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Civil Miscellaneous Appeal No. 1 of 1956, decided on 4th May 1956.
(On appeal from the judgment and order of the High Court of West Pakistan at Lahore, dated the 14th February 1955, in Civil Miscellaneous No. 559 of 1954).
Ground Question, whether proceeding against an Advocate under disciplinary jurisdiction of High Court was not proper mode of relief to client in a case of non‑refund of fee-have granted.
Leave to appeal was granted by the Federal Court against the order of the High Court, suspending an Advocate from practice, where the question was one of ascertaining whether or not the Advocate had refunded the fee to his client and thus satisfied a debt by payment, and, for this 'proceeding under the High Court's disciplinary jurisdiction over its Advocates was not the proper mode of relief to the client.
‑‑Complaint against, under disciplinary juris diction of High Court‑Ordered to be filed by Judge In Chambers on office report, without hearing complainant‑‑Further complaint not incompetent.
A complaint against an Advocate, under the disciplinary jurisdiction of the High Court was ordered to be filed by the Judge in Chambers on the assumption that the explanation of the Advocate called for by the office was true, without the com plainant having appeased and been allowed an opportunity to admit or contradict the Advocate's allegations embodied in his explanation.
Held, that the order was not a final order and was not a bar to a subsequent complaint end proceedings in respect thereof.
(viii)‑Disciplinary action against Advocate for, "reasonable cause"‑----Expression wider in meaning than "professional misconduct"‑Legal Practitioners Act (XVIII of 1879), S. 13 cl. (f).
Conduct which does. not amount to professional misconduct may be a reasonable cause for the removal of an Advocate's name from the rolls.
Therefore disciplinary proceedings may be taken against an Advocate if in the opinion of the Court he has been guilty of some misconduct which has a bearing on the question whether he is a fit person to continue to be an officer of the Court and mis conduct need not be attributable to him while he was acting as an advocate. The degree of misconduct may influence the Court in considering whether proceedings should or should not be started against him as well as in determining the amount of punishment but misconduct being proved it does not at all affect the Court's jurisdiction to express its disapproval of that conduct. No exhaustive definition can be attempted of what may amount to misconduct beyond this that misconduct is conduct that does not become an Advocate, conduct which on the‑part of an Advocate is plainly improper. If such conduct is proved, it would be reasonable cause for action within the meaning of clause (viii) of the Letters Patent (Lahore).
In the matter of Francis Blake 1861 L J Vol. XXXIX (New Series XXX) 32, Stephens v. Hill 10 Mee. & W.28, Re Hill Law Rep. 3 Q B 543, A, a pleader v. The Judges of the High Court of Madras A I R 1930 P C 144 and Shanker Ganesh Dabir v. Secretary of State A I R 1922 P C 351 ref.
Clause (viii) of the Letters Patent (Lahore) empowers the High Court to remove or suspend from practice an Advocate of the Court on reasonable cause which expression is wider in its meaning than "professional misconduct."
As for the expression "professional misconduct" the Judicial Committee in A, a pleader v. The Judges of the High Court of Madras A I R 1930 P C 144, defined it in terms taken from the Legal Practitioners Act, viz., "fraudulent or grossly improper conduct in the discharge of professional duties". There are two necessary ingredients of the offence : Firstly, the conduct must be in the discharge of professional duties. Secondly it must be conduct involving moral turpitude, for that is the least vice which can justify the description "fraudulent or grossly improper".
‑Fee‑Mere omission to refund In case client does not wish Advocate to perform work‑Not always professional mis conduct‑Advocate not always bound to refund
A mere omission to refund the fee is not always miscon duct on the part of an Advocate. If an Advocate has been engaged for a particular work on an agreed fee and subse quently the client does not wish him to perform that work, the Advocate, in the absence of an agreement to the contrary, is not liable to refund the fee, his only duty in the circumstances supposed being to perform the work conscientiously and to the best of his knowledge and ability in consideration of the fee received. If, therefore, the client does not wish him to proceed with the business he cannot demand a refund of the fee merely on the ground that the Advocate was not required to do the work for which he had been engaged.
-Omitting, after undertaking, to refund fee-Neither "professional misconduct" nor "reasonable cause" for disciplinary action (per majority Shahabuddin, Cornelius, Muhammad Sharif and Amiruddin Ahmad, JJ)‑‑(Contra per Muhammad Munir, C. J.)
In a proceeding under the disciplinary jurisdiction of the High Court, the charge against the appellant Advocate was:
"That on the 29th January 1954, you were engaged by Miss Bhagmal, Christian," resident of Gahkhar, on behalf of her brother Subedar Rahmat Ullah; who had appointed her as his special attorney to file a civil appeal in the High Court of Judica ture at Lahore, against the judgment and decree passed by the District Judge, Gujranwala, on the 29th October 1953, in the case re : Subedar Rahmat Ullah v. Ghulam Muhammad relating to a right of passage;
That on the same date you had received from her Rs. 100 as your fee for filing the appeal and Rs. 32‑8‑0 as copying and Court‑fee expenses ;
That yon did not file any anneal in tine High Court., nor did you refund the fee and Rs.42‑8‑0 to Miss K. B. Bhagmal ;
That since the above constitutes professional misconduct, you are called upon to show cause why you should not be suspended or removed from practice."
The charge was denied by the appellant and the Special. Bench after hearing evidence and arguments suspended the appellant from practice for six months.
Held, per majority: (Shahabuddin, Cornelius, Muhammad Sharif and Amiruddin Ahmad, JJ)
That the conduct imputed to the appellant did not amount to "professional misconduct", nor to "reasonable cause" within meaning of clause (viii) of the Letters Patent of the Lahore High Court.
Per Shahabuddin, Cornelius and Muhammad Sharif, JJ. What it is necessary to find (in this case) is something of a gross or evil nature, without which no conclusion of "professional mis conduct" can be reached.
In pith and substance, the proceeding in the High Court involved no allegation of any "males animus which is a necessary ingredient in every fraudulent act" or any allegation of gross impropriety.
Held, that the case was that of a simple debt and 'the high jurisdiction conferred upon the High Court in relation to its Advocates; by clause (vii) of the Letters Patent could not be intended even in the remotest degree, to be utilised for the resolu tion of such matters.
Thomas Newton 'v. The Judges of the High Court, North Western Provinces 8 Moore's P C Cas. (hew Series) 202 ref.
‑If the High Court relied on any other circumstance, which perhaps it did, besides the mere non payment of the money, it was open to the High Court to punish the Advocate for any reasonable cause other than professional misconduct. But the charge should have been either amended or such circumstance brought out in a fresh charge in order to afford an opportunity to the Advocate to meet the charge. As this was not done, in my opinion the order of punishment is unsustainable and is liable to be set aside.
‑‑The objectionable conduct of the appellant was, therefore, misconduct as an Advocate who in the case of an Advocate of a High Court is both counsel and attorney, and thus amounted to professional misconduct. It was conduct which was necessarily referable to his professional engagement and can rightly be described as misconduct in relation to his duties as an Advocate. I cannot accept the position that after the appellant under took to repay the fee the relationship between Miss Bhagmal and him became that of a pure creditor and debtor.
