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Judgment
In this matter a vakil of this court has been called on to show cause why he should not be suspended or removed from practice by reason of his
conduct in connection with S.A. No. 1045 of 1907 in which he was retained for the appellant. Notice was issued to the vakil in pursuance of an
order made by this court with reference to the finding in the judgment in Civil Miscellaneous Petition No. 498 of 1910.
The application is made by the Advocate-General, and the question we have to consider is whether reasonable cause, within the weaning of
Section 10 of the Letters Patent, has been shown for removal or suspension of the vakil.
On the hearing of the application Mr. Rangachariar and Mr. K. Srinivasa Aiyangar appeared for the vakil. We have considered the judgment of
this court in C.M.P. No. 498 of 1910. Two affidavits have been relied upon by the vakil, one in support of the application to restore the second
appeal dated 14th February 1910 and another dated 6th December 1911. There are also affidavits by the vakil''s manager Lakshmiah, and his
clerk Bashyam. An unsworn statement by the vakil was handed to us. We have considered this statement, though as it is not on oath and the vakii
is represented before us, we were under 110 obligation to do so. We are anxious, however, that any point which may tell in favour of the vakil
should not be overlooked.
The facts are as follows:
A bill for printing the pleadings in the appeal, amounting to Rs. 48, was issued by the court in November 1907. Several applications for payment
made to the client by the clerk Lakshmiah were not attended to.
On or about May 5th, 1908, a bill for printing documents amounting to Rs. 60 was issued. Further letters to the client demanding payment were
written by or on behalf of the vakil.
On or about January 6th,1909, the client sent to the vakil a money order for Rs. 40.
On March 5th, 1909, the appeal was posted for dismissal by reason of the non-payment of the printing charges. Time for payment was
extended by two weeks and the bill was reduced from Rs. 108 to 68. On that day the client paid Rs. 28 to the vakil. The vakil states that the client
was present when the order was made for the extension of time and for the reduction of the bill. He also states-and we accept the statement-that
although the client had paid Rs. 68 to the vakil, the vakil had only some Rs. 54 or 55 to the credit of the client as he had made some small
payments in connection with the appeal out of his own pocket.
On March 15th, 1909, Lakshmiah wrote to the client as follows : "" Received the letter written by you and learnt its contents. When you were
here the printing bills were amended and it was found that Rs. 48 had to be paid for one bill and Rs. 20 for the other; up till now, exclusive of the
sum of Rs. 40 you sent to Iyer, you paid me Rs. 28 and went away. On my now asking Iyer for the money he said that the money received by him
from you was spent and asked me to get the money from you and pay Rs. 40 for the bill. Therefore as soon as you see this letter, remit to my
address Rs. 40 by money order, and then attend to other affairs. If you fail to send, the case will be spoiled and there will be no use in blaming us.
Lakshmiah says in his affidavit that he wrote this letter on his own responsibility so as to be on the safe side, and that, so far as he remembers, he
had no such conversation with his master as is stated in the letter. The letter is headed with the name of the vakii and with his office and private
address. It is signed by Lakshmiah.
The letter is a most extraordinary one. It gives no particulars of the alleged spending of the client''s money and demands another Rs. 40. The
vakil repudiates all knowledge of this letter and he says it was not until the 25th of January, 1910, that he came to know that the client''s printing
charges had not been paid.
What action, if any, the client took on receipt of this letter of March 15th we do not know, as the letters written by the client to the vakil or his
clerks have not been produced. It is not suggested that the demand for payment of a further Rs. 40 was complied with. On July 15th, 1909, the
clerk Bhashyam wrote to the client, after referring to letters written by the client : "" Your appeal is being printed. We shall let you know the date of
hearing.
On July 17th the same clerk wrote again, after referring to letters written by the client : "" The papers in the said appeal are being made ready.
You need not in any way be anxious. We shall let you know if there be anything particular.
On January 26th,1910, the appeal was posted for dismissal for non-payment of printing charges.
