Nand Lal Misra Vs Kanhaiya Lal Misra[SC 1960 April ]

Keywords: Preliminary Inquiry in Maintenance Case

Capture

AIR 1960 SC 882 : (1960) 3 SCR 431 : (1960) CriLJ SC 1246

(SUPREME COURT OF INDIA)

Nand Lal Misra Appellant
Versus
Kanhaiya Lal Misra Respondent

(Before : K. Subba Rao And J. C. Shah, JJ.)

Criminal Appeal No. 64 of 1958,

Decided on : 01-04-1960.

The procedure does not contemplate a Preliminary enquiry into paternity of child—Summons can be issued by Magistrate without any preliminary inquiry.

The basis of an application for maintenane of a child is the paternity of the child irrespective of its legitimacy or illegitimacy. The section by conferring jurisdiction on the Magistrate to make an allowance for the maintenance of the child, by necessary implication, confers power on him to decide the jurisdictional fact whether the child is the illegitimate child of the respondent. It is the duty of the court, before making the order, to find definitely, though in a summary manner, the paternity of the child. Sub section 6 of Section 488 is mandatory in form and in clear terms it prescribes the procedure to be followed by the Magistrate. Under that sub section, all evidence under that chapter shall be taken in the presence of the husband or the father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons cases. The word “all’ with which the sub section opens emphasizes the fact that no evidence shall be taken in the absence of the father or his pleader. It is conceded that Sections 200 to 203 of the Code do not apply to an application under Section 488 of the Code. As the proceedings are of a civil nature, the Code does not contemplate any preliminary enquiry. When the terms are clear, there is no scope for drawing inspiration from other sections of the Code, or for deviating from the procedure prescribed to fill up an alleged lacuna. It is said that if no preliminary enquiry be held, even in a blackmailing action notice will have to go to the respondent. There is nothing incongruous in this position; for, if a suit is filed in a Civil Court for a decree for maintenance by a child against the alleged putative father, summons will go to him without any preliminary enquiry.

It appears to us that notice to the respondent is in the interest of both the applicant as well as the respondent while it enables the respondent to be present when evidence is taken against him, it lightens the burden of the petitioner, for an honest respondent may admit his paternity of the child, if that was a fact and may contest only the quantum of maintenance. We, therefore, hold that Section 488 of the Code does not contemplate a preliminary enquiry before issuing a notice, but lays down that all evidence under that Chapter should be taken in the presence of the respondent or his pleader indicating thereby that one enquiry only should be held after notice.

Counsel for the Parties:

Mr. N. C. Sen, Advocate, for Appellant

Mr. C. K. Daphtary, Solicitor-General of India and Purshottam Tricumdas, Senior Advocate (M/s. G. C. Mathur and C. P. Lal, Advocates, with them), for Respondent.

Judgment

Subba Rao, JThis appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad rejecting the reference made by the learned Sessions Judge under S. 438 of the Code of Criminal Procedure.

2. The appellant is a minor and lives under the guardianship of his mother, Smt. Gita Basu. On September 14, 1955, the appellant, through his mother, filed an application under S. 488 of the Code of Criminal Procedure (hereinafter referred to as the Code) in the Court of the City Magistrate, Allahabad, praying for an order against the respondent, Advocate-General, Uttar Pradesh, Allahabad, for maintenance alleging that he is his putative father. Without giving notice to the respondent, the Magistrate posted the petition for evidence on September 20, 1955. On that date, the appellant’s guardian was examined and she was also cross-examined by the Magistrate at some length. After she was examined, the Magistrate directed her to produce any further evidence she might like to lead under S. 202 of the Code and, for that purpose, he adjourned the petition for hearing to September 26, 1955, on which date on police constable was examined and the learned Magistrate made the endorsement that the applicant said that she would examine no other witness. On September 27, 1955, the appellant filed a petition before the Magistrate stating that S. 200 of the Code had no application and that no enquiry need be made before issuing notice to the respondent. If, however, the Court treated the application as a complaint, the applicant asked for time to adduce further evidence in support of the application for maintenance. On that petition the learned Magistrate made the endorsement “lead the further evidence, please, if you like”. On October 6, 1955, the guardian of the appellant examined one more witness. On that date, the learned Magistrate made in the proceeding sheet the endorsement “no further evidence to be led at this stage.”

3. On October 10, 1955, the learned Magistrate made an order dismissing the application. He agreed with the petitioner’s contention that Ss. 200 to 203 of the Code did not apply to the application for maintenance; but he expressed the view that he should be satisfied that the petitioner had a prima facie case before he issued notice to the respondent. He then proceeded to consider the evidence and came to the conclusion that he was not satisfied that the respondent was the father of Nand Lal, and on that finding he refused to issue notice of the application to the respondent, and dismissed the application. The appellant filed a revision against that order of the learned Magistrate to the Sessions Judge Allahabad. The learned Sessions Judge, after considering the materials placed before the Magistrate, came to the conclusion that it was a fit case in which the Magistrate ought to have issued summons to the respondent under sub-s. (6) of S. 488 of the Code. He submitted the record to the High Court of Judicature at Allahabad recommending that the order passed by the Magistrate be set aside and that the Magistrate be ordered to proceed with the application in accordance with law. The reference came up for hearing before Chowdhry, J., who, on the analogy of other sections of the Code held that the Magistrate in holding a preliminary enquiry acted in consonance with the general scheme of the Code and that, therefore, the order dismissing the application was not vitiated by any illegality or irregularity. He observed that it was conceded by the appellant before the Magistrate that the Magistrate could hold a preliminary enquiry and that, therefore, it was not open to the appellant to question its propriety. He also found that every opportunity was given to the guardian of the appellant to lead such evidence as he desired to produce and that, therefore, the appellant was not prejudiced by the alleged irregularity. On the maintainability of the reference, he held that the finding arrived at by the learned Magistrate was one of fact on the materials placed on the record and, as the Magistrate did not act perversely or in contravention of some well-established principles of law or procedure, the learned Sessions Judge should not have made the reference. The learned Judge finally pointed out that the proceedings were only summary in nature and that they did not deprive the appellant of his right to seek remedy, if any, in a civil court. In the result, the reference was rejected. The appellant by this appeal questions the correctness of that order.

4. Learned counsel for the appellant contends that the learned Magistrate followed a procedure not contemplated by the Code of Criminal Procedure and that in any event he conducted the enquiry in a manner which, to say the least, was unjust to the appellant.

