Munni Reddi and Another vs K. Venkata Raw

Sundara Ayyar, J.—This is a case of misconduct against a first grade pleader practising in Bellary. One Muni Reddi lodged a complaint

against the pleader charging him with the misconduct for which he has been tried by the District Judge of Bellary. He subsequently withdrew his

complaint, but as the District Judge had before the withdrawal already framed a charge against a pleader, he proceeded with the inquiry, found him

guilty of the misconduct charged, and made a report to this Court u/s 14 of the Legal Practitioners'' Act.

The facts that led up to the charge are briefly as follows: An inquiry into a charge of dacoity was going on about June 1908 in the Sub-

Magistrate''s Court of Tadpatri against Muni Reddi. The pleader was engaged according to Muni Reddi''s case to defend Him both in the

Magistrate''s Court and in the Sessions Court of Bellary in the event of the case being committed to the Sessions Court for trial; and a fee of Rs.

350 was settled and paid for the pleader''s services in both Courts. The pleader appeared in the Magistrate''s Court but did not defend Muni

Reddi in the Sessions Court. Ho left the district for Rangoon without making any arrangement for Muni Reddi''s defence at the Sessions trial.

Another pleader had to be engaged for the defence. Muni Reddi was acquitted at the trial. He subsequently instituted a suit for the recovery of the

fees paid by him with interest. It was transferred to the Subordinate Judge''s Court of Bellary for trial. The pleader defended the suit contending

that his engagement with Muni Reddi was only to defend him in the Magistrate''s Court and to put in a petition for bail in the Sessions Court, and

did not include Muni Reddi''s defence at the Sessions trial, that only Rs. 268 and not the whole of the Rs, 350 stipulated for was paid to him by

Muni Reddi, that although Muni Reddi afterwards asserted that he had undertaken the defence in the Sessions Court also, he repudiated any such

agreement, and that he had not failed to fulfil the engagement actually entered into by him. The Subordinate Judge dismissed the suit upholding the

pleader''s defence. On appeal the District Judge Mr. Phillips reversed the judgment of the Subordinate Judge and found the defendant''s

contentions to be untrue. He passed an order u/s 476 of the Code of Criminal Procedure directing the prosecution of the pleader for making a

false statement on a comparatively unimportant point. The order was set aside by this Court in revision and it is unnecessary to refer to it further.

Muni Reddi afterwards put in a petition against the pleader under the Legal Practitioners'' Act requesting that an inquiry should be made into the

pleader''s conduct, but as already stated, he subsequently withdrew the petition. The charge framed against the pleader was that having agreed to

appear for Muni Reddi in the Sessions Court and received the fee for such appearance he failed to appear, and when asked to return the fee he

failed to do so, and that in defending the suit filed by Muni Reddi he denied receipt of part of the fees, and also denied that he was engaged to

work in the Sessions Court; and that therefore he was guilty of fraudulent and improper conduct in the discharge of his professional duty, an

offence u/s 13(b) of the Legal Practitioners'' Act. No fresh evidence was recorded in support of the charge and indeed there was no one to let in

evidence as Muni Reddi had withdrawn his complaint. The pleader evidently relied on the evidence he had already adduced in the civil suit but he

also adduced some fresh evidence. He examined two witnesses and gave evidence again himself. He also put in his account book and diary which

he had not filed in the civil suit. The District Judge after considering the fresh evidence adhered to the conclusions he had arrived at in his judgment

in the appeal from the Subordinate Judge''s decision in the civil suit.