No one appeared for the appellant and the appeal was dismissed for default. Two days later, on January 28th, 1910, the clerk Bhashyam
wrote to the client as follows :-"" Your second appeal referred to above was posted on the 26th instant for hearing and decided against us, i.e., the
appeal was dismissed.'''' This letter is headed with the name and address, business and private, of the Vakil, and is signed "" By order-Bhashyam.
The vakil says in his affidavit that this letter was written without his knowledge. Bhashyam, the clerk, says in his affidavit that he understood from
the manager Lakshmiah that the case had been dismissed but that he did not know the details. The manager Lakshmiah in his affidavit says nothing
about it.
The vakil did nothing until his client appeared on the scene and put in an application for restoration on February 14th, 1910., The application to
restore is signed by another vakil, Mr. G. S. Ramachandra Iyer, as well as by the vakil whose conduct is the subject of this enquiry. In support of
the application to restore the appeal the vakil put in an affidavit. The affidavit is as follows:-
I.G. Krishnaswami Iyer, son of P.S. Ganapathi Iyer, a Hindu Brahmin of the age of about 34 years, High Conrt Vakil, residing at No. 3, North
Tank Square, Mylapore, Madras, do hereby solemnly and sincerely affirm and say as follows:
That I am the vakil for the appellants herein.
That Viswanatha Chetti, one of the appellants herein, paid my clerk V. Lakshmiah a sum of Rs. 28 on or about the 5th March 1909 for paying
the printing charges hereof ; he had sent me also a sum of Rs. 40 by money order towards the expenses of this appeal on or about the 6th January
1909 after the time for .the bill had expired.
That by mistake my clerk V. Lakshmiah entered the said amounts paid by the appellants to the credit of a different second appeal from the same
South Arcot District, viz., S.A. No. 49 of 1907, and the printing charges of this appeal were not paid.
That this case was posted on the evening of the 25th January 1910 for order undep Rule 100-A ''of the Translation and Printing Rules, and my
clerk Bhashyam Iyengar brought it to my notice then; I had a recollection that the party had paid the printing charges after time and that time had
been extended by the court, and on looking over the account I found that a mistake had been committed. I wanted to bring this matter to the notice
of the court on the 26th January 1910 and on that day this case was posted as the 4th case in the list.
That on the 26th day of January 1910 I had 3 fresh small cause suits posted before His Honor the Third Judge, Small Cause Court, for trial, and
two original suits Nos. 208 of 1908 and 199 of 1908 before his Lordship Justice Wallis.
That as this case was the 4th case in the list I waited for a few minutes at my chambers, made some arrangements for the Small Cause Court
work, and went to the Original Side to see when my said original cases were likely to be reached and then came to this court.
That when I reached the doors of this court it was about a few minutes after this case had been called on and dismissed for default.
The statement in paragraph 3 of the affidavit that the amounts paid by the appellants were by mistake credited to a different S.A. is admittedly
inaccurate. The books only purport to show that Rs. 40 was so credited.
According to the vakil''s own case., by a mistake of his clerk, moneys paid by the appellant in S.A. No. 1045 of 1907 were credited to
another client and as a result of this mistake the appeal was dismissed for default. The case was posted not on account of any default of the client
but on account of a mistake, or something worse than mistake, in the office of the vakil.
In this state of things the onus was heavy on the vakil to explain the true state of affairs to the court and to his client. So far as the court is
concerned he does nothing. His failure to be in court when the case was called on may have been accidental. But one would have thought in a case
where a grave injustice had been done to his client by a mistake in his office of which the vakil was personally aware, he would have been specially
careful to attend and explain how things stood. It was a duty which he owed to the court. It was a duty which he owed to his client, who bad
suffered a serious injustice. It was a duty which he owed to himself since the mistake might well give rise to questions involving the personal
honesty of the vakil or his clerks'' There may be an explanation of the vakil''s failure to appear. It seems to us there can be no satisfactory
explanation of his conduct in not bringing the matter before the court at the very earliest opportunity.
In our opinion the gravamen of the charge is not that the vakil failed to appear when the case was called on (this, as we have said, may have
been an accident) bat that having failed to appear and the appeal having been dismissed, he did not give a full explanation to the court at the earliest
opportunity. His excuse that he was under the impression that he could not mention the facts till the same Bench sat again seems to us to be idle.