5. The learned Solicitor-General, appearing for the respondent, supported the procedure adopted by the Magistrate and also the finding arrived at by him. He further contended that the appellant in the High Court as well as before the Magistrate conceded that the Magistrate had power to make a preliminary enquiry and that, therefore, he should not be allowed to question, the validity of the enquiry for the first time before this Court.

6. Ordinarily, in a case like this we should have been disinclined to interfere with the order of the High Court in an appeal filed under Art. 136 of the Constitution. But, this appeal discloses exceptional circumstances which compel us to depart from the ordinary practice.

7. It is not correct to state that the appellant had conceded throughout that a magistrate can make a preliminary enquiry under S. 488 of the Code before issuing notice to the respondent. Indeed the judgment of the Magistrate discloses that on behalf of the appellant certain decisions were cited in support of the contention that an application under S. 488 of the Code does not come under the purview of Ss. 200 to 203 of the Code. Section 200 of the Code provides for the examination of the complainant and the witnesses present in court. Section 202 enables him to make a further enquiry before issuing notice. Section 203 empowers him to dismiss a petition, if in his judgment no sufficient ground for proceeding with the case has been made out. The contention raised by the appellant, therefore, can only mean that the Magistrate cannot make a preliminary enquiry in the manner contemplated by the said provisions. Indeed, the Magistrate accepted this contention; but he observed:”But, as the learned counsel submit, I have to be satisfied that a notice under S. 488 Cr. P. C. should issue to the opposite party before I issue it and that, therefore, all that has come on record as yet is admissible for consideration of the question whether the notice should be issued or not”. This observation did not record any concession on the part of the appellant that the Magistrate could make a preliminary enquiry. In the context of the first submission, the second submission could only mean that the Magistrate could satisfy himself before issuing notice, whether the application was ex facie not maintainable or frivolous. In the revision petition filed before the Sessions Judge, the appellant raised the following ground:

“Because the court below while correctly holding that application made by the applicant under S. 488 Cr. P. C. did not attract the operation of the provisions made in Ss. 200 to 203 of the said Code and further that in pursuance of the mandatory provision in S. 488 (6) all evidence under Chapter XXXVI of the said Code shall be taken in the presence of the opposite party, has erred in law in directing evidence to be led under S. 200 Cr. P. C. and in considering the said evidence has usurped a jurisdiction not vested in it by law.”

The judgment of the learned Sessions Judge also disclosed that this point was raised before him. Though the learned Sessions Judge accepted the contention that Ss. 200 to 203 of the Code had no application, he remarked that “in this case the learned Magistrate thought it fit to satisfy himself if this was a case fit enough in which he should issue a notice.” Before the learned Judge of the High Court, it does not appear that any concession, even in a limited form, was made. Chowdhry, J., observes in his judgment:

“……..it appears that it was conceded by the learned counsel appearing for the applicant that the Magistrate had to satisfy himself in limine that a notice of the application in question should issue to the opposite party.”

This observation is only a reproduction of what the Magistrate stated in his judgment. Learned counsel, who appeared for the appellant in the High Court, does not appear to have made any fresh concession before the High Court and we do not think that the learned Judge was justified in drawing from the observations of the Magistrate that it was conceded on behalf of the applicant that it would be a proper procedure for the court to make such a preliminary enquiry in order to satisfy itself that notice should issue to the opposite party. As we have pointed out, the main contention of the petitioner throughout was that the Magistrate had no power to make a preliminary enquiry and the concession, even if it had been made, can only mean, in the context, that the Magistrate could satisfy himself whether, on the allegations in the petition, it was a frivolous petition.

8. The first question is whether S. 488 of the code contemplates any preliminary enquiry on the part of a magistrate before he could issue notice to the opposite party. The answer to this question turns upon the construction of the provisions of S. 488 of the Code. Chapter XXXVI of the Code contains three provisions. The heading of the Chapter is “Of The Maintenance of Wives And Children”. The relevant provisions read:

Section 488. (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

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(6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases:

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Section 489 provides for the alteration in the allowance under S. 488, and S. 490 prescribes the procedure for the enforcement of the order of maintenance. The relief given under this Chapter is essentially of civil nature. It prescribes a summary procedure for compelling a man to maintain his wife or children. The findings of a magistrate under this Chapter are not final and the parties can legitimately agitate their rights in a civil court. This Chapter is a self-contained one. It recognizes the right of a child or wife of claim maintenance. It prescribes the procedure to be followed and provides for the enforcement of the decision of the magistrate. Under S. 488, so far as it is relevant to the present enquiry, an illegitimate child unable to maintain itself is entitled to a monthly allowance for its maintenance, if the putative father having sufficient means neglects or refuses to maintain it. It is suggested that unless the child is admitted by the putative father to be his illegitimate child, the magistrate has no power to make an order for payment of maintenance. This argument, if accepted, would make the entire section nugatory. The basis of an application for maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy. The section by conferring jurisdiction on the magistrate to make an allowance for the maintenance of the child, by necessary implication, confers power on him to decide the jurisdictional fact whether the child is the illegitimate child of the respondent. It is the duty of the court, before making the order, to find definitely, though in a summary manner, the paternity of the child. Sub-section 6 of Section 488 is mandatory in form and in clear terms it prescribed the procedure to be followed by the Magistrate. Under that sub-section, all evidence under the chapter shall be taken in the presence of the husband or the father, as the case may be, or, when has personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases. The word “all” with which the sub-section opens emphasizes that fact the no evidence shall be taken in the absence of the father or his pleader. It is conceded that Ss. 200 to 203 of the Code do not apply to an application under S. 488 of the Code. As the proceedings are of a civil nature, the Code does not contemplate any preliminary enquiry. When the terms are clear, there is no scope for drawing inspiration from other sections of the Code, or for deviating from the procedure prescribed to fill up an alleged lacuna. It is said that if no preliminary enquiry be held, even in a blackmailing action notice will have to go to the respondent. There is nothing incongruous in this position; for, if a suit is filed in a civil court for a decree for maintenance by a child against the alleged putative father, summons will go to him without any preliminary enquiry. We are not impressed by the argument that the sub-section itself is intended only for the benefit of the respondent. It appears to us that notice to the respondent is in the interest of both the applicant as well as the respondent while it enables the respondent to the present when evidence is taken against him, it lightens the burden of the petitioner, for an honest respondent may admit his paternity of the child, if that was a fact and may contest only the quantum of maintenance. We, therefore, hold that S. 488 of the Code does not contemplate a preliminary enquiry before issuing a notice, but lays down that all evidence under that Chapter should be taken in the presence of the respondent or his pleader, indicating thereby that one enquiry only should be held after notice.

