Dr. V.K. John, Madras vs G. Vasantha Pai, Madras

V. V. Rajamannar C.J.

In this petition u/s 10(2) of the Indian Bar Councils Act, the petitioner was Dr. V. K. John, an advocate of this Court. The respondent was the

advocate engaged by one T. N. Kuriakose, the defendant in two suits in the City Civil Court, Madras, O, S. Nos. 502 and 508 of 1957, filed by

his wife, the daughter of the petitioner. An application was filed in this court by the said T. N. Kuriakose for a transfer of the two suits to the file of

this court, in which certain allegations were made against Dr. John, the complainant, and the learned Fifth Assistant Judge of the City Civil Court,

who had made the order in I. A- No. 78 of 1957, which was an application taken out by the complainant''s daughter for the appointment of a

Commissioner to take possession of certain articles in the possession of her husband, Mr. Kuriakose, including a motor car and to take an

inventory of the said articles and deliver them to her.

The complainant alleged that the respondent was guilty of professional misconduct in allowing the said allegations to be made in the affidavit of his

client, Mr. Kuriakose. The petition was referred to the Tribunal of the Bar Council for enquiry. At the enquiry the following charges were framed

against the respondent-advocate, namely,

That you appearing as an advocate for the defendant in O. S. Nos. 502 and 508 of 1957, on the file of the City Civil Court, Madras, filed on

behalf of your client Mr. T. N. Kuriakose, an affidavit sworn to by your client in support of the applications for transfer of the suits to the High

Court of Madras, in which it was stated in paragraph 5; ""I state that Mr. John has thrown up special parties for City Civil Court Judges""; and again

in paragraph 6 it is stated as follows:

I state that Dr. V. K. John has a wide circle of political friends. Srimathi K. Manjubhashini, a well-known political worker is a friend of Mr. and

Mrs. V. K. John. I understand she is the wife of the fifth Assistant Judge (now retired, Sri T. V. Subramania Aiyar, who heard my case). This

learned Judge has also come to Dr. John''s place on many occasions. I state that personal considerations have crept in, in the making of the order

in I. A. No. 78 of 1957 against me.

And that in filing the said affidavit, you committed breach of professional duty in not satisfying yourself in the first instance that there were

reasonable grounds for making the allegations contained in the paragraphs above mentioned.

The Tribunal of the Bar Council after enquiry have submitted a report that the respondent is not guilty of any professional misconduct and that

the complainant had not proved the charges made by him against the respondent.

The facts leading up to the complaint have been set out in the report of the Bar Council Tribunal. It is sufficient for the disposal of this reference

to mention only the salient facts. The complainant''s daughter was married to Mr. T. N. Kuriakose in 1948. Subsequently differences arose

between husband and wife which culminated in the institution of the two suits by the wife. One suit O. S. No. 502 of 1957 was for maintenance on

the basis of desertion and cruelty by the husband.

The second suit, O. S. No. 508 of 1957, was for recovery of certain moveables which were alleged to belong to her. Certain items of moveable

property were returned by Mr. Kuriakose to the wife as belonging to her; but in respect of other items he contested her exclusive claim. Pending

disposal of the suits, an application was made by Mrs. Kuriakose, I. A. No. 78 of 1957, mentioned earlier. On this application an ex parte order

was made on 11-3-1957 by the learned Fifth City Civil Judge in and by which, he appointed a Commissioner, an advocate of this court, not only

to take possession of the car but also to take an inventory of the articles referred to in the wife''s petition and to remove them from the possession

of the defendant and to keep them in safe custody until further orders of court.