Mr. Rangachariyar who has appeared for the pleader at the hearing of the charge against the pleader in this Court has raised an objection which

if well founded would go to the root of the whole proceedings before the District Judge and vitiate his report. That objection is that the Judge was

wrong in considering the judgment or the evidence in the civil suit, that the proceedings in the suit were not admissible in evidence at all in the

inquiry under the Legal Practitioners'' Act which he contended was in the nature of a criminal trial and that the charges should have boon

established by evidence adduced at the enquiry. He argues that a judgment is not admissible in evidence in any judicial proceeding except in the

cases covered by Sections 40, 41 and 42 of the Indian Evidence Act, and that none of these sections is applicable to the present case. This

contention I am entirely unable to accept. In In the matter of Rajendro Nath Mukerji (1900) 22 All. 49 a pleader who had been convicted of

fraudulently using as genuine a document which he knew to be forged was proceeded against for misconduct under paragraph 8 of the Letters

Patent of the Allahabad High Court. That Court not only regarded tho judgment convicting the pleader as good evidence of his misconduct but

refused to allow the propriety of the conviction to be questioned at the inquiry, and removed his name from the rolls of the Court. The Judicial

Committee of the Privy Council upheld its procedure. Counsel who appeared for the pleader before the Privy Council did not indeed question the

admissibility of the Criminal Judgment in evidence but merely contended that the Court would not in consequence necessarily disbar him and that

the learned Judges of the High Court went too far in not allowing the propriety of the conviction to be questioned which counsel maintained was

not justified either in law or in fact. The Privy Council dealing with this argument observed ""It is plain that the object of the present appeal is to have

the judgment of the Sessions Judge and of the High Court on the appeal reviewed and reversed in substance if not in form. This ought not to be

allowed. In effect the appellant would indirectly have an appeal against the conviction when if he had petitioned for leave to appeal against it the

leave would certainly have boon refused."" These observations shew that their Lordships treated the conviction as conclusive evidence of the

offence of which the pleader had been convicted. Their Lordships refer to the judgment of Lord Mansfield in In re Brounsall (1778) 2 C Rep. 829

where that learned Judge observed with reference to proceedings taken against a solicitor who had been convicted of stealing a guinea. ""This

application is not in the nature of a second trial or a new punishment. But the question is, whether, after that conduct of this man,"" (i.e., in stealing

the guinea, it does not say when, where or how) ""it is proper that he should continue a member of a profession which should stand free from all

suspicion.... And it is on this principle; that he is an unfit person to practise as an attorney."" Lord Mansfield evidenly appears to have regarded the

conviction as evidence of the man having committed the offence of theft. Mr. Rangachariar contends that the case before the Allahabad High Court

and the cases referred to in the Privy Council judgment therein are distinguishable from the present case, for in those cases the practitioner had

been convicted of a serious criminal offence and that such a conviction apart from the question of his being really guilty of the offence or not, would

be a sufficient ground for his being regarded as unfit to bo a practitioner in a Court. It is no doubt true that a conviction for felony or other serious

offence has been regarded '' as a sufficient ground for punishing a solicitor or an advocate for misconduct, and Section 12 of the Legal

Practitioners'' Act recognises and gives effect to this view. But what is the principle underlying it? The conviction itself is certainly not misconduct

on the part of the pleader convicted. Can it be said that whether the pleader be guilty or not, he having been subjected to the infamy of a conviction

he must be further punished by the Court in its disciplinary jurisdiction over its practitioners? I do not think that this is the reason for punishing a

pleader The Court is not bound to, nor does it always altogether remove a pleader from the exercise of his profession on the ground of his

conviction of a criminal offence. It may inflict a lighter punishment by suspending him for a period. If the infamy due to conviction be the ground of

punishment one would suppose that if it makes him unfit to practise he must be regarded as unfit to do so for ever and not for a period only. But as

already observed the Court, having regard to the gravity of the offence, the extenuating circumstances, if any, and taking all the facts of the case

into consideration, has the power in the interests of the public and of the profession to award such punishment to the pleader, or no punishment at

all. I am of opinion that the reason for punishing a person who has been convicted is that the conviction is good evidence of the commission by the

pleader of the offence in question. But, assuming that the conviction itself is regarded as good cause for punishing the pleader, would not a similar

principle apply where a civil court has found the pleader guilty of grave misconduct which requires that he should be dealt with by the Court under

its disciplinary jurisdiction? I see no reason why it should not. The principle would of course not apply where the conduct of the pleader was not

the direct issue in the Court which found him guilty of misconduct but only arose incidentally in a litigation between other parties. Such was the case

in In re Lubech (1906) 33 Calc. 151 In this case the suit related to the very misconduct charged against the pleader in the present proceedings and