9. The more objectionable feature in this case is that the Magistrate followed a procedure, which is, to say the least, unjust to the appellant. The appellant’s guardian was examined by the Magistrate, and she related the circumstances that led to her illicit intimacy with the respondent; she has stated in what circumstance the intimacy commenced. She filed copies of the notices sent by her, through an advocate, by registered post to the respondent demanding maintenance and stated that she received the acknowledgments but the respondent did not think it fit to reply. She filed a photograph wherein she and the respondent were seated on chairs with the appellant standing between them. A servant was also examined, who deposed that she had seen the respondent visiting the appellant’s mother at odd hours. This evidence, ordinarily, would be sufficient, even if the procedure followed by the Magistrate was permissible, to give notice to the respondent. But the learned Magistrate cross-examined the mother of the appellant at great length. The cross-examination discloses that the Magistrate had either uncommon powers of intuition or extraneous sources of information, for he elicited so many minute details of her life that only an advocate well instructed in his brief could possibly do. The singularity of the method adopted by the Magistrate does not end there. The learned Magistrate, though he subsequently held that he could not make a preliminary enquiry as contemplated by Ss. 200 to 203 of the Code, examined the mother of the appellant at great length and then gave her opportunity under S. 202 of the Code of procedure other evidence. After examining two more witnesses, the learned Magistrate ordered that “no further evidence to be led at this stage”. This order indicates that the learned Magistrate prevented the appellant at that stage to examine other witnesses. Even if a liberal meaning was given to the terms of the order, it would mean that at that time the Magistrate was inclined to give notice to the respondent but changed his mind subsequently. Thereafter, the Magistrate considered the evidence and delivered a judgment holding that the paternity of the appellant had not been established. While there was uncontradicted evidence sufficient for the Magistrate to give notice to the respondent, he recorded a finding against the appellant before the entire evidence was placed before him. While accepting the contention of the appellant that the procedure under Ss. 200 to 203 of the Code did not apply, in fact he followed that procedure and converted the preliminary enquiry into a trial for the determination of the question raised. Indeed, he took upon himself the role of a cross-examining counsel engaged by the respondent. The record discloses that presumably the Magistrate was oppressed by the high status of the respondent, and instead of making a sincere attempt to ascertain the truth proceeded to adopt a procedure which is not warranted by the Code of Criminal Procedure, and to make an unjudicial approach to the case of the appellant. In the courts of law, there cannot be a double-standard – one for the highly placed and another for the rest:the Magistrate has no concern with personalities who are parties to the case before him but only with its merits.

10. After carefully going through the entire record, we are satisfied that the appellant was not given full opportunity to establish his case in the manner prescribed by law. We should not be understood to have expressed any opinion on the merits of the case; they fall to be considered on the entire evidence which may be produced by the appellant in the presence of the respondent or his pleader, as the case may be.

11. In the result, the order of the High Court is set aside and the reference made by the Sessions Judge is accepted and the application is remanded to the Court of the Magistrate, First Class, Allahabad, for disposal according to law.

Nand Kishore Sing And Ors. vs Ram Golam Sahu And Ors.[ Calcutta 1912 September]

Keywords: Inherent Power of the Court

KHC

 

  • Section 151 of the Code does not lay down any new principle, but merely declares that the Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The existence of this inherent power to do justice has been recognized from the earliest times

Calcutta High Court
Nand Kishore Sing And Ors. vs Ram Golam Sahu And Ors.

Dated : 5 September, 1912

Equivalent citations: 18 Ind Cas 207 , (1913) ILR 40 Cal 955 at p. 959

Author: A Mookerjee

Bench: A Mookerjee, Holmwood

JUDGMENT Ashutosh Mookerjee, J.

 