The Commissioner was given permission to seek police aid if needed, in carrying out the order of court and also liberty to break open the lock of

the defendant''s premises, the almirahs and safe and other receptacles inside the house. Thereafter Mr. Kuriakose filed two applications, Nos. 743

and 745 of 1957, on the original side of this court for transfer of the two suits filed by his wife to the file of this court. The present complaint is

based on allegations contained in the affidavit filed by Mr. Kuriakose in support of the transfer applications. Paragraph 5 of the affidavit runs as

follows:

'' ""I state that my father-in-law Dr. V. K. John is a very influential citizen of Madras, is a personal friend of the Governor of Madras and Cabinet

Ministers and several Government servants of all services. I state to my knowledge he throws open several tea parties and dinners in a year and

these are frequented by leading citizens. (I state Mr. John has thrown up special parties for City Civil Court Judges) and without meaning any

disrespect or casting any aspersions on the learned Judges, it may be very embarrassing for them to hear a case in which there may be allegations

of a very personal nature against Dr. V. K. John.

I strongly feel that if my case is left to be conducted in the City Civil Court most unwittingly personal considerations may sway the minds of the

learned Judges putting me under a very heavy disadvantage both in the matter of the leading of my evidence as well as cross-examination of the

plaintiffs witnesses. The two orders that have already been passed, it is respectfully submitted, may be referred to in this connection.

The material part of paragraph 6 is as follows ""I state that Dr. V. K. John has a wide circle of political friends. Srimathi K. Manjubhashini, a well-

known political worker is a friend of Mr. and Mrs. V. K. John. I understand that she is the wife of the Fifth Assistant Judge, now retired, Sri T. V.

Subramania lyer, who heard my case. This learned Judge also has come to Dr. John''s place on several occasions.

I state that personal considerations have crept in the making of the order in I. A. No. 78 of 1957, against me. I understand on 11-3-1957 that the

interim order without notice to me appointing a Commissioner was made in Chambers by the learned Judge. Present in the Chambers were the

entire family of Dr. V, K. John, namely, Dr. and Mrs. John, my wife and V. K. John''s son K. John. I pray that the orders appointing a

Commissioner under the provisions of Order XXVI, R. 9 of the C. P. C-, may be perused in this connection.

When the applications for transfer came on for hearing before Balakrishna Aiyar J., the defendant Mr. Kuriakose admitted his inability to prove

the allegations made in paragraph 5 of his affidavit, namely, that Dr. John had thrown special parties for City Civil Court Judges and Mr.

Kuriakose made an endorsement on the affidavit in the following terms:

The allegation in paragraph 5 is unconditionally withdrawn by me. I never meant any aspersion.

The gravamen of the charges against the respondent-advocate is that the respondent should not have allowed the offending allegations to be made

without personally satisfying himself that there were prima facie grounds for making the allegations. The defence of the respondent-advocate may

be set out in his own words:

I state that my client Sri T. N. Kuriakose is a Senior Class I Officer of the Government of India, and employed in the Southern Railway as a

Senior Accounts Officer, He is the son-in-law of the complainant and till the beginning of 1957 was associated on terms of closest intimacy with

the complainant and his household. The allegations in the affidavit were based on materials supplied by my client Sri T. N. Kuriakose, and I am not

responsible for the statements contained therein.

Having regard to the status of my client and to the special means of knowledge that he had and other materials that were disclosed by him to me as

his counsel, I had no reason to believe that the statements were either reckless or false. Indeed regard being had to my client''s status in life, his

sense of responsibility, the definite material disclosed by him bearing on the question, the threats, communicated to him from time to time and the

serious consequences to himself and his rights apprehended by him. I felt that I would be failing in my duty as counsel if in spite of his taking the

responsibility for his assertions and material on which they were based I had stood in the way of his stating his case.

To appreciate the plea of the respondent it is necessary to refer to another paragraph in the affidavit of Mr. Kuriakose in the transfer application,

namely, paragraph 8 which rims thus:

I wish to bring to the notice of this Hon''ble-Court that long before the filing of the suit on 30th January 1957, Dr. V. K, John came to my house

and threatened me with complete ruin and I gave a gist of the conversation as far as I could recollect in his own words in my letter to him of 19-2-

1957-extracted hereunder :

You have insulted me. If I am Dr. V. K. John, I will have you locked up in prison within 24 hours, The Inspector General of Police is my best

friend. The Commissioner of Police is my chum. Most of the Police officers and the Judges in the City are my friends. Do you know who I am? Do

you know that I can ruin you? Have you any idea of my influence with the Central Government. I will have you dismissed from service. On 2-2-

1957, Dr. John called for Mr. T. R. Ramachandran, a Railway Officer, a friend of mine and repeated his threats which he made to me personally

on 30-1-1957. He also sent word to me through his nephew V. John of Messrs. Aleyn and Payerl and his wife that I did not know the range of his

influence and he would ask the Principal Judge of the City Civil Court, Madras, Mr. Roman, to make any order against me. This threat was

repeated to me by another nephew of his Mr. K. A. Ninan.