I Bee no reason for holding that the judgment and the proceedings in the civil suit are not admissible in evidence. With respect to the conteution

that the judgment would not be relevant on the question of the pleader''s guilt under any of the sections of the Indian Evidence Act, I do not think it

presents any serious difficulty. It appears to me on the other hand to be a rather bold argument to urge that the finding in proceedings against the

pleader in which the question was exactly the same as at the present enquiry should be regarded as irrelevant. There is no reason why it should not

come within the provisions of Section 11 of the Indian Evidence Act which lays down that ""Facts not otherwise relevant are relevant if by

themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or

improbable.

I have more doubt whether the finding of the civil Court can be regarded as conclusive. In a criminal trial the guilt of the accused has to be

proved by the prosecution beyond all reasonable doubt and a court convicting a pleader of a criminal offence must be taken to have found the

offence proved conclusively against him. But in a civil suit the finding on the issue does not proceed on the conclusiveness of the evidence adduced

on either side but on the balance of the evidence adduced on both sides. It might for instance be said that in this case the District Judge could not

be held to have decided in the civil suit that the plaintiff had proved by the evidence beyond all reasonable doubt that the pleader had agreed to

defend the plaintiff: in the Sessions Court and that he had been paid his fee for doing so. It is unnecessary to decide this precise point in this case,

for the District Judge did not treat his own previous judgment in the civil suit as conclusive against the pleader, but allowed him to adduce any

evidence ho might choose. No complaint has been made before us that the pleader was not allowed to let in any specific evidence or that ho was

prevented from further cross-examining any particular witness examined in the civil suit on any ""specific matter. I must therefore disallow this

objection of Mr. Rangachariar.

The learned vakil reviewed the evidence adduced in the civil suit and the fresh evidence adduced at this inquiry at considerable length and

attempted to shew that the findings of the Judge cannot be sustained. I have given to both the evidence and to Mr. Rangachariar''s arguments the

anxious consideration which any case against a professional gentleman deserves, but I am unable to differ from the conclusions of the Judge. I do

not consider it necessary to repeat the reasons given by the Judge in his careful and elaborate judgment and shall only deal with the principal points

urged by Mr. Rangachariar. The first question for decision is whether the pleader undertook to defend Muni Reddi at the Sessions trial also, or

whether he merely agreed to put in a bail petition so far as the Sessions Court was concerned. The receipt (Exhibit A) given by the pleader to

Muni Reddi contains strong evidence against him in his own handwriting. His explanation that he stated in Exhibit A that the proceedings to which

the receipt related were to be in the SeEsions Court also merely because he agreed to put in a petition for bail in that Court is not satisfactory to

my mind. It is extremely unlikely that a pleader of long experience would not, if that were the case, specifically state in Exhibit A that the fee

received by him covered only a bail petition in the Sessions Court. I do not lay stress on the statement made by the pleader in Exhibit B-2 that he

would move for bail in the Sessions Court. Such a statement might have been made in the hope that he would be engaged for the Sessions trial

also. The pleader pursued in this case the extraordinary course of withholding from Muni Reddi all knowledge of his defence in the civil suit until

the actual commencement of the trial. His defence had to be ascertained by Muni Reddi from the questions put to the latter''s witnesses in cross-

examination, and the cross-examination was so skilfully contrived as to disclose as little of the defence case as possible. In fact, it would be

impossible to discover a great deal of the defence except from the evidence adduced by the pleader after the plaintiffs'' case had been closed. It is

most unfortunate for the pleader that he pursued this line of conduct but he has no one else to blame if the same references are drawn against him

as would be drawn in the case of any other litigant. It is to my mind also very improbable that Muni Reddi who had been committed for trial on a

grave criminal charge punishable with a minimum of seven years'' imprisonment would not have taken any steps to procure legal assistance at the

