the Respondent refused to show
accounts. Thus the Respondent has committed professional misconduct by misusing his power as
an Advocate who was enjoying confidence of the Complainants as their Advocate and legal
adviser.

Respondent’s Case: The Respondent denied all the allegations in the complaint. He denied the
facts of payment of money to him by the Complainant No. 1 and also the fact that his wife was a
partner in the business. Therefore, he had not taken any advantage of his position as Advocate.
Hence there is no misconduct on his part.

PROCEEDINGS D.C. of the B.C.I. went through the materials on record and heard both sides.
There was some evidence to show that the Respondent’s wife was carrying on the business of
bricks. But there was no evidence as to the partnership. Nowhere it was alleged and proved that
the Respondent was involved in the business. No independent evidence to show the role of the
Respondent in the business was placed on the record. Simply because the Respondent was the
counsel of the Complainants and that resulted into friendship does not mean that any act
committed thereafter would lead to professional misconduct.

ORDER On these grounds the complaint was dismissed.

10. Making False Assurances

D.C. Appeal No. 34/1985

R vs. Y and S

FACTS OF THE CASE

Complainant’s Case: The Complainants jointly started an industry-cum-laboratory under the

name and style of to “The Universal Scientific and Industrial Centre”, under the financial
assistance from the Canara Bank. The Bank had originally sanctioned a loan of Rs. 20 lakhs,
after releasing a part of the loan it stopped the payment and initiated legal proceedings for the
recovery of the loan already released. The Respondent Advocate was engaged by the
Complainant to represent him in the said case. The Respondent-Advocate assured that he will be
able to get a compensation of Rs. 50 lakhs from the Bank at the rate of Rs. 60,000 per month for
the abrupt stoppage of payment. For this he collected excess money apart from the agreed fee
from the Complainants. But he did not take any steps for getting the compensation. On the
contrary he even failed to cross-examine the Bank. Thus he had played fraud and therefore was
guilty of misconduct.

Respondent’s Case: The Respondent admitted that he was engaged by the Complainants to
represent them in their case against the Bank. He also admitted that he had received free from the
Complainants, but denied that he had collected excessive money from them as claimed in the
complaint. The Respondent contended that he had not assured to get them any damages.
Considering the various aspects of the suit, the Complainants were not ready to depose before the
court, and therefore he had advised them to compromise the case. This was misunderstood by the
Complainants.

PROCEEDINGS The Complainants did not examine themselves before the D.C. of the S.B.C.
Their Power of Attorney-holder was examined as their only witness. He produced several
documents and got them marked. Respondent was the only witness on his side. From the records
the D.C. of the S.B.C. was satisfied that the Complainants had proved their case against the
Respondent that he had collected excess money by making false promise. Therefore the D.C. of
the S.B.C. was of the opinion that he was guilty of misconduct. However as the Respondent was
aged about 80 years and had put in about 50 years of practice he was only reprimanded. The
Complainants had produced several counterfoils of cheques to prove their case. They also
produced the pass book. The Respondent gave a strange and curious explanation to these. He
said that the cheques were sent him through a person who used take the signature of the
Respondent on the cheques and he used to take pay cash to the Respondent under the pretext that
it was difficult for him because of his age to go to the bank to encash the cheques. He used to
take back the cheques and probably he used to tamper with them. This argument of the
Respondent was dismissed by the D.C. of the B.C.I. with contempt. At this stage the Respondent
offered to refund the money collected by him in excess of his fees. This itself showed that he had
collected excess money as alleged by the Complainants.

ORDER Therefore the appeal was dismissed and the order of the lower DC was upheld on
conviction and punishment.

11. Representing the Other Side

B.C.I. Tr. Case No. 39/1987

G vs. S Shri C.L. Sachdeva (Chairman) and Shri Bhagawati Prasad and Smt. Kamala Jain
FACTS OF THE CASE

Complainant’s Case: Complainant was a partner in a firm under the name and style of M/s.
Asian Live Pharma, and the Respondents were the Advocates and legal advisors to this firm. A
meeting of partners of the firm, including the Complainant, with the Respondents took place in
the office of the Respondents. At this meeting, the Complainant disclosed all the facts of his case
to the Respondents. Subsequently, there was a suit for dissolution of partnership among the
members of the said firm. In that suit, the Respondents represented the other partners against the
Complainant. As the Complainant had disclosed his case to the Respondents, they have
committed misconduct by appearing against him.

Respondents’ Case: Respondents denied the case of the Complainant. They denied that the
Complainant had supplied or disclosed any information to them, which would make them liable
for passing on secrets.