Even where an Advocate liable to refund the fee to his client executes for the amount a promissory note, the relationship of Advocate and client does not come to an end, because the pro missory note in the circumstances is to be considered either a collateral security or a conditional discharge of the original liability which, despite the execution of a promissory note, can be enforced against the Advocate. A contrary view would expose the suitors to, and render the Court helpless against unscrupulous Advocates. It would indeed be a sad day for the Court and the suitors if an Advocate when called upon to explain why he did not behave towards his client like an officer of the Court could oust the Court's jurisdiction on the plea that his agreement with the client being an agreement to refund the fee the client should go to another Court to sue upon the agreement. A person who on being enrolled as an Advocate by a Court acquires the capacity and enjoys' the opportunity of contracting with suitors for professional services cannot be permitted to say to the Court that any complaint arising out of any alleged breach of such contract should not be inquired into by the Court but should. be lodged in an ordinary Court for the performance of the contract or for compensation for its breach. The Court is entitled in any such case to say to the Advocate "You made the contract because you were an Advocate of the Court and the Court at require you to behave as Advocates should"
Even assuming that the relationship that came into exis tence between the appellant and Miss Bhagmal was that of a debtor and creditor, the case would be analogous to that in Re. Blake 1861 L J Vol. XXXIX (New Series XXX) 32, where action against an attorney was held to be justified when he acted improperly in a transaction "which took the form of a mere liability between the two as private persons'".
Mahmud All Advocate, Supreme Court instructed by M. Siddiq Attorney for Appellant.
A. R. Changez Advocate‑General of West Pakistan (Fazal Elahi Advocate, Supreme Court with him) instructed by Ijaz All Attorney for Respondents.
Dates of hearing : 3rd and 4th April 1956.
‑I regret I am unable to agree. The more I have thought over this case the more convinced have I felt that we would not only be striking at the root of the duty that an Advocate in this country owes to his client, and of the jurisdiction that superior Courts possess in the interests of suitors to control the conduct of their Advocates, but also stultifying a rule of our own Court which expressly provides that disciplinary action may be taken against an attorney for the breach of an undertaking, if we accepted as valid the argument that when under the instructions of Rahmatullah the appellant decided not to file the appeal and agreed to return the fee to Miss Bhagmal, the relation of client and legal Adviser came to an end and was sub stituted by that of a creditor and debtor, with the result that however improper and dishonest the appellant's conduct in not refunding the fee may have been, no question of inquiring into such conduct arose and the High Court acted in excess of its jurisdiction to hold an inquiry into the matter. If today we held that when an Advocate, having been instructed not to file an appeal for which purpose he had been originally engaged agrees to return the fee, the High Court in the exercise of its disciplinary jurisdiction can neither require him to refund the fee nor determine the truth of the allegation when the Advocate alleges repayment and that the only course for the client in such a case is to recover the money by action in an ordinary Court of law tomorrow the principle will have to be extended to cases where an Advocate has defrauded a client or committed against him some criminal offence in the course of professional dealings. To my mind, the essential question in such cases is whether the act complained of was grossly improper on the part of the Advocate, and if the answer to that question be in the affirmative the foundation of the Court's jurisdiction is truly laid, the fact that the conduct was improper because it amounted to a dishonest breach of an agreement with the client or to fraud or a criminal offence affecting the quantum of punishment and not the jurisdiction of the Court. I have also little doubt that if the act complained of in this case came up for discussion before a body of the bar who understood the extremely delicate and confidential relationship that exists between a client and an Advocate and was cognizant of the duty that an Advocate owes to his client and of the principle on which the controlling Court claims to exercise disciplinary jurisdiction over its Advocates, the appellant's conduct as found by the High Court would be unequivocally and strongly condemned. In fact the position appears to me to be so plain that the three senior most Judges of the High Court including the Chief Justice who sat to enquire into the matter took the impro priety of the appellant's conduct, if proved, for granted and the learned Advocate who defended the appellant in those proceedings did not even suggest that the dishonest refusal by the appellant to return the fee to Miss Bhagmal was not in the circumstance such improper conduct as would justify the Court to take disciplinary action against him.
Let me state the facts which lead me to these conclusions. One Rahmatullah claims to own a house in the district of Gujranwala. In 1938, however, this man had executed a writing that the house belonged to his three sisters including Miss Bhagmal. In 1952 he instituted against Ghulam Muhammad a suit in the Court of a Civil Judge at Gujranwala claiming for the house a right of way over the defendant's property. The suit was dismissed and the decree was affirmed by the District Judge on appeal. In January 1954, Miss Bhagmal who held a special power of attorney form Rahmatullah came to. Lahore to file a second appeal in the High Court against , the judgment of the District Judge. She engaged the appellant for the purpose and paid him Rs. 132‑8‑0, Rs. 32‑8.0 as the expenses of the appeal and Its. 100 as the appellant's fee. The appellant, however, did not file the appeal within the period of limitation. On 13th March 1954, Miss Bhagmal wrote a registered letter to the appellant enquiring from him the date on which the, appeal was filed and why he appeared to be afraid of intimating to her the date ire the appeal. The appellant did not acknowledged or reply to this letter, with the result that on 16th April 1954, Miss 13hagmal made a complaint to the High Court that the appellant had failed to file the appeal and had misappropriated the money she had paid to him as expenses and fee. A copy of the complaint was sent to the appellant who by a letter addressed to the Deputy Registrar informed the Court that he had not filed the appeal because Miss Bhagmal's principal, Rahmatullah, had cancelled the power of attorney In her favour and had instructed him not to file the appeal. He further alleged in that letter that the money received by him and the papers of the case had been returned to Miss Dhagmal and in support of this allegation submitted some affidavits. The Deputy Registrar put up the papers before the Administration Judge, Rahman J., with the note that because the appellant had been instructed by Rahmatullah not to file the appeal and the money had been returned to Miss Bhagmal, there was no case of professional misconduct and the papers be filed. The Administration Judge agreed with this suggestion and ordered, the papers to be consigned to records. On the 29th May 1954, the Deputy Registrar wrote a letter to Miss Rhagmal informing her that after considering the reply of the Advocate to her complaint the Chief Ju4tice and Judges had ordered her complaint against the Advocate to be filed. On 28th August 1954, Miss Bhagmal submitted a fresh complaint to the High Court referring to the Deputy Registrar's letter to her and alleging that the facts mentioned by the appellant in his reply to the earlier complaint were not true, that the money paid by her to the appellant had not been refunded and that the affidavits produced by the appellant in support of the allegation that he had refunded the money were false and praying at action for misconduct be taken against him. This complaint came up before another Judge, Kayani J., who on the appointment of Rahman, J., as Chief Justice, had become the Administration Judge. In noting on the case the learned Judge remarked that though the appellant was alleging that the money had been refunded, he was unable to produce any receipt and that the original receipt was still in the possession of Miss Bhagmal. He further observed that by moving the Court Miss Bhagmal was not asking for an order of refund and that her case appeared to be that the appellant had colluded with her brother and acted contrary to her own instructions. He accordingly directed the case to be laid before a Division Bench for further proceedings in accordance with the rules. The matter then came up before Kayani and Shabir Ahmad JJ., who finding a prima facie case directed the Advocate‑General to frame a charge. In compliance with that order, the Advocate‑General submitted the following charge against the appellant :‑
"That on the 29th January 1954, you were engaged by Miss Bhagmal, Christian, resident of Gakhar, on behalf of he brother Subedar Rahmat Ullah, who had appointed her as hi special attorney to file a civil appeal in the High Court o Judicature at Lahore, against the judgment and decree passed by the District Judge, Gujranwala, on the 29th October 1953, in the case re : Subedar Rahmat Ullah v. Ghulam Muhammad, relating to a right of passage ;
That on the same date you had received from her Rs. 100 a your fee for filing the appeal and Rs. 32‑8‑0 as copying and Court‑fee expenses ;
That you did not file any appeal in the High Court, no did you refund the fee and Rs. 32‑8‑0 to Miss .K. B. Bhagmal ;
That since the above constitutes professional misconduct, you are called upon to show cause why you should not be suspended or removed from practice."