Sessions trial until the very day which was fixed for the trial, viz., 14th October 1908, if the pleader had not agreed to defend him. When Muni

Rddi was in the box in the civil suit he was not asked whether the reference in Exhibit A to the Sessions Court was not merely because of the

pleader''s agreement to put in a bail petition in that Court, and not because he had undertaken to defend him at the trial itself. Mr. Rangachariar has

placed much reliance on the evidence of Roshi Reddi in the civil suit in support of the defendant''s case. Roshi Reddi''s evidence has been

subjected to close analysis by the District Judge and I shall content myself with saying that I agree with him that his evidence is not trustworthy. I

do not attach weight however as the District Judge does to the pleader''s objection to Muni Reddi''s attempt to shew that he and Roshi Reddi were

not friendly to each other when Roshi Reddi gave his evidence. This attempt was not made by Muni Reddi until after the case was closed and I

cannot say that the pleader was not then entitled to object to it. It has been strenuously urged before us that Roshi Reddi was an honest man whom

the pleader did not know before it was elicited in plaintiffs'' cross-examination that he was present when the pleader was engaged for the case.

This is not quite correct as pointed out by the District Judge, for Roshi Reddi''s name was disclosed in Muni Reddi''s answer to the pleader''s

interrogatories. But what is more important is that the pleader took pains to elicit from Muni Reddi by cross-examination that Roshi Reddi was

Muni Reddi''s friend. If Roshi had not already agreed to give evidence in favour of the pleader why was this question put? The learned vakil for the

pleader has not been able to suggest any satisfactory reason. I feel convinced that the pleader had already approached Roshi Reddi and Roshi had

already agreed to support his defence. In Exhibit I Subba Rao, a second-grade pleader through whom the pleader''s engagement was arranged,

certainly wrote to the pleader as if he had been engaged to defend Muni Reddi in the Sessions Court. It is not said that the pleader repudiated the

suggestion that he had undertaken to appear at the Sessions trial. The accounts filed by the pleader at the inquiry do not support his contention, the

reference in them to-the case being merely ''the Tadpatri case,'' an identification which would be equally consistent with Muni Reddi''s contention.

No other evidence has been adduced by the pleader to prove that he did not undertake Muni Reddi''s defence in the Sessions Court. I have no

hesitation in coming to the conclusion that he did do so.

Mr. Rangachariar''s next contention is that assuming that the engagement included Muni Reddi''s defence in the Sessions Court, as the whole of

the pleader''s fee was not paid but only Rs. 218 out of Rs. 350, the pleader was absolved from the duty to appear in the Sessions Court. Here

again the pleader starts with the initial difficulty that Exhibit B-2 furnishes evidence against him in. his own handwriting. The person who actually

made the payment Subbanna has no doubt not been called but in the face of Exhibit B-2 it lies on the pleader to prove that the statement in it that

the amount was paid was incorrectly made. His case is that it was intended to be paid to his clerk but it was subsequently withheld as he was not

able to attend the Magistrate''s Court the next day. He says that the clerk told him that the payment was not made, but the clerk is the proper

person to speak to the nonpayment and he has not been called. Exhibit I, Subba Rao''s letter, was relied on by Mr. Rangachariar in support of the

pleader''s contention. But it appears to me to furnish strong evidence against him. It refers to a sum of Rs. 50 which had not been paid. This

probably refers to a further payment which the pleader says was promised to him for defending Muni''s co accused before the Magistrate. It is not

alleged to be a part of the Rs. 95 in question. The letter certainly suggests that nothing else was due to the pleader. It is argued that the amount is

not mentioned in the receipt Exhibit A. which refers to the other payments made by Muni Reddi. This may be because the man who made the

payment, Subanna, did not take the receipt with him when he paid the amount. The pleader admits that moneys paid to him would not be entered

in receipts given by him if the receipts were not produced. The accounts of the pleader are strongly relied on to disprove the payment but as