As regards the client, whatever may have beta the practice of the vakil''s office as to allowing his clerks to write letters which did not come
before him, the vakil seems to have entirely misconceived the nature of his duty and responsibilities in not taking steps to see that the real
circumstances in which the appeal had been dismissed were brought to the knowledge of his client. He did nothing until the client appeared upon
the scene. To make matters worse, the letter of January 28th to which we have referred was written by the clerk Bhashyatn. This letter is a
deliberate lie. The object with which it was written was obviously to deceive the client and make him think there was nothing more to be done. We
cannot shut our eyes to the fact that if this letter had accomplished the object with which it was written, the clerk or the vakil might have got the
benefit of the client''s money and nothing more would have been heard of the case. The suggestion that the object of the clerk in writing the letter
was to "" gain time"" is not worth serious consideration. As regards the accounts, all we need say is that there are very strong reasons to suspect that
the day-book and the ledger have been altered in order to support the case that Rs. 40 were credited to the wrong second appeal.
On January 17th, 1910, the clerk Bhashyatn wrote :"" S.A. 1045 of 1907. I have written, to you on several occasions that the sum of Rs. 40
sent for the printing charges in connection with the above case is insufficient.
This goes a long way to show that the suggestion that the Rs. 40 had been credited not to appeal 1045 but to appeal 49 was an after-thought
and that the entries in the books which bear date January 6th, 1909, had not been made when the letter of January 17th, 1909, was written. The
way in which thecredit of Rs. 40 in appeal 49 is entered in the day-book strongly suggests that it was made at some time after the date which it
purports to bear. Lakshmiah''s letter of 15th March, 1909,. and Bhashyam''s letters of July 15th and 17th July, 1909, are all inconsistent with the
suggested mistake. The fact that after July, 1909, no further efforts were made to get money from the client, although the case was not posted for
orders till January, 1910, is also inconsistent with the suggestion.
In the statement which has been handed to us the vakil states that Rs. 68 was refunded to the client in February 1910. This payment does not
appear in the ledger, but we find in the day-book under date February 16th, 1910: ""To client in S.A. 1045 of 1907 Rs. 75.''''
This was after the client had come to Madras and the application for restoration had been put in.
The letters of March 15th,19O9,and January 28th, 1910,were written by Lakshmiah and Bhashyam, respectively, on paper headed with the
vakil''s name and address. The vakil tells us, in effect, that these letters were written without his knowledge or approval; It was suggested that there
was nothing unusual in this. If a practice of vakils'' clerks being allowed to write letters on behalf of their masters without their masters'' know*
ledge really exists, it seems to us that that the practice is altogether unbusiness-like. The letter of January 28th, 1910, contains a false statement-a
false statement, as it seems to us-made deliberately with a definite object in view. The vakil cannot protect himself from responsibility by saying he
knew nothing about this letter. We must hold him responsible for it. If this letter was in fact written with the vakil''s knowledge and approval, the
case would be an extremely bad one. We assume, in his favour, that what appear to be the obvious alterations in the books, made, as it seems to
us, with the object of supporting the very doubtful story as to the Rs. 40 having been credited to the wrong 8. A. by mistake, were made without
the knowledge of the vakil. There remains the fact that when the appeal was dismissed for default in circumstances which made it the duty of the
vakil to offer a prompt and full explanation to the court and to his client, he did nothing till his client appeared on the scene. He did not write to the
client himself. He gave no instructions to his clerk to write. The matter was one of special delicacy and importance, and, in our opinion, it was the
duty of the vakil either to give express instructions to his clerk in the matter or to satisfy himself that any communication which his clerk sent to the
client was a true statement. As we have said the clerk''s statement was untrue and we must hold the vakil responsible for it. We cannot take the
view that the facts show nothing more than negligence on the part of the vakil and we do not think his conduct can be excused on the ground of
want of experience or ignorance of practice.
The order of the court is that Mr. G. Krishnaswami Ayar, a vakil of this court, be suspended from practice for 6 months fom this date.
[We publish below the civil miscellaneous petition out of which this case arose :-ED.]