The charge having been denied by the appellant the matter was heard by a Special Bench of Rahman C. J, and Kayani and Shabir Ahmad JJ. Both Miss Bhagmal and the appellant produced evidence in support of their respective contentions. After hearing the evidence and the arguments the learned Judges found the charge of misconduct proved and suspended the appellant from practice for a period of six months. In giving their reasons for the order they assumed that the sole question in the case was whether the fee had been refunded as alleged by the appellant and after considering the whole evidence‑oral and documentary they held that the appellant "has not paid back the fee which he received from Miss Bhagmal and that consequently he was guilty of professional misconduct".
Against the order of the High Court, the appellant filed in this Court a petition for special leave to appeal. The Court allowed him to appeal, the point to be considered in the appeal having been thus state in the order granting leave :
"It is urged in support of the petition that the petitioner never denied his liability to refund the money, and in fact he had paid the money back and had put Miss Bhagmal to the proof by making an offer to two emissaries she had sent to him that if she herself came and declared that she had not yet received the refund, he would be prepared to make the payment. The response to the offer was a petition by her in the High Court alleging that Ch. Sardar Ali had been guilty of professional misconduct.
In this proceeding, Ch. Sardar Ali repeated the assertion and produced in witnesses in support.
It was contended that, in the light of the petitioner's submissions no question of professional misconduct arose for exercise of the High Court's jurisdiction under the Letters Patent. The matter was a simple one, of ascertaining whether or not a debt had been satisfied by payment, and for this, a proceeding under the High Court's disciplinary jurisdiction over its advocates was not the proper mode of relief.
The point is of importance, in the particular case, as well as in relation to legal practitioners generally".
It will be apparent from this order that the appellant was not given leave to appeal against the finding of the Special Bench that he had not refunded the fee to Miss Bhagmal. . The arguments before us therefore were confined to the question whether assuming that the appellant had not carried out his undertaking to refund the fee to Miss Bhagmal, the High Court had before it a reasonable cause for the suspension of the appellant. Some subsidiary points, which were not mentioned in the order granting special leave to appeal, were mooted before us, as for instance, that Miss Bhagmal's first complaint having been ordered by Rahman, J. to be filed a fresh complaint was incompetent and that the gravamen of the charge being that the professional misconduct consisted in the appellant's omission to file the appeal and that omission having been satisfactorily explained, the appellant could no be suspended merely on the ground that he had omitted to carry out the undertaking given by him to Miss Bhagmal to refund the fee, but it is obvious that if the breach of the undertaking to refund the money was improper or dishonest and constituted a reasonable cause for suspension, they are of no importance. The order by Rahman, J. that Miss Bhagmal's complaint be filed proceeded on the assumption that the explanation of the appellant that he had not filed the appeal because of the receipt of contrary instructions from Rahmal Ullah, and that the fee had been refunded to Miss. Bhagmal was true. The order was made in Chambers on an office report and decided nothing because Miss Bhagmal was not called upon to admit or contradict the allegation of the appellant. That order was not therefore final order and was not a bar to the subsequent proceedings. In fact it was only when that order was communicated to Miss Bhagmal that she repudiated the appellant's allegation that the fee had been refunded to her. Thus the foundation of the subseA quent proceedings was Miss Bhagmal's complaint that the appellant's allegation as to the refund of the fee was false. On no principle, therefore, Rahman J's order could be held to be a bar the proceedings which resulted in the present order of suspension. As regards the precise nature of the misconduct alleged it is true that the charge against the appellant was that having been engaged to file an appeal he failed to do so and did not refund the fee and the expenses to Miss Bhagraal. The learned Judges have not suspended the appellant for his omission to file the appeal and have based their order solely on the ground that the money paid by Miss Bhagmal was not refunded to her. The charge being a composite charge, if in the circumstances it can be held that the omission to refund the fee and the expenses of the appeal to Miss Bhagmal was a grossly improper conduct, this Court will have no justification to interfere with the discretion of the High Court.
Under clause (viii) of the Letters Patent of the Lahore High Court, an Advocate can be struck off the rolls or suspended from practice for a "reasonable cause" There is no dearth of authority for the proposition that conduct which does not amount to professional misconduct may be a reason able cause for the removal of an Advocate's name from the rolls. Thus a conviction of an offence which involves moral, turpitude or otherwise shows that the advocate is not a fit, person to be an officer of the Court, or other conduct which the Court considers to be reprehensible or unbecoming an advocate, may constitute a reasonable cause for action under clause (viii) of the Letters Patent, These are obvious proposi tions, though Mr. Mahmud Ali displayed some hesitation in admitting there. It may be noticed that while section 13 of the Legal Practitioners Act, after enumerating five specific grounds on which a pleader's name may be removed from the rolls, proceeds to state in clause (f) that action against a Pleader may also be taken "for any reasonable clause" clause (viii) of the Letters Patent does not seek to define or illustrate what reasonable cause is. As early as 18617, it was held by the Court of Queen's Bench. In the matter of Francis Blake (1861 L J Vol, XXXIX (Now Series XXX) 32), that where an attorney of the Court has been guilty of gross misconduct, the Court will interfere 'summarily, although the misconduct does not amount to an indictable offence, and arose in a transaction in which the attorney was not acting in that character. The facts of that case were that one Beevirs having previously known an attorney and employed him as such, informed him that he had some money to invest, on which the attorney himself borrowed it, on the security of his promissory note and the deposit of a mortgage‑deed of an estate in Ireland on which he had advanced a larger sum. The estate coming into the Encumbered Estates Court, the attorney borrowed the deed, in order, as he informed Beevirs, to substantiate his claim on the estate. He afterwards returned the deed, but by this temporary possession of it was enabled to receive the whole of his advance, which he accordingly received and appropriated the whole to his own purposes. He told Beevirs nothing of the matter, but went on for several years paying him interest on the loan. The attorney, afterward, became insolvent, and Beevirs lost the whole of his principle. On these facts the Court suspended the attorney from practising for two years. In delivering judgment Cockburn, C. J. said :‑‑
"I am of opinion that Blake is amenable to the summary jurisdiction of this Court, although the misconduct of which he was guilty did not arise in a matter strictly between attorney and client. I consider we are bound to hold him thus amenable on the broad ground, that when an attorney is shown to have been guilty of gross fraud, although it may not be such a fraud as may make him subject to criminal proceedings, and although the fraud was not committed by hits while the relation of attorney and client was subsisting, or in his character of attorney, yet, still, in such a case, where one, who is an officer of this Court, has been guilty of gross fraud and dishonesty, we are called upon, for the protection of suitors and others who would give credit to him as an attorney, to visit such misconduct with summary punishment. On this principle the present attorney must be held respons ible, for circumstances of gross fraud have been proved against him. Although Beevirs did in the first instance apply to Blake as an attorney still, I think, the transaction ultimately took the form of a mere loan between the two as private persons".