pointed out by the Judge this is only negative evidence. Might it not be that there was an omission due to the pleader''s clerk? The clerk would

have been able to tell the Court but he was not examined. The accounts were not put into Court in the Civil Suit and the explanation given is

absolutely unsatisfactory. Roshi Reddi''s evidence was as I have already stated rightly rejected by the Judge. It is admitted that the pleader or his

clerk made no demand on Muni subsequently for the Rs. 95. I must hold on the evidence available to the Court that the sum of Rs. 95 was paid to

the pleader. Having regard to this finding it is unnecessary to deal with the further question whether the non-payment of a portion of the fee would

absolve the pleader from his duty to appear for the client. In the absence of an agreement that the fee promised should be previously paid, it is to

say the least very doubtful whether a plea of non-payment of part of the fee would be of any avail. The Judge further finds that some few days

before the trial there was an altercation between Muni and the pleader in consequence of the latter''s assertion that he had not agreed to appear at

the Sessions Court for Muni and that Muni finally agreed to pay a further sum of Rs. 50 but the-pleader left the place before the date fixed for the

trial arrived without making any arrangements for the defence. The defendant examined his brother to prove that when Muni went to Bellary on the

14th October 1908 for the trial he told him that the pleader had not been engaged at all for the Sessions trial. Much emphasis has been laid on

Muni taking no steps at all for nearly a year after his trial and acquittal to complain of the pleader''s conduct or to demand the return of the fee from

him, and it is strongly urged that this was due to his consciousness that he had nothing to complain of and that his subsequent conduct was due

entirely to the instigation of the pleader''s enemies and particularly of Mr. Krishnama Charlu. But it is remarkable that although the pleader received

a notice from Muni in October 1909 and took care to ascertain that Mr. Krishnama Charlu who sent the notice had been authorised by Muni to

do so, he sent no reply to it and took no steps to deny the allegations contained therein. Practically the whole of Muni''s case was disclosed in that

notice Exhibit C, but the pleader withheld his case until he saw the whole of Muni''s evidence adduced in the Civil Suit. A client is not generally in

much haste to take proceedings against a pleader of standing. It may be thab Muni was prompted by others to make his complaint, but in the

circumstances I do not think that any inference adverse to the truth of Muni''s case can be drawn from his delay. I therefore hold it to be

satisfactorily proved that the pleader after undertaking the defence of Muni at the Sessions trial and receiving payment for it: deliberately failed to

make any arrangements for the defence on a false plea that he had not agreed to conduct the defence at the Sessions trial.

Mr. Rangachariar argued that if it should be found that the pleader did undertake to appear for Muni in the Sessions Court his default must have

been due to forgetfulness on his part as he had arranged for his other cases during his absence. The District Judge was inclined to take this view in

his judgment in the Civil Suit but this view is absolutely inconsistent not only with the pleader''s own contention both in the Civil Suit and at this

inquiry but also with the evidence of his brother that he told Muni Reddi on the 14th October 1908 that the pleader had not agreed to defend him

at all in the Sessions Court. It is very difficult to believe that a Sessions Case of so grave a nature in which the pleader had appeared in the

Magistrate''s Court would have been forgotten. In Re Venkata Rao Civil Revision Petition No. 321 of 1911 preferred by the pleader against the

judgment of the Judge in the Civil case, his counsel stated that the pleader might have forgotten the engagement. As this was inconsistent with the

case that his engagement did not include the Sessions trial Mr. Rangachariar was asked to explain the inconsistency and the Court was told that the

statement in the memorandum of Civil Revision Petition was made by Counsel without instructions. In the circumstances I am unable to accept the

suggestion made as a last resort that forgetfulness might have been the reason for the pleader not arranging for the defence.

It is argued for the pleader that even if all the facts are found against him they amount only to negligence and that the pleader cannot be punished

for mere negligence not amounting to fraud. I am of opinion that what is proved amounts to something worse than negligence; nor am I prepared to

accept the contention that a pleader who is wilfully and grossly negligent in the discharge of his duties cannot be punished for his misconduct in the

exercise of our disciplinary powers. The pleader was not guilty of a mere omission to do his duty in this case. He repudiated the agreement into

which he had entered with his client and he did so deliberately and without justification. I cannot say that this amounts to anything less than

fraudulent conduct on his part.

