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Civil Appeal No. 5 of 1960, decided on 16th November 1960

(On appeal from the order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 20th February 1959, in Miscellaneous Petition No. 14 of 1959).

High Court may make inquiry before it "summarily rejects" complaint.

The expression "rejects summarily" cannot have any meaning more precise than of rejection in limine, and there is nothing in the relevant law to require that the High Court should in such cases act merely upon what appears in the complaint, and should not inform itself, by the means within its powers, of the essentials of the matter, in order to decide whether the complaint should be further proceeded with.

-Granted to consider whether conduct of Advocate amounted to professional misconduct in circumstances of case-Constitution of Pakistan (1956), Art. 160.

Advocate deliberately omitting to implead party as defendant in order to facilitate obtaining of consent decree by avoiding possibility of such party raising objections based upon a decree already obtained by such party-Conduct disapproved-Advocate's duty as Officer of Court to do nothing consciously by act or omission which might mislead Court-legal Practitioner Act (XVIII of 1879), S. 13-[Maharaj Krishan Bhandari v. The Advocates' Committee P L D 1957 P C 66 considered].

Professional misconduct-Advocate representing tenant, and A, a co-sharer landlord as pro-forma defendant, in ejectment proceedings, tenant taking plea that he was attorned to A---Later Advocate filing ejectment proceedings on behalf of A against tenant who confessed judgment-Advocate's proceeding though unusual does not amount to professional misconduct-Legal Practitioners Act (XVIII of 1879), S. 13.

-Plaintiff not guilty of turpitude or sharp practice in obtaining, for protection of his rights, consent decree against persons prepared to concede his rights-Civil Procedure Code (V of 1908), O. XXIII, r. 3.

Muhammad Shafi Advocate Supreme Court instructed by Muhammad Nazar Khan Attorney for Appellant.

Mahmud Ali Senior Advocate Supreme Court (Miss R. S. Qari Advocate Supreme Court, with him) instructed by Siddiq & Co. Attorneys for Respondent.

Date of hearing : 4th November 1960.

This is an appeal by one Faizullah Khan, and is of very unusual nature, Faizullah Khan had reported to the High Court that the respondent Pir Mukamal Shah, an Advocate of Mardan, had been guilty of professional misconduct. Faizullah Khan had filed suits against five persons alleging that they were tenants of houses which were a jointly owned by himself and other persons, including one Abdul Haque. In those suits, Pir Mukamal Shah had been engaged as counsel for the defendants, and he had also acted as counsel for the aforesaid Abdul Haque who had been impleaded as a pro forma defendant without cause shown. The fact was that in each case, the tenant had attorned to Abdul Haque as his landlord, and this was made clear by the tenants as well as by Abdul Haque in their respective written statements, which all bore the signature of Pir Mukamal Shah. The suits were tried and were decreed, a finding being given by the Court of the Sub-Judge at Mardan that the plea of the defendants that they were holding the suit-houses under Abdul Haque was wrong. This decision was announced in each case on the 26th of July 1958, and on the 19th September 1958, Faizullah Khan, the decree-holder instituted applications for execution by ejectment. On the 16th September 1958, Abdul Haque filed fire separate suits against the same tenants in respect of the same houses, claiming that they were tenants under him. No mention was made in the plaint of the claim of Faizullah Khan in respect of these houses, or of the fact of there being a decree in existence in favour of Faizullah Khan on the footing that the tenants were holding the houses under him. In these cases, the tenants who were the only defendants appeared on the 4th October, 1958, and confessed judgment whereupon decrees were awarded in favour of Abdul Haque for their ejectment. Thereafter, Abdul Haque actually succeeded in obtaining possession of the houses, although it seems that in the meantime Faizullah Khan's execution had also proceeded to the point of his being placed in possession, possibly in symbolical possession. Later, Faizullah Khan raised an objection in Abdul Haque's execution proceedings, and succeeded in ousting him and himself gaining possession of the suit-houses.

It should be mentioned that on the 15th September 1958, one day before the filing of the suits by Abdul Haque, appeals had been filed against each one of the decrees obtained by Faizullah Khan, and these were pending during the entire proceedings in the fresh suits, but on the 11^th December 1958, the appellants appeared before the Senior Sub-Judge at Mardan and withdrew their appeals, which were accordingly dismissed. One day before the date fixed for the hearing of the appeals, that is to say on the 10th December 1958, Faizullah Khan filed the application out of which this appeal arises before the High Court for action to be taken against Pir Mukamal Shah under the Legal Practitioners Act. The first charge against him was that he had changed sides in the later suits, since he bad appeared as counsel for the tenants in Faizullah's suits, and later had appeared as counsel against the tenants in the suits brought by Abdul Haque. It was next said that the suits which he had instituted on behalf of Abdul Haque were collusive suits and were brought in order to harm the interests of Faizullah. Finally, it was said that the respondent had deliberately not made Faizullah a party in the second set of suits, with intent to deceive the Court.

The replies made by Pir Mukamal Shah were as follows :-

(1) that there was no conflict of interest between Abdul Haque and the five tenants, and therefore there was no question of changing sides ;

(2) that if there was any collusion in Abdul Haques' suits between Abdul Haque on one side and the tenant-defendants on the other, he, the Advocate, was not a party thereto ; and

(3) that Faizullah was not impleaded in the second set 'of suits because he had not yet executed his decrees or taken possession of the houses and again, the suits filed by Abdul Haque were based on his separate possession of the houses in the capacity of a co-sharer, so that he could eject the tenants without impleading the other co-sharers, and finally that even if the suits had been decreed, they would have been without legal effect upon Faizullah.