The learned Chief Justice proceeded to point out that in such cases the Court is called upon so to, 'deal with the attorney as to operate as a warning, in order that trustees and others dealing with attorneys may feel that they are protected by the vigilance of the Court". And Wightman, J. said: "It is of the greatest importance that transactions, in which attorneys are parties, should be uberinae fidei, and that those who are accredited as officers of the Court should be above suspicion". The third Judge, Cromption, J., endorsed the statement of law in Archbold's Practice : "The Court will, in general, interfere in this summary way and strike an attorney off the rolls, or otherwise punish him, for gross misconduct, not only in cases where the misconduct, has arisen in the course of a suit other regular and ordinary business of an attorney, but where it has arisen in any other matter so connected with his professional character as to afford a fair presumption that he was employed in or instructed with it in consequence that character", and in Lush's Practice : "For any gross misconduct, whether in the course of his professional practice, or otherwise' the Court will expunge the name of the attorney from the roll". Blackburn, J. agreed, observing : "The misconduct charged in order to induce the Court summarily to interfere, need slot either amount to an indictable offence or arise out of a transaction in which the relation of attorney and client subsists between the attorney and the person against whom toe misconduct is practised", and approvingly referred to the dictum of Alderson B in Stephens v. Hill (10 Mee. & W 28) : "If persons are to be accredited by the Court, it is our duty to watch over and control their conduct".
In Re Hill (Law Rep. 3 Q B 543) also the misdeed charged did not relate to conduct as an attorney and had in fact been committed when the person charged was not on the roll of attorneys. Nevertheless the attorney was suspended from practice, the rule stated by Cockburn, C. J., being : "When an attorney does that which involves dishonesty, it is for the interests of the suitors that the Court should interpose and prevent a man guilty of such misconduct from acting as attorney of the Court". And Blackburn, J., remarked : "We are to see that the officers of the Court are proper persons to be trusted by the Court with regard to the interests of suitors, * * * *. The principle on which the Court acts being to see that the suitors are not exposed to improper officers of the Court. In the present case I adhere to what I think is the effect of Re Blake that although the misconduct is not directly or indirectly connected with his character of attorney, still we must consider what effect that has upon the question of a proper person to be an officer of the Court." Mellor, J., thought it to be extremely dangerous if the Court were to allow an immunity because the man, when the offence was done, was not acting as an attorney". In delivering the judgment of the Board in the Privy Council case, A, a pleader v. The Judge of the High Court of Madras (AIR 1930 P C I44), Lord Thankerton stated that charges of professional misconduct must be clearly proved and should not be inferred from mere ground for suspicion, however, reasonable, or what may be mere error of judgment or indiscretion, and suggested that an appropriate guide may be found in section 13, Legal Practitioners Act, No. XV'III of 1879, under which a pleader or mukhtar may be suspended or dismissed, who is guilty of "fraudulent or grossly improper conduct in the discharge of his professional duty". This case does no more than lay down the rule that where the charge against a legal practitioner is that of "professional misconduct" the misconduct alleged must not only be clearly proved but should also satisfy the requirement that it was a fraudulent or grossly improper conduct in the discharge of professional duty. It should, however, be observed that this authority merely suggests section 13 of the Legal Practitioners Act, as an "appropriate guide" to determine questions of professional misconduct and does not lay down that action against a legal practitioner can only be taken for professional misconduct or that the "reasonable cause" of clause VIII of the Letters Patent cannot be anything else except professional misconduct. That the dictum has to be so construed is clear 'from the earlier case, Shanker Ganesh Dabir v. Secretary of State (A I R 1922 P C 351) where the Board had ruled that the jurisdiction of the High Court to take action against legal practitioners is not confined to acts in professional capacity but may extend to other activities, as for example, organised resistance to payment of tax which entails grave danger to the public peace.
The result deducible from these cases is that disciplinary proceedings may be taken against an advocate if in the opinion of the Court he has been guilty of some misconduct which has a bearing on the question whether he is a fit person to continue to be an officer of the Court and that the misconduct need not be attributable to him while he was acting as an advocate. The degree of the misconduct may influence the Court in considering whether proceedings should or should not be started against him as well as in determining the amount of punishment but misconduct being proved it does not at all affect the Court's jurisdiction to express its disapproval of that conduct. No exhaustive definition can be or has ever been attempted of what may amount to misconduct beyond this that misconduct is conduct that does not become an advocate, conduct which on the part of an advocate is plainly improper. If such conduct is proved, there can be no doubt ,that it would be a reasonable cause for action within the meaning of clause VIII of the Letters Patent. The Short question, therefore, that has to be determined in this case is whether the conduct of the appellant as found by the High Court was or was not improper to a degree that the Court should have taken notice of it..
The High Court has found that the appellant's conduct amounted to professional misconduct. Professional mis‑conduct is only one of the reasonable causes for which an advocate may be suspended from practice. I will show presently that the conduct in question did amount to professional misconduct, but assuming that it did not, it would not justify us to set aside the order of the High Court if on the facts we came to the conclusion that the conduct, though not professional misconduct, was such as was a sufficient reason for the Court to take action. Interference with the order of the High Court merely on the technical ground that the conduct charged ‑ could not be described as "professional misconduct" would certainly not bring this case .within the category of cases where this Court is entitled to interfere with the orders of the High Court on special leave. To be able to reverse the order under appeal what we must first find is that the facts found by the High Court did not amount to a ,*'reasonable cause" within the meaning of clause VIII of the Letters Patent.