The Tribunal of the Bar Council approached the case from the correct standpoint. They rightly considered that it was not their function to decide

whether the allegations made by Mr. Kuriakose in his affidavit for obtaining a transfer of the two suits to this court were true or not. The only

question which fell to be decided by them was whether in view of all the circumstances of the case before and at the time of the filing of the affidavit

by Mr. Kuriakose, the respondent prima facie had adequate grounds to believe and act on the instructions of Mr. Kuriakose.

At the enquiry the respondent gave evidence; but the complainant was not examined though the Tribunal adjourned the hearing twice to enable

him to give evidence. On a consideration of all the relevant facts and circumstances the Tribunal came to the conclusion that the charge of

professional misconduct against the respondent-advocate was quite groundless. The Tribunal, however, specially discussed the propriety of the

conduct of the respondent in having allowed one statement in the affidavit of Mr. Kuriakose, namely;

.

I state that personal considerations have crept in in the making of the order in I. A. No. 78 of 1957 against me.

The Tribunal thought that in the circumstances it cannot be said that the advocate was in error in bringing to the notice of this court what his client

thought of his realised apprehensions of the past to satisfy the court about his future apprehensions about a fair trial.

We accept the report of the Bar Council that the respondent is not guilty of professional misconduct. Therefore the complaint fails and is

dismissed. An application for transfer is very often I made on the ground that the applicant is under an apprehension that he may not obtain a fair

hearing of his case before a particular judicial officer. Any affidavit filed in support of such an application is bound to cast aspersions directly or

indirectly, against the presiding officer.

More often than otherwise, allegations made against the judicial officer are not substantiated or proved. It will be an impossible state of affairs for

art advocate if he runs the risk of being held guilty of professional misconduct if allegations of misconduct on the part of a judicial officer made in an

affidavit filed by his client are found to be baseless. Of course the advocate is a responsible officer of court and member of a noble profession.

Therefore he would be guilty of grave professional misconduct if knowing that certain allegations were false he nevertheless allowed the allegations

to be made in an affidavit filed by his client.

To take an extreme example, if an advocate knew that the opposite party was not related to the presiding officer but allowed his client to make an

allegation in an affidavit filed by him that the party was related, then the advocate would certainly be guilty of professional misconduct. There is also

the responsibility on the part of the advocate to verify if there were reasonable grounds to support the allegation made by his client. At the same

time we wish to make it clear that it is not the province of the advocate to judge and there is no law which makes it incumbent on the advocate to

come to a decision whether any offending allegation is or is not true.

In this case the client instructing the respondent was a responsible officer in the service of the Government of India and the respondent was

perfectly justified in acting upon his instructions in the belief that his client would not be guilty of deliberate falsehood.

We have only one observation to make as regards the language which should generally be employed when aspersions are cast on presiding

judicial officers. Mr. Kuriakose in paragraph 6 of his affidavit made the following statement:

I state that personal considerations have crept in the making of the order in I. A. No. 78 of 1937, against me.

This statement is sought to be justified by certain facts such as the drastic nature of the order and the presence of certain persons not parties to the

litigation who are alleged to be friends of Dr. John. While these facts might lead to a suspicion or apprehension that personal considerations might

have crept in, it will be impossible to affirm as a tact that personal considerations have crept in.

We consider that it will be better for an advocate to advise his client to use language, for instance, like ""I suspect"" or ""I believe"" or ""I have reason

to think"" or ""I apprehend,"" but not use the language of positive assertion like ""I state."" These observations of ours are made for the general

guidance of members of the legal profession and do not directly affect the result of this petition.