1. This Rule raises a question of first impression and of considerable importance, namely, whether this Court is competent to make an order for stay of proceedings in execution of its decree, in view of an application by the judgment-debtor to the Judicial Committee for special leave to appeal to His Majesty in Council. The circumstances, under which the application has been made, are not disputed and may be briefly stated. The petitioners were defendants in a mortgage suit. The Court of first instance dismissed the suit on the merit. On appeal to this Court, that decree was reversed and the usual mortgage decree made on the 16th February 1911. The defendants applied to this Court for leave to appeal to His Majesty in Council. This application was refused on the 19th March 1912, on the ground that the decree did not involve a claim to a property of the value of Rs. 10,000 or upwards. The defendants applied to this Court to review this order; that application was refused on the 16th April 1912. The position, therefore, is that in so far as the Courts of this country are concerned, the mortgage decree has become final. On the 7th July 1912, the defendants, however, made the present application for a stay of proceedings in execution of our decree, for which the decree-holder had applied to the Court below on the 2nd November 1911, during the pendency of the application in this Court for leave to appeal to His Majesty in Council The present Rule was granted on the application of the 7th July 1912. The petitioners state in their affidavit that they have taken steps to apply to the Judicial Committee for special leave to appeal to His Majesty in Council, and at the hearing before us, the learned Vakil for the petitioners stated that the papers and costs have been transmitted to their Solicitors in England. The decree-holders opposed the application on the ground that as in appeal or application for leave to appeal is pending in this Court or elsewhere, the Court has no jurisdiction to grant a stay of proceedings. It is not disputed that there is no statutory provision applicable to this question; indeed, the absence of a provision in this behalf is not a matter for surprise, because the Code of Civil Procedure does not deal with applications for special leave to appeal to His Majesty in Council, though Section 112 of the Code of 1908 declares that nothing in the Code shall be deemed to bar the full and unqualified exercise of His Majesty’s pleasure in receiving or rejecting appeals to His Majesty in Council. The question, therefore, arises whether this Court is competent, in the exercise of its inherent power, to stay proceedings under these circumstances. Section 151 of the Code does not lay down any new principle, but merely declares that the Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The existence of this inherent power to do justice has been recognized from the earliest times, Hurro Chunder v. Sooradhonee Debia 9 W.R. 402; B.L.R. Sup. Vol. 985 and has been repeatedly affirmed: Panchanan v. Dwarka Nath 3 C.L.J. 29 and Hukum Chand v. Kamala Nand 3 O.L.J. 67; 33 0. 927. This inherent power is not, as has sometimes been supposed, capriciously or arbitrarily exercised; it is exercised ex debito justitiae, to do that real and substantial justice for the administration of which alone the Court exists. In other words, as Mr. Justice Woodroffe puts it in Hukum Chand v. Kamalanand 3 O.L.J. 67; 33 0. 927 the Court in the exercise of such inherent power must be careful to see that its decision is based on sound general principles and is not in conflict with them or the intentions of the Legislature. It is not necessary for my present purpose to formulate the circumstances under which a Court will exercise its inherent power; various instances will be found mentioned in the judgments in Hukum Chand v. Kamalanand 3 O.L.J. 67; 33 0. 927. Amongst obvious cases may be mentioned, consolidation of suits and appeals, postponement of the hearing of a suit pending the decision of a selected action, stay of cross-suits on the ground of convenience, inquiry as to whether all the proper parties are before the Court, entertaining an application of a stranger to be made a party, the addition of a party, entertaining a defence in forma pauperis, deciding one question while reserving another for investigation, remanding a suit which has not been properly tried, staying the drawing up of the Court’s own order, suspending the operation of the Court’s order, staying proceedings pending an appeal in a guardianship matter and appointing a temporary guardian ad interim, applying the principle of res judicata to execution proceedings for the sake of finality, punishing contempt of Court committed when the Court is not sitting, deciding questions of jurisdiction though the Court is ultimately found not to have jurisdiction over the suit, directing a party who has applied for leave to appeal to His Majesty in Council to pay costs on the dismissal of his application, amending decrees or orders, granting restitution in cases of reversal of execution sales and orders in execution proceedings, restraining by injunction a person from proceeding with a suit in the Small Cause Court, staying proceedings pursuant to its own order in view of an intended appeal, and treating an application for revision as an appeal and vice versa: Mahomed Wahiduddin v. Hakiman 25 C.757; 2 C.W.N. 529; Tara Pado Ghose v. Kamini Dasi 29 C. 644; Mahadeo v. Budhai Ram 26 A. 358; (1904) A.W.N. 50; Godu Ram v. Surajmal 2 A.L.J. 18. Let me examine the matter before us in the light of this principle. The decree-holders contend that the Court is not competent to grant a stay, because no appeal or application for leave to appeal is pending here or elsewhere. This argument is based on the assumption that the Court has authority to grant a stay, only when an appeal or an application for leave to appeal is pending. The assumption is groundless and is negatived by Order XLI, Rule 5(2), of the Code of 1908, which expressly recognises the position that an original Court may, for a limited time, stay proceedings in execution of its own decree, in view of a possible appeal to a superior tribunal. The principle, thus recognised by the Legislature in express terms, furnishes, in my opinion, a useful guidance in the determination of the question, how the inherent power of this Court should be exercised in a matter of this description. That the Court has inherent power to stay proceedings pursuant to its own order in view of an intended appeal, even though there is no express statutory provision in that behalf, is conclusively shown by the case of Brij Coomaree v. Ramrick Dass 5 O.W.N. 781. This is one aspect of the matter. Another point of view is of equal, if not greater, importance. The Judicial Committee have laid down, in Nityamoni Dasi v. Madhusudan Sen 38 I.A. 74; 38 C. 335; 13 C.L.J. 529; 11 Ind. Cas. 384; 8 A.L.J. 449; 13 Bom. L.R. 419; 10 M.L.T. 25; (1911) 2 M.W.N. 124; 4 Bur. L.T. 123 (P.C.) that as soon as an appeal has been admitted by special leave of His Majesty in Council, the High Court is vested with authority to stay execution, in the same manner as if leave to appeal had been granted by the High Court itself. Consequently, if the proposed application by the petitioners for special leave to appeal to His Majesty in Council is granted by the Judicial Committee, this Court will be competent to stay proceedings under the authority of the decision just mentioned. The Court, therefore, ought now to act in aid of a possible order for stay that may hereafter have to be made. If the contrary view is taken, what is the result? Assume that the present application for stay is refused, and the decree-holders are permitted to sell the mortgage properties; the application for special leave is granted by the Judicial Committee, and an application then made to this Court by the judgment-debtors for stay of proceedings. Are we to say that our action has already been paralysed, that we are powerless to grant relief and that the application is infructuous? I am strongly of opinion, after most anxious consideration of the subject, that the Court should not tolerate such a result, and as I have shown, the position may be avoided by the recognition of sound judicial principles. The decree now under execution was made by this Court, and the Court has control over it, so as to enable the Court to stay proceedings in view of a possible appeal to His Majesty in Council. It is fairly obvious that if the contention of the decree-holders were to prevail, the gravest injustice might be done to litigants. An application to the Judicial Committee for special leave to appeal to His Majesty in Council, must necessarily take time; distance cannot be annihilated, and time must be occupied, inspite of the utmost expedition, in the preparation and transmission of papers. Besides, their Lordships of the Judicial Committee do not hold their sittings continuously throughout the year, and weeks may elapse before the most diligent of suitors is able to obtain special leave to appeal to His Majesty in Council; if, meanwhile, his properties are allowed to be sold up by the decree-holders on the theory that this Court is powerless to interfere, not only may an application for stay after the grant of the special leave, as contemplated by the Judicial Committee in Nityamani v. Madhusudan 38 I.A. 74; 38 C. 335; 13 C.L.J. 529; 11 Ind. Cas. 384; 8 A.L.J. 449; 13 Bom. L.R. 419; 10 M.L.T. 25; (1911) 2 M.W.N. 124; 4 Bur. L.T. 123 (P.C.) become infructuous, but the appeal admitted by special leave of their Lordships of the Judicial Committee may turn out to be wholly illusory and ineffectual.

2. It cannot seriously be maintained that the grant of a stay in any way throws doubt on the decree or weakens its effect; the stay is granted on the principle that the parties should, if the circumstances justify the adoption of such a course, be retained in status quo till the validity of the decree has been tested in the Court of ultimate appeal.

3. The exercise of the inherent power of the Court should thus be widened to aid the administration of justice and not unduly restricted so as to cause needless hardship to litigants and a possible failure of justice. I hold, therefore, that this Court has authority to grant this application. The stay, however, can be granted only for a limited time, and on terms. The rule, in my opinion, should be made absolute and execution proceedings stayed till the 30th November 1912, and the Court below directed to value the mortgage properties and the judgment-debtors called upon to furnish security for so much of the judgment debt as may exceed the value so determined; if security is not furnished within a time to be prescribed by the Court below, the decree-holders will be entitled to proceed with execution of their decree.

4. The Rule is made absolute on these terms, under Clause 36 of the Letters Patent, but there will be no order for costs.

Holmwood, J.

5. I am not prepared to differ from my learned brother upon the general point he makes that this Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. But there are numberless cases where the parties come to this Court asking for a relief which it is not competent for them to seek, and the Court does not in practice make use of its inherent powers to extend a procedure, which does not apply to a particular case, to such a case. For instance, the Court does not ordinarily allow an application for revision to be treated as an appeal, far less does the Court go outside its own walls to deal with parties who have no pending litigation before it.