PROCEEDINGS The Complainant stated in his deposition that the meeting took place for about
15 minutes. In that meeting all the partners of his firm participated. During the meeting, the
Complainant informed the Respondents, in confidence, about manoeuvring of accounts and fraud
committed by him in the partnership firm. As the meeting took place only for about 15 minutes,
during such a short meeting all the facts averred by the Complainant could not have happened.
Therefore, the D.C. of the B.C.I. held that the Respondents had not committed the alleged
misconduct. But it felt that in the propriety of things, the Respondents should not continue with
the case. The Respondents agreed to this.

ORDER Therefore, in the light of above reasons, the D.C. of the B.C.I. was pleased to dismiss
the complaint.

12. Changing of Side

B.C.I. Tr. Case No. 52/1988

S.G. vs. C.P. Shri B.P. Samaiyar (Chairman) and Shri K.P. Sinha and Shri V.C. Mishra
(Members)

FACTS OF THE CASE

Complainant’s Case: The Complainant has a dispute pending before the Registrar of Firms,
Societies and Chit Fund, Kshetra Kajuri, Varanasi. The said case is pending since about 5 years
prior to the date of this complaint. In that case, the Complainant is represented by the
Respondent-Advocate. The Complainant came to know that the Assistant Registrar had gone in
to collusion with the other side, and that he could not expect to get any justice from him.
Therefore, he filed a suit in the Court of Munsiff, City Varanasi. In that case, the Respondent
represented the other side. The Respondent had represented the Complainant before the Assistant
Registrar, and as such, he had been knowing all the facts of the Complainant’s case. Therefore
by joining the other side in the case before the Munsiff, the Respondent had committed
professional misconduct.

Respondent’s Case: Several notices which were issued to the Respondent were returned
unserved and finally one notice was served upon him. However, he did not care to appear before
the D.C. and to present his side of the case. Therefore, the Committee placed him ex parte.

PROCEEDINGS The only question before the Bar Council was: Whether the Complainant has
succeeded in establishing that in fact the Respondent had worked for him before the Assistant
Registrar? This being an ex parte case, the Complainant did not intend to adduce further
evidence and rested his case on his complaint and the records on the file called from the
Assistant Registrar. On Annexure 1, Photostat copy of the petition filed before the Assistant
Registrar, there was signature purporting to be that of the Respondent. Annexure 2 consisted of
some documents which were alleged to be written by the Respondent in his own hand.
According to the Complainant this clearly showed that the Respondent was duly acquainted with
the facts of the Complainant’s case. As such, the Complainant argued that the Respondent has
committed professional misconduct by joining the other side in the civil suit. According the
Complainant Annexures 1 and 2 were the true copies of their originals, and Annexure 1
contained the signature alleged to be that of the Respondent. But the original called from the
Assistant Registrar did not bear any such signature. Annexure 2 was alleged to be in the
handwriting of the Respondent. But a sample of Respondent’s admitted handwriting was not
made available for comparison. No vakalatnama was produced. No evidence was lead to prove
the signature on Annexure 1. Therefore it was held that Annexure 1 was not a true copy of the
original. It was also held that Annexure 2 was not proven to be in the handwriting of the
Respondent.

ORDER In the result, it was held that the Complainant had failed to prove his case. Hence the
case was dismissed.

13. Identifying Wrong Person before Court

B.C.I. Tr. Case No. 6/1984

J.R. vs J.K. Shri V.C. Mishra (Chairman) and Shri B.N. Sharma and Shri Viresh Mishra
(Members)

FACTS OF THE CASE

Complainant’s Case: Land of the Complainant was acquired by the state along with some other
lands. The state deposited compensation amount in the Court. But due to mistake, the list
contained the name of some other person (A) in place of the name of the Complainant. A third
person (B) withdrew the amount by representing himself to be A. The Respondent identified B as
A, and thereby the Respondent had committed misconduct.

Respondent’s Case: The list consisted of names of as many as 136 persons and these persons had
to furnish security of sarpanch for the money and get the amount released from the Court. The
Respondent identified the sarpanch and the sarpanch in turn identified the parties. It was further
alleged that the person who withdrew the money belonging to the Complainant subsequently
realised the mistake and immediately thereupon he redeposited the amount in the court.

PROCEEDINGS The following issue was framed by the Bar Council: Is the Respondent guilty
of misconduct by identifying wrong person before the court? The evidence of an independent
witness adduced by the Respondent clearly showed that the practice of the court was that the
Advocate identifies the sarpanch and numberdars, and the sarpanch and numberdars in turn
identify the parties. Another witness on the side of the Respondent also deposed to the same
effect. There was no reason to disbelieve these testimonies. Also the receipt showed that the
person in question was identified by the sarpanch and an endorsement to that effect was found on
the back of the receipt. Therefore no case of misconduct was made out against the Respondent-
Advocate. The D.C. of the B.C.I. felt that the complaint was misconceived and therefore it was
liable to be dismissed.