A passage in Cordery on Solicitors, page 180, was referred to on behalf of the pleader. I do not think that that passage lays down anything

more than that it is not all negligence which would furnish a cause of action to a client that would be punished by the Court. Certainly that is so. For

instance a pleader may not have acted with sufficient diligence in the discharge of his duties. He may not have instructed himself in the facts or the

law of a case as he should. He may have acted contrary to the client''s instructions in some particular matters, or he may have acted without

instructions. In such cases the Court would generally be content with leaving the client to his remedy in an action for damages. But negligence may

also be so gross and amount to such a violation of the duties of a pleader as an officer of the Court and to the litigant and as a member of a

responsible and honourable profession as to require that the Court should punish him in the exercise of its powers over its officers. The rule to be

followed has been very recently laid down by the Judicial Committee of the Privy Council in its judgment in a case in which a vakil of this Court

was concerned. See the judgment dated 20th June 1912 in In the matter of Krishnaswami Aiyar (1912) 35 Mad. 543 In that case the pleader was

acquitted of all direct and personal fraud, but he was found guilty of not exercising any control over his clerks who omitted to discharge their duties

and wrote false letters to the client and misled him, and of a grave omission in not informing the Court and the client of the true state of things after

he had discovered the improper conduct of his clerks. Lord SHAW in delivering the judgment of the Privy Council observes: ""Their Lordships

while not interfering, as stated with his acquittance of direct and personal fraud, do not see their way to acquit him of conduct in the management of

the appeal and of his client''s affairs which caused the procedure of the Court to be the very opposite of what all such procedure should be,

namely, first responsible, secondly orderly, and thirdly pure. In all these respects there has been a violation of the proprieties which attach to legal

procedure."" And their Lordships expressed the hope that the vakil ''in the management by those under him of affairs committed to his charge,

would in future, see to it, that such improprieties as those referred to do not recur.'' These statements clearly show that their Lordships were of

opinion that gross negligence which interfered with the responsible, orderly and pure conduct of proceedings in Court would be punishable. The

same rule has been laid down in America. ""Professional misconduct or neglect of duty as an attorney is a good ground for suspension or

disbarment.""--Cyclopedia of Law and Procedure, vol. IV, page 911. The jurisdiction of the Courts in punishing improper conduct on the part of

pleaders is expressed in very wide terms in the Legal Practitioners'' Act. Section 13, Clause (f), provides that a pleader may be punished for any

other reasonable cause. It is not in the interests of clients whose interest pleaders are bound to protect, or of the profession to which they belong,

or of the pure administration of justice, to attempt to define exhaustively the different kinds of misconduct which are punishable. Any conduct which

contravenes the orderly and pure administration of justice would be within the disciplinary jurisdiction of the Courts. The pleader in this case is a

person of long experience, and his defence to the charges against him has only aggravated his misconduct. It is not necessary to deal separately

with the charge that he made a false defence in the Civil Suit. I wish to say nothing which would deprive pleaders of the privileges in the conduct of

their own suits which other litigants possess. But it is impossible not to regard the pleader''s defence as a serious aggravation of his prior

misconduct.

I agreo with the learned CHIEF JUSTICE as to the punishment that should be imposed on the pleader.

Referred Case No. 10 of 1912.

In this case two charges were preferred against the first-grade pleader ; first that he trafficked jointly with one Marwadi Vannajee in an

actionable claim put into Court obtained by Yadalya Pichayya and Papayya against the minor heirs of one Virabhadrappa in a suit in which he was

plaintiff''s vakil; secondly that he had been and was engaged in trade under the name of K.V.S. Ramchander & Co. The District Judge Mr. B.C.