I now proceed to consider the question whether the conduct was professional misconduct or was otherwise the reasonable cause for suspension. For that purpose it is necessary to be clear about the facts as found expressly or by necessary implication by the High Court. I may, however, state at once that a mere omission to refund the fee is not always misconduct on the part of an advocate. If an advocate has been engaged for a particular work on an agreed fee and subsequently the client does not wish him to perform that work, the advocate, in the absence of an agreement to the contrary, is not liable to' refund the fee, his only duty in the circumstances supposed being to perform the work 117, conscientiously and to the best of his knowledge and ability in consideration of the fee received. If, therefore, the client does not wish him to proceed with the business, he cannot demand a refund of the fee merely on the ground that the advocate was not required to do the work for which he had been engaged. In the present case, if the appellant had taken up the position that he did not file the appeal, because the client relieved him of the obligation to do so and that he was not, therefore, liable to refund the fee, no question of miscon duct could have arisen, because, as I have pointed out above, a mere omission to return the fee where there ii no liability to refund cannot amount to misconduct. But that is not the position here, because the liability to refund is admitted and in the circumstances of the case was rightly undertaken by the appellant. The appellant was engaged not by Rehamat Ullah but by Miss Bhagmal acting as the agent of Rahmat Ullab. It is admitted by the appellant that when Rehmat Ullah saw him in the List week ;,f February and instructed him not to file the appeal, he had come to know that the interests of Miss Bhagmal came into conflict with those of Rehmat Ullah, because she was asserting to the house in respect of which a right of way was claimed a title hostile to her principle. The fee bad been received by the appellant from Miss Bhagmal and riot from Rehmat Ullah and if the appellant had been informed by Rehmat Ullah, as he admits he was, that in filing the appeal Miss Bhagmal was acting against the interests of Rehmat Ullah, Rehmat Ullah would certainly not have agreed to finance a litigation which was against his own interests. The appellant has given several reasons why Rehmat Ullah did not wish the appeal to be filed. These reasons are mutually contradictory and none of them could have influenced Rehmat Ullah in his decision not to file the appeal. The first reason given is that the appeal was weak on the merits. This obviously is a matter which must have been considered before the appellant undertook to file the appeal and received the fee and expenses. The second reason is that Rehmat Ullah wished to dispose of the house, but it is difficult to understand how the institution of the appeal could have affected Rehmat Ullah's chances to sell the house. The third reason is that Ghulam Muhammad, over whose land a right of way was claimed, had agreed to give another passage for the house. If this was the real reason for not filing the appeal, then the other two reasons were obviously irrelevant. The true reason, therefore, appears to be that the Conflict of interest between Miss Bhagmal and Rehmat Ullah had become more pronounced and the latter did not wish the former to carry on tile litigation on his behalf. Now, if this be the correct position, the appellant, not having filed the appeal because Rehmat Ullah bad instructed him not to do so, was under a clear obligation to refund the money to Miss Bhagmal unless it had been paid by Rehmat Ullah himself through Miss Bhagmal. But as I have mentioned above, the money in the circumstances could not possibly have been paid by Rehmat Ullah, and though Rehmat Ullah now says that the fee which had been refunded by the appellant to Miss Bhagmal was received back by him, there is no assertion by him in his earlier affidavits that he had given any money to Miss Bhagmal. But whatever the reason for not filing the appeal may be, it is not the appellant's case that be was not liable to refund the fee. On the contrary, it is admitted by him that when he was instructed by Rehmat Ullah not to file the appeal he had undertaken to refund the money to Miss Bhagmal because he had received it from her and not from Rehmat Ullah. He says in his evidence : "Rehmat Ullah had asked me not to file the appeal and to refund the money. I told him that be should ask Miss Bhagmal, the petitioner, to come to him for the purpose. She came to me in the third week of February 1954, and got back the money and the papers'". It is, therefore, quite clear from the appellant's own deposition that he bad agreed to refund the fee to Miss Bhagmal from whom he had actually received it.
The appellant asserts that the money was refunded by him, whereas Miss Bhagmal's allegation is that it was not, and' this was the sole issue of fact which was investigated by the High Court and found against the appellant. The true question we have to answer, therefore, is whether an Advocate who had been engaged for a fee to file an appeal, had subsequently been instructed not to do so and, whatever may be the reason, he undertakes to 'return the fee to the person from whom he received it, is guilty of such misconduct as calls for disciplinary action, if he intentionally omits to return the fee, and dishonestly alleges that he has returned the fee. It may be mentioned here that the High Court's finding is not that the appellant had failed to prove that the fee had been refunded. The clear finding for which cogent reasons founded on admitted documents have been given, is that "Ch. Sardar Ali has not paid back the fee, which he received from Miss Bhagmal". In view of this finding, it cannot but be held that the plea taken by the appellant before the High Court, which be attempted to support by affidavits, was dishonest and false. But even if the dishonesty and falsity of the plea be not taken into consideration, the question still is whether an advocate, who for not having been required to perform the work for which he was engaged, undertakes to return the fee to his client, is guilty of gross misconduct if he intentionally does not honour the undertaking, in my opinion, the correct answer to this question is that such conduct does not become an Advocate and that are Advocate who has a different notion of his duties requires to be told by the Court, which exercises disciplinary jurisdiction over him, that this sort of conduct is grossly improper, reprehensible and fraudulent. It would be surprising indeed if in the circum stances of this case the bar ventured to suggest that the conduct of the appellant deserved no censure and that it was quite consistent with the honour and duties of the profession of law.
The Privy Council decision in Thomas Newton v. The Judges of the High Court of North‑West Provinces (8 Moores N.S. 202) is no authority for the proposition that a dishonest breach of an undertaking to return money to a client does not amount to such mala praxis as may form a proper ground for disciplinary proceedings or that an Advocate cannot be said to have acted with malus animus when he dishonestly retains the client's money. To my mind, the conduct of the appellant in not refunding the money, as agreed and, when called upon to explain why he did not do so, in taking up the defence that he had refunded the money satisfies the test of mala praxis and malus animus because I find it impossible to accept the hypothesis that ii in fact no repayment was made the appellant did not know or did not believe that the plea of payment was false or that the plea did not amount to a deliberate refusal to pay. Thus in ‑whatever way one looks at the appellant's conduct it cannot but be described as dishonest and it does not make the slightest difference if the High Court did not expressly state or find what was quite obvious from and implicit in the finding that the appellant had not refunded the money.
I am quite clear in my mind that the conduct of the appellant was misconduct in the course of his professional employment. The appellant was engaged to file and prosecute an appeal. The appeal was not filed because the appellant received. instructions to the contrary. These instructions were given to him by a person who had not originally instructed him to file the appeal and paid the .fee. The circumstances were such that the appellant felt bound and agreed to refund the fee. Until, therefore, he carried out that undertaking he was under a subsisting liability to Miss Bhagmal and relation of client and legal adviser continued until it was discharged by repayment of the fee. The liability to pay arose out of the original engagement because but for that engagement there would have been no liability to repay. The objectionable conduct of the appellant was, therefore, misconduct as an Advocate, who in the case of an Advocate of a High Court, is both counsel and attorney, and thus amounted to professional misconduct. It was conduct which was necessarily referable to his professional engagement an can rightly be described as misconduct in relation to his duties as an Advocate. I cannot accept .the position that after the appellant undertook to repay the fee the relationship between Miss Bhagmal and him became that of .a pure creditor and debtor. Originally, there was no debt, nor was the case one of money bad and received. If we give effect to the contention that whenever the original agreement between a client and a legal practitioner is varied, the no relationship can only be enforced through an ordinary Court by a suit on the contract and the High. Court in the exercise of its disciplinary jurisdiction has no power to demand the practitioner to behave as an officer of the Court and to honour the new agreement, the High Court would be divesting itself of that power which is necessary for it to possess not only to control the conduct of its Advocates but also to protect the interests of suitors. As I have said above, and is other wise clear from the authorities, the Court's jurisdiction in such matters is founded on the necessity to protect the interests of the suitors, actual and prospective, and there can be no doubt that suitors still require the Court's protection and Advocates the Court's vigilance whenever a fresh agreement between an Advocate and client varies an earlier agreement. Even where an Advocate liable to refund the fee to his client executes for the amount promissory note, the relationship of Advocate and client does not come to an end, because the promissory note in the circumstances is to be considered, either a collateral security or a conditional discharge of the original liability which, despite the execution of a promissory note, can be enforced against the Advocate. A contrary view would expose the suitors to, and render the Court helpless against unscrupulous Advocates. It would indeed be a sad day for the Court and the suitors if an Advocate when called upon to explain why he did not behave towards his client like an officer of the Court could oust the Court's jurisdiction o on the plea that his agreement with the client being an agreement to refund the fee the client should go to another Court to sue upon the agreement. ‑ A person who on being enrolled as an Advocate by a Court acquires the capacity and enjoys the oppor tunity of contracting with suitors for professional services cannot be permitted to say to the Court that any complaint arising out of any alleged breach of such contract should not be inquired into by the Court but should be lodged in an ordinary Court for the performance of the contract or for compensation for it breach. The Court is entitled in any such case to say to the Advocate "You made the contract because you were an Advocate of the Court and the Court can require you to behave as Advocates should". It is on this principle that enrolling Courts have always claimed and in law possessed the power to demand from its Advocates full adherence to agreements with, suitors and to punish all breaches, thereof and that is the reason underlying Rule 30 of Order IV, Part I, of the Rules of this Court which provides that disciplinary action may be taken against an attorney for the breach of any undertaking. In the present case ‑the agreement to refund was made by the appellant as an Advocate and the breach of it was a breach of faith with the client, for which disciplinary proceedings could be taken, by the High Court.