ORDER The complaint was accordingly dismissed

14. Filing Forged Vakalatnama, Representing a Client without Authority

B.C.I. Tr. Case No. 57/1987

C vs. M Shri C.L. Sachdeva (Chairman) and Shri V.C. Mishra and Shri O.P. Sharma
(Members)

FACTS OF THE CASE

Complainant’s Case: Complainant’s husband filed a divorce petition against her. The summons
of the case was never served up on her. She was not even aware of these divorce proceedings.
The Complainant had filed a suit for permanent injunction against her husband for restraining
him from contracting a second marriage. In that case her husband produced a divorce decree
dissolving their marriage. Surprised by this, she got the records examined through her counsel
and found that the Respondent-Advocate had filed a false vakalatnama on her behalf in the
divorce case and had conducted the case without her knowledge, much less her authority. She
being an illiterate lady could not sign and she used to put her thumb impressions. Therefore the
signature on the false vakalatnama was not her signature. The Respondent in collusion with her
husband represented her in the case with fabricated and forged documents and lost the case
deliberately. Thereby he had committed misconduct.

PROCEEDINGS The Respondent refused the notices sent to him by the D.C. of the S.B.C. and
also did not choose to appear before the D.C. of the B.C.I. Complainant also changed the address
and did not intimate the change of address to the B.C.I. or to the S.B.C. Therefore the case was
decided on records. The allegations made in the affidavit filed by the Complainant remained
unrebutted and therefore they were accepted as true by the B.C.I. Therefore it came to the
conclusion that the Respondent was guilty of serious misconduct of a very grave nature. He had
filed forged vakalatnama and represented the Complainant without her authority and knowledge.

ORDER Therefore the Respondent-Advocate was suspended from practice for a period of six
months. The D.C. of the B.C.I. took lenient view because the Respondent-Advocate had put in
only five years of practice.

15. Supreme Court Bar Association Vs. Union of India & ANR [1998] SCC 225

The matter came to the supreme court by way of a writ petition filed against the decision of the
Supreme court in Re: Vinay Chandra Mishra. In Vinay Chandra case supreme court suspended
the contemnor-Vinay Chandra from practising as an advocate for 3 years in addition to
imprisonment and such imprisonment will remain suspended and will be activated if the
contemnor is convicted for contempt of court once again. In Vinay Chandra case Court had held
that power of Supreme Court to take cognizance of contempt and to award punishment for it
under article 129 and 142(2) is independent of any statute. According to court the power to
punish under article 129 and 142(2) is independent and cannot be controlled by any statute,
because such power is “sui generis”.

Thus in Supreme Court Bar Association v. Union of India the decision of the court to suspend
the advocate was challenged. The main contention of the petitioner was that the Supreme Court
had no jurisdiction to suspend an advocate from practising, because this was the exclusive
domain of the State Bar Council or the Bar Council of India, under the advocates act, 1971.

According to section 35 if the state bar council believes that an advocate is guilty of professional
misconduct then it shall refer that case to its Disciplinary committee and only the disciplinary
committee can punish the advocate for suchconduct

According to the petitioner, the act of Vinay Chandra amounts to Professional misconduct which
is different from contempt of court and punishment for misconduct can be given only under
advocates act, 1961.
It was also contended that under Article 142(2) court can punish for contempt only in a cause
which is pending before it and that professional misconduct is not a subject matter which is
expressly pending before the court while dealing with a case of contempt.

Petitioner also contended that court cannot suspend the licence to practice of an advocate and
doing so under article 142 would amount to “assuming a jurisdiction”. It said that the court
cannot create a jurisdiction or punishment which has not been expressly provided by a law.

Court thus went on to discuss the nature and scope of power to punish for contempt under article
129 and 142(2).

Nature and scope of power to punish for contempt

 According to the court, the Supreme Court of India and High Courts of states both being
Courts of Record have an inherent power to punish for its contempt. It relied mainly on
Nigel Lowe and Brenda Sufrin’s treatise on the Law of Contempt;
 According to it the contempt jurisdiction of courts of record forms part of its inherent
jurisdiction. All courts have an inherent jurisdiction to punish for contempt committed on
their face but the inherent power to punish for contempt committed outside the court is
the exclusive domain of superior courts of record.
 It says that although parliament and state legislatures have the power to make law on
contempt of court of Supreme Court and High court but such law cannot “denude,
abrogate or nullify”, the power of the supreme court to punish for contempt under article
129 or that of High Courts under article 215 of the constitution, because that power is
inherent in Supreme court and High courts, being a court of record. In simple words, it
means that parliament or state legislature can make laws on contempt of court, because of
Entry 77 in List 1 and Entry 14 of List 3, but such law cannot limit or restrict the power
of the courts to punish for contempt.
 It further observes that apart from punishing for contempt under article 129, it also has
the power to investigate and punish for contempt under Article 142(2) of the constitution.