SMITH in his report to this Court has found both the charges proved. After full consideration of the evidence on record I concur in the findings

arrived at by the District Judge. It is not necessary to do more than to refer very briefly to the evidence in support of the charges.

First charge.--On the 7th September 1909 an agreement was entered into between Pichayya and Papayya, the plaintiffs in Original Suit No. 3

of 1910, on the file of the Subordinate Judge''s Court of Bellary on the one hand and Vannajee on the other hand for the transfer of the claim of the

former in Original Suit No. 3 of 1910 which was then pending for a sum of Rs, 4,750. The amount claimed was about Rs. 10,000. The evidence in

the suit had been recorded but judgment had not been delivered. The transferee Vannajee was to take all risk of loss in case the suit was

dismissed. The first-grade pleader represented the plaintiffs in the suit. According to the evidence of Papayya one of the transferors, his fee for the

suit had been paid prior to the transfer. The case of the petitioner who made the complaint against the first-grade pleader is that the transfer was

wholly or partially for the benefit of the pleader himself. The most important fact proved against the pleader is that half of the profit which

Vanna.jee made out of the bargain was paid to him. Vannajee sold his claim to one Virabhadrappa, the second witness for the petitioner, for Rs.

6,392-8-0. The profit made by Vannajee according to himself was Rs. 1,571-4-0 and of this amount, exactly one half, i.e., Rs. 785-10-0 was

received by the pleader. A sum of Rs. 70-12-0 was deducted out of the total amount of Rs. 6,392-8-0 as the interest on the loan contracted by

Vannajee at 6 per cent, per annum for the consideration paid by him for the transfer. The amount was borrowed from the firm of a banker S.

Donga Chand. It is not denied that the pleader became responsible to the banker for the payment of the amount. The pleader''s case is that he

merely became surety to the banker for the loan which Vannajee took from him.'' Vannajee was the gumastah of one Kannajee. The pleader gave

a letter or chit to Vannajee addressed to the banker. This letter was dated 9th September 1909. It is stated on behalf of the pleader that the money

had been paid by the banker to Vannajee on the 7th before he gave the letter. The first witness for the petitioner, Sivaraj, a partner of the hanker,

states that the banker''s account contains an entry dated 7th September 1909, debiting Kannajee through Vannajee with Rs. 4,000. On the 9th

September the debit was transferred to the pleader, Kannajee being credited with amount on that date. This might go to show that the pleader''s

connection with the loan commenced only after it was actually advanced by the banker but the inference does not necessarily follow. The reason

for the alteration of the entry was that Vannajeo objected to the entry in the name of Kannajee as ho claimed the benefit of the transfer of the claim

himself. It is quite clear that on the 9th it was agreed that the pleader should be regarded as the person mainly responsible to the banker for the

payment of the loan. Now why did the pleader agree to make himself responsible for the amount ? The answer suggested by the payment of half

the profits to him undoubtedly is that it was understood that he and Vannajee should go shares in the bargain. The pleader in his written statement

does not give any explanation of his receipt of Rs. 785-10-0. He merely denies the allegation that he was interested in the purchase of the claim

and states that there was nothing against law, rules or public policy even if he was interested in it. After the witnesses in the present proceedings

were examined the pleader made another short statement (not on oath) and offered himself for cross-examination, He gave no explanation of the

receipt of Rs. 785-10-0 in this statement either. In cross-examination he admitted his receipt of the amount (the payment being made directly to his

father-in-law). He a,lso stated ""this Rs. 785-10-0 might have been partly remuneration for spending my time in negotiating the transaction and

preparing the necessary documents. I have no account to show the sum due for each piece of work done."" This affords no satisfactory explanation.

He does not say that the whole amount was paid for his services in bringing about the transfer. He admits that the amount was not entered in his

accounts as fees and gives an extraordinary explanation that only remuneration for work done in court is entered as fees in his accounts. He

entered the amount under family earnings. Pappayya the transferor of the claim says that he had paid to the pleader the fee due to him for the

conduct of the suit. This is likely as the case was almost ripe for judgment when the transfer was made. If the amount was not paid as fees due for

professional work then the payment must have teen on account of a half share possessed by the pleader in the claim by virtue of the transfer.