The word "fee" in relation to the allegation of refund has been used throughout the proceedings as including ‑the sum of Rs. 32‑8‑0 which was, received by the appellant for the expenses of the appeal. As the appeal was never filed this sum, in any ease a substantial part of it, was never appellant alleges that this amount was refunded Bhagmal together with the fee but the finding of the High Court being that the entire story relating to the refunding of the money is untrue, it must be held that the amount of the estimated expenses of the appeal was converted by the appellant. As regards this money therefore the appellant was clearly guilty of misappropriation and breach of trust, and it cannot for a moment be doubted that for such grave misconduct the appellant could rightly be suspended from practice. Even assuming that the relationship that came into existence between the appellant and Miss Bhagmal was that of a debtor and creditor, the case would be analogous to that in Re Blake, where action against an attorney was held to be justified when he acted improperly in a transaction "which took the form of a mere liability between the two as private persons'".
I can find no conceivable reason to interfere with the order of the High Court and would therefore dismiss the appeal.
‑This appeal by special leave is brought by an advocate of the High Court of West Pakistan, Ch. Sardar Ali, and is directed against an order of that Court whereby Ch. Sardar Ali was held guilty of professional misconduct, and suspended from legal practice for a period of six months. The operation of the order was suspended by this Court after some fourteen days.
The order under appeal was made under Clause VIII of the Letters Patent, which empowers the High Court to remove or suspend from practice an advocate of the Court on reasonable cause. The expression "on reasonable cause" is wider in its meaning than "professional misconduct". In the present case, however, the charge against the advocate upon which the order by a Special Bench of three Judges proceeds was one of "professional misconduct". The order of the Special Bench opens with the following words :‑
"This is an allegation of misconduct against Ch. Sardar Ali, Advocate,"
It ends as follows :‑
"For these reasons we hold that Ch. Sardar Ali has not paid back the fee which he received from Miss Bhagmal and that consequently he was guilty of professional misconduct."
In A, a Pleader v. The Judges of the High Court of Madras (A I R 1930 P C 144.), the Judicial Committee defined the expression "professional misconduct" in certain terms taken from the Legal Practitioners Act, viz., "fraudulent or 'grossly improper conduct in the discharge of professional duties". Two elements are disclosed as necessary, ingredients of the offence. Firstly the conduct must be in the discharge of professional duties. Secondly it must be conduct involving moral turpitude, for that is the least vice which can justify the description of "fraudulent or grossly improper" as applied to the Act. We propose to consider the conduct charged against Ch. Sakdar Ali in the light of this definition.
The facts are as follows. A suit relating to a right of passage in respect of a house belonging to one 'Subedar Rahmatullah was instituted by the latter in a Civil Court in Gujranwala. During its pendency, the plaintiff was obliged to appoint an agent to conduct it, and for this purpose he issued a special . power‑of‑attorney in favour of his sister, Miss K. B. Bhagmal. The suit was dismissed and an appeal before the District Judge of Gujranwala also failed. Miss K. B. Bhagmal decided to file a further appeal in the High Court, and on the 29th January 1954, she met Munshi Abdur Rahman, clerk to Ch. Sardar Ali, and engaged the latter to file an appeal in the High Court, paying ,Rs. 100 as counsel's fee and Rs, 32‑8‑0 for Court fee and miscellaneous expenses.
Ch. Sardar Ali was previously acquainted with Subedar Rahmatullah. In the first week of February 1954, Subedar Rahmatullah met him and instructed him not to file the appeal. Subedar Rahmatullah explained in evidence that he did so because Miss K. B. Bhagmal was asserting au adverse right to the property, and also because he thought that "the case was very weak". A further reason was that he wished to sell his house. It seems that earlier. in 1938, Subedar Rahmatullah had executed a document which purported to declare that the house belonged to three of his sisters. He did so at the instance of Miss K. B. Bhagmal. At that time, he was a bachelor and it was made clear by his sister that the document would not be used unless he died without issue. Since then he had got married and had children, and his intention was, by the sale of the house in Gujranwala, to obtain funds to build a house in Lahore for his wife and children.
This was opposed by his sisters, including Miss K. B. Bhagmal, who took it ill that, at the same time as he directed Ch. Sardar Ali not to file the appeal in the easement case, he cancelled the special power‑of attorney in her .favour. Subedar Rahmatullah went to the length of publishing a notice of the cancellation in a daily newspaper of Lahore called "Asar". The notice appeared in the issue of the paper dated the 10th February 1954.
On the 16th April 1954, Miss K. B. Bhagmal filed a petition in the Lahore High Court stating the facts concerning the litigation. The petition said that "two months have passed but no step hap so far been taken to file the appeal in the Court," and added that "the fact have come to light that no step has been taken and that the money of the petitioner has been misappropriated." Describing such conduct by a legal practitioner as "actionable", the petitioner prayed that an inquiry be held into the conduct of Ch. Sardar Ali which had led to the appeal becoming time‑barred on account of delay and negligence by him. A copy of the complaint was sent to Ch. Sardar Ali, who replied on the 20th May 1954, saying that the complaint was absolutely baseless and to Mst. K. B. Bhagmal's special power‑of‑attorney had been cancelled ; that he bad been instructed by Subedar Radmat ullah not to file an appeal ; that all the papers in the came lead been taken back ‑by Mst. Bhagmal and that the fee had been refunded to her in the presence of one Subedar Fateh Din. The affidavits of Subedar Rahmatullah and Subedar Fateh Din were attached. It was finally stated that Miss K. B. Bhagmal had been encouraged to make the complaint only because she had in her possession a receipt for Rs. 100 issued in his absence by his clerk. An affidavit by Abdur Rahman was also attached to Ch. Sardar Ali s letter.