6. To my mind, the use of the inherent power in this case would be an abuse of the process of the Court.

7. Here is a case of a mortgage suit, valued at less than Rs. 10,000, which was dismissed in the Court of first instance but decreed on appeal to this Court on the 16th February 1911. The defendants applied to this Court for leave to appeal to His Majesty in Council. This application was refused on the 19th March 1912, and the suit being of less value than Rs. 10,000 admittedly, it must be assumed that the Bench, dealing with Privy Council matters, held after full consideration that no substantial point of law arose in the case. The decree of the Court of the 16th February 1911 is, therefore, res judicata between the parties, and we cannot go into the merits of the case and say that this is a case where a stay of execution should be granted.

8. The parties are not properly before the Court and I do not think they have any right to come before the Court. Their only remedy is to go to the Judicial Committee for special leave to appeal to His Majesty in Council. Until they do this, they have no footing whatever for further litigation in this matter.

9. There is no question of using our inherent powers to right a wrong or to prevent the abuse of the process of this Court. We are bound to hold that the decree of this Court of the 16th February 1911, which under the rules is obnoxious to appeal to the Judicial Committee, is a good and just decree and one which ought to be executed.

10. That is the view I am prepared to hold, since, in my opinion, the applicants for special leave to the Privy Council are not entitled to be heard to the contrary. They are barred by the principle of res judicata, and, speaking for myself, I am not prepared to hold that the decree of 16th February 1911 was not a good and just decree and was not final as far as this Court is concerned. It is to my mind clear that it cannot be a proper use of the inherent powers of this Court to impede the execution of the final decrees of this Court, and I do not see why this Court should not use its inherent powers to help the decree-holder who has obtained a good decree rather than help the judgment-debtor who has no locus standi to delay the course of justice.

11. I am strongly averse to staying execution, where the law does not expressly authorise it, except on very good grounds shown to the satisfaction of the Court.

12. I have never been able to see why the interests of the decree-holder should not be just as worthy of consideration as those of the judgment-debtor, and I do not feel myself either called upon to interfere or justified in interfering with a perfectly competent, good and just proceeding in execution.

13. As the Rule is to be made absolute, I may say that the applicant to Privy Council has practically gained all he wanted, by this application, and I can see no objection to adjourning the matter to the 30th November, which is the practical effect of the order with the additional advantage to the decree-holder of the security ordered.

Section 125 [488 Old] of Criminal Procedure Code [Law Points]