These replies were given by the Advocate, as a result of a notice sent to him by the High Court, and thereafter the case was heard by a Division Bench of the High Court. It was contended before us by Mr. Muhammad Shafi for the appellant Faizullah that these proceedings, although they ended in rejection of the complaint, cannot be regarded as a summary rejection by reason of the enquiry held by the High Court, and that under section 10, subsection (2) of the Bar Council's Act, there being no summary rejection, the High Court was bound to refer the matter either to the Bar Council or after consultation with the Bar Council to a District Judge, for enquiry. We do not find any force in this argument. The expression "rejects summarily" cannot have any meaning more precise than of rejection in limine and there is nothing in the relevant law to require that tire High Court should in such cases act merely upon what appears in the complaint, and should not inform itself, by the means within its powers, of the essentials of the matter, in order to decide whether the complaint should be further proceeded with.

The High Court rejected the application of Faizullah on the following grounds :-

(1) that the action of not impleading Faizullah as a party in the second set of suits was that of Abdul Haque upon whom the consequences, if any, should fall, but the "counsel-can certainly not go against his clients' wishes and implead a certain person as a party in the case "; and

(2) that as to the counsel having changed sides, it was for the tenant-defendants to object, and Faizullah had no right to do so.

On these findings, it was held that no case of professional misconduct had been made out against Pir Mukamal Shah and the application was rejected. Faizullah being dissatisfied with this order petitioned the Supreme Court for leave to appeal, and leave was granted.

"to consider the question whether conduct of the respondent amounted to professional misconduct in the circumstances of the case."

We have heard Mr. Muhammad Shafi for the appellant and Mr. Mahmud Ali for the respondent at length.

As to the charge of changing sides, it seems clear that in the first set of suits, there was no conflict of interest between the tenant-defendants and the so-called pro forma defendant Abdul Haque. Again, the result of the suits filed by the latter against the tenant-defendants on the 16th September 1958, clearly shows that in these suits there was no conflict of interest between the parties thereto. In the circumstances although such a proceeding is somewhat unusual among lawyers, we consider that the High Court was right in holding that no professional misconduct was involved. This conclusion is sufficient also to cover the second charge brought against the Advocate. There is nothing of turpitude or sharp practice in a person obtaining for the protection of his rights, a consent decree against persons who are prepared to concede his rights in his favour by reason of harmonious relations. But there was also the third ground, namely, the failure to implead Faizullah as a party in the second set of suits as to which the High Court has expressed no opinion. It is difficult to avoid the impression that there was here a design to facilitate the obtaining of the aforesaid consent decrees, by avoiding the clear possibility that Faizullah if impleaded would[ raise objections based upon the decrees already awarded to him, and thus hamper the fulfilment of Abdul Haque's purpose. The view of the High Court that the counsel was bound to act as required by his client is correct so far it goes, but it does not appear to take sufficient account of the duty of the counsel appearing in a case before a Court which arises from his position as an officer of that Court. The obligation is incumbent upon a counsel to do nothing consciously, by act or omission, which might mislead the Court in some matter touching the exercise of its jurisdiction and powers in the case. It seems that as a result of all the proceedings which have been taken, Faizullah's decrees have eventually prevailed, and he has succeeded in gaining possession of the houses in question, without any opposition from Abdul Haque. It may be that the method adopted by Abdul Haque was designed to safeguard his own position as a landlord, against the tenant-defendants who admitted that they attorned to him, in case the appeals which had been filed by the tenants against Faizullah's decrees should succeed. It may also be that the somewhat unusual methods adopted in these two cases were inspired by a wish to get rid of the tenants by a more smooth and effective mode than might have been possible if Abdul Haque had chosen to confine his effort to establish his position in relation to his tenants, within the proceedings in Faizullah's suits. On the whole, it does not appear that anything of injustice has resulted from these proceedings, and it may well be that the idea was to secure the justice required, by the smoothest method, but the fact remains that having knowledge of Faizullah's decrees against the tenant-defendants, in respect of the same houses, Pir Mukamal Shah owed a duty to the Court in which he presented Abdul Haque's suits, to inform that Court of the existence of the decrees.

We have considered with care whether the order of the High Court rejecting Faizullah's petition should be overruled, and the case remanded for the holding of any enquiry as provided by the Bar Councils Act. In this connection, our attention has been invited to the case of a lawyer named Bhandari which went up before the Privy Council from Kenya Colony, the decision being published as Maharaj Krishan Bhandari v. The Advocates Committee (P L D 1957 P C 66). That was a case where in moving a petition for a writ, the counsel Bhandari had failed to make mention of certain earlier proceedings in a different mode to secure the same relief, and one principle which was attracted was that a party seeking a writ must make a full and true disclosure of all facts within his knowledge. It had been found in that case by a Committee of the Kenya Bar that Bhandari had an intention to deceive when he defaulted in his duty to make full disclosure. The Privy Council upheld this finding, but we observe that the case ended in a mere admonition to the counsel.

In the case before us the default appears quite plainly without the necessity of further enquiry, and we have asked ourselves whether it is necessary that the respondent should be put to the difficulty and harassment of an enquiry under the specific provisions of the law. In our view that can give no satisfaction to anyone, even perhaps including the appellant Faizullah, for it has been expressly stated in writing by the respondent that the petition has been inspired and is being financed by another person who has become inimical to him because he reported against him that he was illegally in possession of evacuee property. However that may be, if the end of an enquiry such as the law requires

be merely an admonition, then it seems to us that what we have already said in this judgment should be a sufficient indication to Pir Mukamal Shah that he should avoid such behaviour in the course of his future practice.

With these observations we dismiss this appeal and leave the parties to bear their own costs.

A. H.

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