On perusal of these papers, the learned Chief Justice of t to Lahore High Court directed on the 25th May 1954, that the papers should be filed. On the 28th August, Miss K. B. Bhagmal sent a further application supported by to affidavits of her sister Miss F. Bhagmal and a friend of the latter Miss Parshad. In be application, Miss K. B. Bhagmal denied that any money had bi en refunded to her by Ch. Sardar Ali. She denied also having knowledge regarding the cancellation of her power‑of‑attorney or its publication in the "Asar". She asserted that Ch. Sardar A1. had never informed her that he had been instructed not to file it) appeal. As regards the affidavit of Subedar Fateh Din, it was described as "absolutely false" and it was further said that in reply to her complaint, Ch. Sardar All "produced false evidence to show that he had paid back the money". It is curious to note however that a doubt appears on this point from the affidavits with which Miss K. B. Bhagmal's complaint was supported. These affidavits state that Miss F. Bhagmal and Miss Parshad went to the house of Ch. Sardar Ali at his request to. talk about her case. Miss F. Bhagmal's further statement is that Ch. Sardar Ali asked her to send for her sister (Miss. K. B. Bhagmal) "so that she might take back the fee which he was prepared to refund" On the other hand, Miss Parshad's statement of what Ch. Sardar Ali said is as follows:
"Please sent for your sister and if she denies the refund of the fee, I am prepared to pay it".
It is significant that up to this stage nothing had been said in the proceedings by Ch. Sardar Ali regarding his talk with Miss F. Bhagmal and Miss Parshad.
The complaint of Miss K. B. Bhagmal dated the 28th August 1954, was placed before the Administration Judge who directed that it should go to the Division Bench in accordance with the rules, and commented as under on the facts :‑
"But it is noteworthy that the Advocate does not produce any receipt of refund, although he himself gave a receipt to the petitioner.
It is not Miss Bhagmal's case that she wants the money back. Her case seems to be that the counsel has colluded with her brother and not filed the appeal contrary to her instructions. Why should he follow her brother's instructions"
The papers being laid before the Division Bench, an order was made that the case should go before a Bench of three Judges and that the Advocate‑General should draw up a statement of charges. The following points were . noted in the order :‑
(1) That the limitation for filing the appeal expired on the 8th February 1954, and notice in the "Asar" cancelling Miss K. B. Bhagmal's special power‑of‑attorney appeared on the 10th February 1954.
(2) That Miss Bhagmal had produced a document showing that Subedar Rahmatullah's interest in the suit house bad terminated in 1938, from which it appears that although the litigation was ostensibly on behalf of her brother, it was, really in Miss K. B. Bhagmal's own interest.
(3) That Miss Bhagmal had declared that the relations between herself and her brother had become strained because of the latt4r having decided to sell the house. The learned Judges thought that "this may account for her brother's collusion with the counsel".
(4) That Ch. Sardar Ali s, statements and affidavits did not make out a clear case and furnished no explanation for not obtaining a receipt at the time of the refund, as was to be expected in a contentious matter.
Despite the reference to "collusion" contained in both these orders, the charge framed by the. Advocate‑General was confined to two allegations, viz., (a) that no appeal was filed and (b) the fee was not refunded.
A very lengthy answer was furnished by Ch. Sardar All in reply to these charges. It covers ten pages of the printed paper book, and states the facts of the case from his point of view more than once. In addition, certain technical pleas were also taken. The first such plea is raised upon the order of the 25th May 1954, directing that Miss K. B. Bhagmal's original application should be filed. It is said that the order of the Administration Judge directing that the case be placed before a Division Bench, and the Order of the Division Bench directing an inquiry before a Special Bench of three Judges were both passed ex‑parte and without notice to Ch. Sardar Ali ; and that the prescribed procedure had thus been violated. These contentions have been repeated before us by Mr. Mahmud Ali, though not with any force. While, in view of the order of the learned Chief Justice, dated the 25th May 1954, Miss K. B. J3hagmal's application of the. 28th August 1954, must be regarded as" to the nature of a fresh complaint, there was no material prejudice to Ch. Sardar Ali from the failure of issue of notice to him before the case was placed, firstly, before the Single Judge and later before the Division Bench. For Ch. Saidar Ali was already aware of the imputations against him; and as regards the conduct of the enquiry, from the stage at which the charges were preferred, he neither has, nor can have any complaint of denial of opportunity to defend himself.
It was also pleaded that in view of the order of the 25th May 1954, to which reference has just been made, the second application did pox lie. The plea was not pressed with any great force, and is obviously without substance since the earlier order was in no sense a determination of the allegation of the professional misconduct, in the manner, required by the law.
On the merits the arguments urged were as follows. It was contended that what attracted the attention of the learned Judges in the first instance was the allegation of collusion between Ch. Sardar Ali and Subedar Rahmatullah. The learned Single Judge had put the question "Why should he follow her brother's instructions" It was suggested that this observation was only explicable on the basis that it bad not been made clear that Subedar Rahmatullah was the true party, and Miss K. B. Bhagmal was only a special attorney appointed by him for the purposes of the case. The impression of collusion appeared also in the order of the Division Bench lay which an enquiry upon charges was ordered. There is specific mention of "her brother's collusion with counsel" in the order. Although by this time, it had been made clear that Subedar Rahmatullah was the true party, the learned Judges had been impressed by perusal of the document of 1; 38, and were inclined to regard K. B. Bhagmal as owner of a substantial interest in the suit‑houses. The charges however made no mention of collusion at all and in the course of the enquiry no reliance was placed upon the document of 19313 for assertion of Miss K. B. Bhagmal's possession of any direct interest in the suit‑property. The charge merely said that no appeal had been filed, and the fee had not been refunded. The learned Judges confined their enquiry to the latter allegation, as will appear from the following sentence of their order :‑
"The sole question here is whether the fee was refunded".
It was obvious that the refund of the fee could not be made conditional upon the appeal not being filed or vice versa. It was made‑clear by the evidence of Subedar Rahmatullah that he had categorically directed Ch. Sardar Ali not to file the appeal, and as to the fee, he asked for a refund, since he had himself given the amount to Miss K. B. Bhagmal in the first instance. Ch. Sardar Ali had, from the outset, agreed to make the refund. It was clear that, in the circumstances, the return of the money was consequential upon the decision by Subedar Rahmatullah, and had become disassociated from any consideration affecting the filing or not filing of the appeal.
As regards the denial by Miss K. B. Bhagmal that she had received the money back, stress was laid upon the circumstances, firstly, of her supersession in relation to the case, and secondly, of the repudiation of her personal claim to the house, coming at the same time, as affecting her attitude. The conclusion of tae High Court rested, not so much, on the evidence, as on inferences from three circumstances, viz.:
(1) That when Cu. Sardar Ali received a registered letter from Miss. K.B. Bhagmal asking to informed of the date on which her civil appeal was filed in the High Court, and for particulars regarding the criminal case, he sent no reply ;
(2) That when making the refund to Miss K. B. Bhagmal, Ch. Sardar Ali did not obtain a receipt from her ;
(3) That in the state of relations between Miss K. B. Bhagmal and Subedar Rahmatullah it was improbable that she would go to Subedar Rahmatullah to pay back money to him received from Ch. Sardar Ali. .
Mr. Mahmud Ali urged and attempted to show that the inferences drawn by the High Court were not the most reasonable inferences which the facts could sustain. Finally, he contended that even if the finding reached by the High Court were accepted, there was nothing shown by way of grossly improper or fraudulent conduct such as could justify the conclusion of "professional misconduct".