MAINTENANCE-

Note

  1. The proceedings under Section 488 of the Old Code are quasi-civil in nature but that does not mean that the Magistrate dealing with them gets all the powers of a civil court or that all the rules governing the civil proceedings can be imported.
  2. Though Section 125 benefits a distressed father also, main thrust of the provision is to assist women and children in distress. That is fully consistent with Article 15(3) of the Constitution which states that the prohibition contained in the Article shall not prevent the State from making any special provision for women and children. We take note of Article 39 of the Constitution which states, inter alia, that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means to livelihood, that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. See Bai Tahira v. All Hussain Fissali, AIR 1979 SC 362 : (1979 Cri LJ 151) and Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521 : (1963 (2) Cri LJ 413). The provision is a measure of social justice and specially enacted to protect women and children. As the Supreme Court observed in Ramesh Chander v. Veena Kaushal, AIR 1978 SC 1807 : (1979 Cri LJ 3), the brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance.
  3.  There can be no quarrel with the proposition that a person summoned under the Code has to be served in the manner provided in the aforesaid Sections 62 to 66 but there is no legal bar to the service of the summons on a person by a registered post in addition to the prescribed mode, as the whole object is to make the person summoned aware of the proceedings being taken against him.  The same principle of law laid down in Sunil Kumar Phukan v. Mt. Pratima Buragohain, 1973 Cri LJ 401 (Gauhati).  It is true that if the mode laid down in Sections 62 to 66 of the Code for effecting service is not at all resorted to by the Court, then an argument would be available that no proper service has been effected on the opposite party as the mode of service laid down in the Code had not been followed. But where not only the mode of service laid down in the Code is followed but in addition, some other process is also issued like sending the summons by registered post or by publication of the notice in the newspaper, it cannot be said that in such a case the ex parte order made against the opposite party would be invalid only on the ground that additional mode of service had been followed which is not contemplated by the Code.
  4. Before proceeding to hear and determine the case ex parte, the Magistrate has to apply his mind to the question whether the opposite party is wilfully avoiding service or wilfully neglecting to attend Court and be satisfied that there has been such wilful conduct on the part of the opposite party. The Magistrate cannot proceed ex parte without arriving at such satisfaction. It is desirable for the Magistrate to pass a formal order recording such satisfaction and giving reasons for such satisfaction. However, the condition precedent for proceeding ex parte is the satisfaction based on reasons and not the formal order. The satisfaction must be discernible from the circumstances evident from the record. Proviso to Sub-section (2) of Section 126 refers to satisfaction of the Magistrate that the opposite party is wilfully avoiding service or wilfully neglecting to attend the Court. The expression “service” is not defined in the Chapter or the Code. It is not stated that what has to be served is “summons” in the general sense of the word or summons as contemplated in the Code or a mere notice.
  5. The case does not deal with an offence. The person against whom the claim is made is not an offender or an accused. The order passed against him does not spell out a finding that he has committed an offence. There is no punishment imposed on him, though as a mode of recovery, imprisonment is provided for. He is not charged for the commission of a criminal offence. The object of the provision is not to punish him for the past neglect. The object is to prevent vagrancy and ameliorate distress. See In re Vithaldas Bhurabhai, AIR 1928 Bom 346 : (1928-29 Cri LJ 1051),Zainab Bibi v. Anwar Khan, AIR 1946 Pat 104 : (1946-47 Cri LJ 821), A. W. Khan v. Zaitunbi, AIR 1950 Nag 45 : (1950-51 Cri LJ 451), Seri Ram Reddy v. Chandramma, AIR 1952 Hyd 45, Nagendramma v. Ramakotayya, AIR 1954 Mad 713, KarnailSinghv. Mst. Bachan Kaur, AIR 1955 Punj 26 : (1955 Cri LJ 334), Jaswantsinghji v. Kesuba Harisinh, AIR 1955 Bom 108 ; (1955 Cri LJ 357), T. K. Thayumanuvar v. Asanambar Ammal, AIR 1958 Mys 190 : (1958 Cri LJ 1522) and Sew Kumher v. Mongru Kumharin, AIR 1959 Cal 454 : (1959 Cri LJ 834).
  6. Proceedings under Chap. IX of the Code,  stand on a different footing. The person against whom claim for maintenance is made is not accused of any offence; nor can he be convicted or sentenced. The proceedings against him are essentially of a civil nature, since the claim against him is essentially of a civil nature. The Court, naturally, has a duty to inform him about the proceedings and of his right to appear and contest. The normal duty of the Court is to record evidence in the presence of the person against whom the claim is made. That does not and cannot mean that the Court can compel his appearance. Whether he should appear or not is a matter left to his own decision. A person against whom a claim is made may not desire to contest the case at all. He cannot be compelled to appear in Court and to be present during the recording of the evidence. If he cannot be so compelled, the Court cannot have power to compel his appearance. This is the rationale for the provision in the proviso to Section 126 (2) which empowers the Court under certain circumstances to proceed ex parte. The circumstances are where the Court is satisfied that the person against whom the claim for maintenance is made is wilfully avoiding service or wilfully neglecting to attend the Court. Of course, it is not mere avoidance of service or failure to attend the Court which attracts the operation of the proviso. Avoidance of service or failure to attend the Court must be wilful, that is, deliberate. Where such a person wilfully avoids service or neglects to attend the Court, the law enables the Magistrate to determine the case ex parte, after recording the evidence in his absence. This would also indicate that the Magistrate cannot compel appearance of such a person in the same manner in which he can compel appearance of an accused person by resorting to provisions relating to summons, warrant of arrest, proclamation and attachment contained in Chap. VI of the Code.
  7. As the proceedings are of a civil nature, the Code does not contemplate any preliminary enquiry.[Nand Lal Misra Vs Kanhaiya Lal Misra[SC 1960 April ]
  8. “But when this date of knowledge falls beyond the period of three months from the date of order, question of limitation arises, no doubt-In this connection it is worthy of note that there is no Article like Article 122 of the Limitation Act, 1963 prescribing limitation for application for setting aside ex parte orders under Section 125, Cr. P.C. In such circumstances aid of Section 5 of the Limitation Act, 1963 may be taken and non-service of notice may be pleaded as sufficient ground for condonation of delay. But in the present case no application has been made under Section 5 of the Limitation Act, 1963 for condonation of delay. The conclusion therefore, is inescapable that the application was time barred and the learned Magistrate was wrong in entertaining the petition”.
  9. “When an ex parte order under Section 126 of the Code is therefore made, the conclusion is inescapable that the learned Magistrate was satisfied not only regarding due service of process but also regarding opposite party’s wilful avoidance of service or wilful neglect to attend the court. Consequently, subsequent to such ex parte order the Magistrate should be slow and cautious to set aside the ex parte order. Only when cogent and convincing evidence is produced to satisfy that there was no wilful avoidance of service or wilful neglect to attend court the Magistrate will set aside the ex parte order. In the present case the husband did not depose before the learned Magistrate that the process server did not tender to him the notice of the case or that the postal peons did not offer to him the registered covers addressed to him. The endorsements of the postal peon on the registered covers attracted presumption of service under Section 27 of the General Clauses Act. Further who was more likely to influence the process server or postal peon, the husband or wife? According to the husband the wife is a maid-servant and her mother is also a maid-servant whereas he himself is a man of higher social status namely, an Assistant Engineer. Moreover in spite of some inaccuracy in the name of the father and village of the husband given in the petition it was not impossible to find out the husband from other particulars of him as given in the petition. The house of the husband located near Mohuri Mill Gate, P. S. Jagacha, P. O. AndulMohuri. The Police Officer who had been to the location to execute the warrant against the petitioner as a matter of fact found out the husband. So there is no reason to believe that the process-server or postal peon because of inaccuracies in the description of the husband failed to find him out. The learned Magistrate does not appear to have considered these aspects of the case. I am, therefore, convinced that the husband failed to make out good cause for setting aside the ex parte order. The learned Magistrate’s findings to the contrary-effect is untenable”.[
    Calcutta High Court Bina Ganguli vs Rash Behari Ganguli on 20 July, 1983   citations: 1983 CriLJ 1672]
  10. In Jagir Singh v. Ranbir Singh, a revision against the order of the Magistrate was decided by a Sessions Judge and a second revision was sought to be made before the High Court. The Supreme Court clearly held that the object of Section 397(3) of the Code is to prevent a multiple exercise of revisional powers and to secure early finality to orders. Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Sessions Judge or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of other authority. The language of Section 397(3) of the Code is clear and peremptory and it does not admit of any other interpretation. In another judgment of the Supreme Court in the case of Rajan Kumar Machananda v. State of Karnataka, (1987) 5 JT 637 (1), it has been now clearly laid down that resort to inherent powers of the High Court cannot be had if there is other remedy available in the Code to the aggrieved person.
  11. PLEADING-it is well settled that in the matter of criminal cases pleadings are not to be strictly construed. Even so, the combined effect of Ss. 125 to 128 of the Code leaves no room for doubt that the proceedings are quasi-civil in nature. Therefore, the rules of pleadings as apply to civil proceedings are not to be totally disregarded when dealing with applications under Chapter IX of the Code.The main rules in regard to pleadings applicable to civil proceedings are also applicable to proceedings for maintenance under Chapter IX of the Code.
  12. PAYMENT: Cr.P.C. S.125(3): There is no bar to commit a person under S.125(3), Cr.P.C. to commit a person defaulting in payment of maintenance amount to imprisonment and also simultaneously to proceed against his properties, be it movable or immovable for realisation of the maintenance amount -Smt. Kuldip Kaur Vs. Surinder Singh, AIR 1989 SC 232.

Pradeep Bachhar Vs. State of Chhattisgarh [SC 2017 December]

KEYWORDS:- Quantum of sentence-Poverty

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Considering the circumstances placed before us on behalf of the appellant-accused viz. they are very poor and have to maintain their family, it was their first offence and if they fail to pay the amount of fine as per the order of the Additional Sessions Judge, they have to remain in jail for a period of 3 years in addition to the period of substantive sentene because of their inability to pay the fine, we are of the view that serious prejudice will be caused not only to them but also to their family members who are innocent.

We are, therefore, of the view that ends of justice would be met if we order that in default of payment of fine of Rs. 1.5 lakhs, the appellants shall undergo RI for 6 months instead of 3 years as ordered by the Additional Sessions Judge and confirmed by the High Court.