As the further arguments in the case proceeded on the assumption underlying the last‑mentioned argument, it is desirable that we should not review the evidence in this judgment. Before proceeding to examine the arguments, however, we think it will be useful to mention an early case from India before the Privy Council, via., Thomas Newton v. The Judges of the High Court, North‑Western Provinces (8 Moore s P C Cas. (New Series) 202). Thomas Newton was a barrister who bad been suspended from legal practice, upon findings of professional misconduct. These findings were reversed by the Privy Council parlay on considerations arising out of the evidence, which are not relevant to the present case, and partly on grounds of principle, affecting the question what is professional mis conduct. In the judgment of Sir James Colvile, there are two statements of principle which we consider it useful to reproduce here. The first passage reads as follows :‑
"Of all but two of the charges embraced in the Order of the 13th of August 1870, he was also acquitted, the Court being of opinion, that though the conduct imputed to Mr. Newton by those charges may have been inconsistent with the rules and traditions which regulate the conduct of Barristers in this country, and may not have been altogether unobjectionable even in India ; it did not amount to that mala praxis on which the Court, having regard to the position and functions of an Advocate in the North‑West Provinces could fairy found any proceeding of a penal character".
The second passage occurs towards the end of the judgment. It reads as follows :‑
"If the High Court had found upon sufficient evidence that Mr. Newton had advised Mrs. Saunders to make the indorsement as Administratrix, knowing that she had no title, or a doubtful title, to obtain the grant of Letters of Administration, their Lordships would have felt that the sentence upon Mr. Newton ought to be confirmed. But the finding of the High Court negatives this knowledge, and upon this finding of the High. Court, their Lordships feel that, although in this matter Mr. Newton has been guilty of a grave irregularity, which, in their opinion, is well deserving of censure, he has been acquitted of having acted with the malus animus which is a necessary ingredient in every fraudulent act, and, therefore, that his conduct, though censurable, does not bear the character which the heavy sentence passed upon him would stamp upon it".
We cite these passages in order to emphasise that what it is necessary to find is something of a gross or evil nature, without which no conclusion of "professional misconduct" can be reached In the precedent case, "conduct inconsistent with the rules an] traditions which govern the conduct of barristers", and even the commission of a "grave irregularity" were regarded as insufficient to constitute "professional misconduct."
Here no irregularity or unsuitability of behaviour, in relation to the acceptance of the liability by Ch. Sardar Ali, can possibly be found.
It remains now to consider whether the finding of the High Court that Ch. Sardar Ali did not refund the fee is a mala praxis of the kind" upon which the Court "could fairly found any proceeding of a penal character" against him. It seems to that in pith and substance, the, proceeding in the High Court involved no allegation of any "malus animus which is a necessary ingredient in every fraudulent act" or any allegation of gross impropriety. By the gradual elimination of all imputations of collusion, the matter in dispute had been reduced of the simple question whether the fee had been refunded. If it be supposed that the liability to repay the fee had become disassociated from the case and rested almost wholly upon its acceptance by Ch. Sardar Ali after his connection with the case had, to all practical intents and purposes, been terminated, it would seem difficult to avoid the impression that the learned Judges allowed themselves to become involved in determining the central question in a case of simple debt.
We cannot conceive that the high jurisdiction conferred upon the High Court in relation to its Advocates, by Clause. VIII of the Letters Patent could be intended even in the remotest degree, to be utilised for the resolution of such matters. But it has been argued before us that 'the misconduct lies in the raising by Ch. Sardar Ali of a false plea of payment in the case. We must point out at once that there is a clear distinction between a judicial finding that a certain plea, based on fact, is not established, and a conclusion, judicial or otherwise, that the plea was falsely taken. For the latter result, it is necessary that there should be a finding that the person taking the plea knew it to be false, or did not believe it to be true. Certainly, the mere fact that the plea failed' at the trial is not a sufficient ground for declaring that it was false, much less that it was false to knowledge or that it was not believed to be true. Nothing to support the latter view is to be found in the judgment under appeal.
Therefore, even accepting the finding of the High Court as it stands, in the absence of any conclusion by that Court that the plea was false to knowledge or was unsupported by belief, nothing of moral turpitude or malus animus has been found, which is a necessary condition of the taking of penal action against the Advocate. For these. reasons, we would allow the appeal, and in so doing, we leave to express our regret that we have not been able to accept the view of the case which has commended itself to the Chief Justice.
‑On the second complaint of Miss K. B. Bhagmal to the High Court, on which action was taken, the Administration Judge made the following order, by which he referred the complaint to a Division Bench for disposal:‑
"But it is also noteworthy that the Advocate does not produce any receipt of refund, although be himself gave a receipt to the petitioner.
It is not Miss Bhagmal's case that she wants the money back. Her case seems to be that the counsel has colluded with her brother and not filed the appeal contrary to her instructions. Why should he follow her brother's instructions "
It may be stated here that as a matter of fact it was not the appellant who gave the receipt,; that it was his clerk who received the money and gave the receipt to his absence.
The charge, however, as later framed against the appellant and which he was called upon to answer, was as follows:
"That on the 29th January 1954, you were engaged by Miss K. E. Bhagmal; Christian, resident of Gakhar, on behalf of her brother Subedar Rahmat Ullah, who had appointed her as his special attorney, to file a civil appeal in the High Court of Judicature at Labore, against the judgment and decree passed by the District Judge, Gujranwala, on the 29th October 1953 in the case re : Subedar Rahmat Ullah v. Ghulam Muhammad relating to a right of passage ;
That on the same date you had received from her Rs. 1100 as your fee for filing the appeal and Rs. 32‑8‑0 as copying and Court‑fee expenses ;
That you did not file any appeal in the High Court, nor did you refund the fee and Rs. 32‑8‑0 to Miss K. B. Bhagmal.
That since the above constitutes professional misconduct, you are called upon to should cause why you should not be suspended or removed from practice."
It would thus appear that the gravamen of the charge was the failure of the Advocate to file the appeal in the High Court, in spite of the, fact that he bad been paid his fees and costs, and incidentally the failure to refund the fee.
The appellant satisfactorily proved at the inquiry that he refrained from filing the appeal on the express instructions of his client Subedar Rahmat Ullah ; and although he stated that he had refunded the fee, he said he was still prepared to pay back the money. If Miss Bhagmal denied having received the money and saw him. It may be noted here that Miss Bhagmal did not see him after that and never categorically asked for the refund of the money. As the plea for not filing the appeal put forward by the appellant has been accepted by the High Court, the only fact found against him, and for which he has been punished, appears to be the mere failure to refund the fees and costs. On the facts that Miss Bhagmal never cate gorically demanded re‑payment of the money and that the Advocate was still prepared to refund the money, to my mind the mere failure to voluntarily pay back the money does not appear to amount to professional misconduct on the part of the Advocate, for which he has been punished. If the High Court relied on any other circumstance, which perhaps it did, besides the men non‑payment of the money, it was open to the High Court to punish the Advocate for any reasonable cause other than professional misconduct. But the charge should have been either amended or such circumstance brought out in a fresh charge in order to afford an opportunity to the Advocate to meet the charge. As this was not ‑done, in my opinion the‑order of punishment is unsustainable and is liable to be set aside.
In accordance with the view of the majority, the appeal is allowed. There will be no order as to costs.
A. H. Appeal allowed.
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