DATE:- December 11, 2017

ACTS:- Section 20(b) (ii)(C) of The Narcotic Drugs and Psychotropic Substances Act, 1985

SUPREME COURT OF INDIA

Pradeep Bachhar Vs. State of Chhattisgarh

[Criminal Appeal No. 2151 of 2017 @ Special Leave Petition (CRL.) No. 7851 of 2017]

KURIAN, J.

1. Leave granted.

2. The appellant is convicted under Section 20(b) (ii)(C) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “the NDPS Act”) and sentenced to undergo rigorous imprisonment for 15 years and a fine of Rs. 1,50,000/- with a default sentence of three years.

3. The High Court reduced the sentence from 15 years to 12 years. The fine of Rs. 1,50,000/- was retained, but the default sentence was reduced to two years.

4. When the matter came up before this Court, on 09.10.2017, notice was issued on the quantum of sentence.

5. A similar situation came up for consideration before this Court in Shahejadkhan Mahebubkhan Pathan Vs. State of Gujarat, reported in (2013) 1 SCC 570, whereby having regard to the financial and other social conditions of the convicted person, this Court reduced the substantial sentence to 10 years and the default sentence to six months. The relevant considerations are available at paragraphs 15 and 16 of the Judgment, which read as follows :-

“15. It is clear that clause (b) of sub-section 1 of Section 30 of the Code authorises the court to award imprisonment in default of fine up to one-fourth of the term of imprisonment which the court is competent to inflict as punishment for the offence.

However, considering the circumstances placed before us on behalf of the appellant-accused viz. they are very poor and have to maintain their family, it was their first offence and if they fail to pay the amount of fine as per the order of the Additional Sessions Judge, they have to remain in jail for a period of 3 years in addition to the period of substantive sentene because of their inability to pay the fine, we are of the view that serious prejudice will be caused not only to them but also to their family members who are innocent.

We are, therefore, of the view that ends of justice would be met if we order that in default of payment of fine of Rs. 1.5 lakhs, the appellants shall undergo RI for 6 months instead of 3 years as ordered by the Additional Sessions Judge and confirmed by the High Court.

16. For the reasons stated above, both the appeals are partly allowed. The conviction recorded is confirmed and sentence imposed upon the appellants to undergo RI for 15 years is modified to 10 years. The order of payment of fine of Rs. 1.5 lakhs each is also upheld but the order that in default of payment of fine, the appellants shall undergo RI for 3 years is reduced to RI for 6 months.

Since the appellants have already served nearly 12 years in jail, we are of the view that as per the modified period of sentence in respect of default in payment of fine, there is no need for them to continue in prison. The appellants shall be set at liberty forthwith unless they are required in any other offence. It is further made clear that for any reasons, if the appellants have not completed the modified period of sentence, they will be released after the period indicated hereinabove is over.”

6. Having heard the learned senior counsel appearing for the appellant and the learned counsel appearing for the State, on facts, we do not find any reason to take a different view. Accordingly, the appeal is allowed. The substantial sentence of the appellant is reduced to 10 years and the sentence in default on payment of fine is reduced to six months.

 [KURIAN JOSEPH]

 [AMITAVA ROY]

New Delhi;

December 11, 2017

The Correspondent, Schaffter Higher Secondary School, Tirunelveli and Ors. Etc. Vs. A.M. Sankey John and ANR. Etc[SC 2017 DECEMBER]

KEYWORDS:-violation of the principles of natural justice-

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DATE: December 11, 2017-

SUPREME COURT OF INDIA

The Correspondent, Schaffter Higher Secondary School, Tirunelveli and Ors. Etc. Vs. A.M. Sankey John and ANR. Etc.

[Civil Appeal Nos. 10506-10510 of 2011]

KURIAN, J.

1. The appellants are before this Court, aggrieved by the Judgment and order dated 26.03.2010 passed by the Madurai Bench of the High Court of Judicature at Madras in W.A.(MD) Nos. 253, 254, 375, 376 and 377 of 2009. The Division Bench entered a finding that the termination of the private respondents was bad in law being in violation of the principles of natural justice.

2. During the pendency of the appeals before us, pursuant to our specific order dated 23.11.2017, the District Education Officer, Tirunelveli, has passed an order dated 04.12.2017 holding that the appointing authority was not competent to appoint the private respondents and hence, no approval can be granted in the case of those appointments.

Though, no separate orders are passed in the case of the two remaining private respondents, we take it that same is the stand taken by the District Education Officer and the same is their fate as well. Since there were several questions regarding the right to appointment, promotion, approval etc. before the High Court and since the High Court has finally limited the consideration to only the principles of natural justice, we are of the view that the matter, in view of the intervening developments of the District Education Officer rejecting the approval, needs to be sent back to the High Court. In order to avoid another round of litigation, we grant liberty to the private respondents to challenge the validity of the order dated 04.12.2017 passed by the District Education Officer, Tirunelveli, in the pending writ appeal(s).

3. The learned counsel appearing for the State submits that the fate of the two other persons namely, S. Arun Arockiaraj and Suganthi Selvakumari, is also the same as in the order dated 04.12.2017. Therefore, we make it clear that in their cases also, the order dated 04.12.2017 shall be treated as an order rejecting their approval as well and hence, it will be open to those two teachers also to amend their pleadings in the writ appeal(s) before the High Court. Accordingly, these appeals are disposed of setting aside the impugned Judgment and remanding the matter back to the High Court for consideration afresh. It will be open to both the sides to take all available contentions before the High Court. We request the High Court to go into the validity of the order dated 04.12.2017 passed by the District Education Officer.

4. Being an old matter, we request the High Court to dispose of the writ appeal(s) expeditiously and preferably before the end of this academic year. Needless to say, the question as to who is the competent authority will also be gone into by the High Court.

 [KURIAN JOSEPH]

 [A.M. KHANWILKAR]

New Delhi;

December 11, 2017

Kaushal Kishore Awasthi Vs. Balwant Singh Thakur & ANR [SC 2017 December]

KEYWORDS:-Professional misconduct-Advocate- Bar Council of India (BCI)

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It is very clear from the provisions of Section 35 that punishment can be awarded to an Advocate if he is found guilty of professional or other misconduct. Rule 22 is the relevant Rule in the instant case which proscribes an Advocate from directly or indirectly making a bid for or purchase either in his own name or in other’s name for his own benefit or for the benefit of any other person any property sold in the execution of a decree or order in any suit, appeal or other proceedings in which he was in any way professionally engaged. Admittedly, in the instant case, the complainant was selling the property to the intending buyer which was an arrangement between them unconnected with any legal proceedings.

Acts:-Section 49(1)(c) of the Advocates Act, 1961.

SUPREME COURT OF INDIA

Kaushal Kishore Awasthi Vs. Balwant Singh Thakur & ANR.

[Civil Appeal No. 15540 of 2017]

Respondent No.1 herein (the complainant) had lodged a complaint with the Bar Council of Chhattisgarh (hereinafter referred to as the ‘State Bar Council’) on 19.12.2003 against the appellant, who is an Advocate by profession, alleging that the appellant had acted in a manner which amounts to professional misconduct. On that basis, the complainant pleaded that disciplinary action be taken against the appellant. Taking cognizance of the said complaint, a Disciplinary Committee was constituted as the reply dated 03.02.2006 filed by the appellant was found not to be satisfactory.

After recording the evidence and hearing the parties, the Disciplinary Committee passed final orders dated 09.12.2006 holding the appellant guilty of professional misconduct and, on that basis, imposed punishment by suspending his license of practice for a period of two years. The appellant preferred statutory appeal against the said decision of the State Bar Council before the Bar Council of India (BCI). Vide the impugned judgment, the BCI has affirmed the finding of the State Bar Council as far as holding the appellant guilty of misconduct is concerned. However, it has reduced the term of suspension of license from 2 years to one year along with cost of Rs.25,000/- to be paid to the complainant. Against this order of the BCI, the present appeal is preferred by the appellant.

A neat plea which is taken by the learned counsel for the appellant is that even if the allegations contained in the complaint are taken to be correct on its face value, these do not amount to committing any misconduct as per the provisions of the Advocates Act and Rules framed thereunder. We are, therefore, confined to this aspect in the present appeal. From the complaint which was lodged by the complainant before the State Bar Counsel it can be discerned that his allegation was that there was a family dispute, i.e., between the complainant and his brothers, in respect of a property which was in the name of their father and was an ancestral property. It was stated that after the death of their father on 11.10.1989, the said property was divided by the three brothers equally.

However, it transpired that before his death, one of the brothers of the complainant influenced his father and got registered the said property in the name of the complainant’s nephew, i.e., son of that brother, without the consent of other brothers vide sale deed dated 25.07.1989. The complainant had approached the appellant, who is an Advocate, for filing the Suit for declaration to declare that the sale deed was null and void as it was prepared fraudulently. The appellant acted as his Advocate and filed the Suit. In the said Suit, the parties settled the matter as they agreed for declaring the sale deed as ineffective and requested the Court for division of the property.

This resulted in passing of decree dated 24.10.1994 by the Court in which the complainant was declared owner of 0.03 acres along with kutcha house out of the disputed property. Till this stage, there is no quarrel and there is no allegation against the appellant as far as his conducting the said Suit is concerned. However, the complainant further alleged that owing to family crises, the complainant suffered some financial crunch in the month of April, 2003, and he decided to sell his share of land to one Mr. Narsinghmal, son of Surajmal, for a sum of Rs.30,000/- and for the purpose of registration of sale deed, he produced the earlier sale deed before the office of the Deputy Registrar, Dantewada.

At that stage, the appellant produced objection letter against the proposed sale deed and objected for registration of the said sale deed on the ground that the complainant did not have full ownership of the proposed land and the market value was also shown less in the said sale deed. It was stated by the complainant that the appellant was neither an interested party in the said sale deed or in the proposed sale of the land nor was he authorised by any party to raise objections.

This act of the appellant in appearing before the office of the Deputy Registrar and objecting to the registration of sale deed was labelled as professional misconduct by alleging that the appellant had paid a sum of Rs.20,000/- to the complainant in the year 1996 and another sum of Rs.20,000/- to the son of the complainant in the year 1999 and for repayment of the said amount, the complainant had offered half share of the subject land as security. His justification for raising objection, therefore, was that since the land was being sold without clearing his debt, it could not be done.

Without prejudice to his defence, the learned counsel for the appellant submitted that even if the aforesaid contents in the complaint are accepted as correct, the act of the appellant was not as an Advocate and, therefore, could not amount to committing misconduct. In order to appreciate this contention one may refer to Rule 22 under Chapter II of the Standards of Professional Conduct and Etiquette framed by the BCI in exercise of its power under Section 49(1)(c) of the Advocates Act, 1961.

This Rule reads as under:

“22. An advocate shall not, directly or indirectly, bid for or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any other person, any property sold in the execution of a decree or order in any suit, appeal or other proceeding in which he was in any way professionally engaged. This prohibition, however, does not prevent an advocate from bidding for or purchasing for his client any property which his client may himself legally bid for or purchase, provided the Advocate 4 C.A. No. 15540/2017 is expressly authorised in writing in this behalf.” Section 35 of the Advocates Act, 1961, as per which punishment can be awarded to an Advocate for misconduct makes the following reading: –

35. Punishment of advocates for misconduct.-

(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. (1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.

(2) The disciplinary committee of a State Bar Council 2[***] shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State.

(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely:-

(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice for such period as it may deem fit;

(d) remove the name of the advocate from the State roll of advocates.

(4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India.

(5) Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

It is very clear from the provisions of Section 35 that punishment can be awarded to an Advocate if he is found guilty of professional or other misconduct. Rule 22 is the relevant Rule in the instant case which proscribes an Advocate from directly or indirectly making a bid for or purchase either in his own name or in other’s name for his own benefit or for the benefit of any other person any property sold in the execution of a decree or order in any suit, appeal or other proceedings in which he was in any way professionally engaged. Admittedly, in the instant case, the complainant was selling the property to the intending buyer which was an arrangement between them unconnected with any legal proceedings.

The said property was not being sold in execution of any decree, in which proceedings the appellant was engaged, as noted above. Insofar as the filing of the Suit by the appellant on behalf of the complainant is concerned, that had resulted into passing of decree and the proceedings had concluded. Even as per the complainant’s own admission, it is much thereafter that the complainant intended to sell the property in question when he found himself in need of money. It is this sale which the appellant tried to interdict.

He was not doing so in the capacity of an Advocate. As per him, the complainant was not authorised to sell the property without repaying his debt. Whether the appellant was right in this submission or not, is not relevant. What is relevant is that this act has nothing to do with the professional conduct of the appellant. Therefore, the very initiation of disciplinary proceedings against the appellant by the State Bar Council was improper and without jurisdiction. We, accordingly, allow this appeal and set aside the impugned orders passed by the Bar Council of India.

 [A.K. SIKRI]

[ASHOK BHUSHAN]

New Delhi;

December 11, 2017.