Vannajee, who tries to support the pleader as much as he can is equally unable to show how the amount of Rs. 785-10-0 was made up. He tries

to make out that he promised to pay the pleader his fee and a present but he could not give any explanation as to how the fee would amount to Rs.

785-10-0. He admits that that amount was paid to the pleader. He says that the interest payable on the loan was 71/2 annas and not 6 per cent. so

as to throw doubt on the amount available for division between him and the pleader. But he admits that the profit made out of the transaction was

Rs. 1,571-4-0 and he also admits that he charged the pleader 8 annas per Rs. 100 interest on his whole account including this sum of Rs. 4,000.

There is absolutely nothing to support his statement that 71/2 annas and not 6 per cent. was the interest payable on the loan. In the absence of any

explanation forthcoming from the pleader I have no doubt that the Judge was justified in coming to the conclusion that it was agreed between him

and Vannajee that he should receive half the profits arising from the transfer of the claim. It is immaterial to consider whether he became interested

in the transfer on the 7th September or only on the 9th. The Judge''s conclusion is strongly supported by the evidence of the petitioner''s second

witness who purchased the claim from Vannajee. He states that he negotiated the purchase with the pleader without any reference to Vannajee and

that the payment of the consideration was made to the latter at the instance of the former. Papayya who. does not admit that the pleader had a

share in the claim admits that the negotiations for the transfer to Vannajee took place at the pleader''s house.

The next question is whether the pleader''s act in purchasing the claims amounts to grossly unprofessional misconduct within the meaning of

Section 13 of the Legal Practitioners Act. The claim was then the subject-matter of a suit in which the pleader appeared for the plaintiff. The

defendants in the suit possessed large properties but were in involved circumstances. Papayya says that it was broadly rumoured that his suit would

fail and the pleader admits that his client told him that the defendents were giving out that the suit would be dismissed. There can be no doubt that

the plaintiffs were apprehensive of failure. The pleader on the other hand was in a far better position than his client to judge of the chances of

success. There can be no doubt that the transfer was a highly speculative one. There is no force whatever in the contention that the claim ceased to

be an actionable claim because a suit had been instituted for its enforcement. That fact is absolutely immaterial according to the definition of

actionable claim in Section 3 of the Transfer of Property Act. The old definition contained in Section 130 of Act IV of 1S82 and Clause (d) of

Section 135 as it originally stood put this beyond a doubt, Mr. Rangachariar, on behalf of the pleader, contends that a purchase of an actionable

claim is not necessarily unprofessional conduct. Mr. K. Srinivasa Ayyangar, who appears on behalf of the Vakils'' Association, supports this

argument. I am quite unable to accept this contention. Section 136 enacts as follows: ""No Judge, legal practitioner, or officer connected with any

Court of Justice shall buy or traffic in, or stipulate for, or agree to receive, any share of, or interest in, any actionable claim, and no Court of Justice

shall enforce at his instance, or at the instance of any person claiming by or through him, any actionable claim, so dealt with by him as aforesaid."" It

does not merely make purchases of actionable claims by the classes of persons named in it unenforceable in law. It expressly prohibits them from

being interested in any transfer of an actionable claim. The prohibition is based on the ground of the offices held by them. I cannot doubt that the

doing of an act which a legal practitioner is forbidden to do on the ground that he is a legal practitioner is a violation of the conduct that he should

pursue as a practitioner and therefore unprofessional conduct. It is Urged that the legislature could not have intended to make the purchase of an

actionable claim by a pleader under all circumstances unprofessional conduct, that in other countries there is no such absolute prohibition, that the

New York CPC forbids purchases of actionable claims and negotiable instruments only where it is made ""with the intention and for the purposes of

bringing a suit thereon,"" and that in the French Civil Code the prohibition is confined to claims falling within the jurisdiction of the Court where the

pleader is practising. The language of Section 136 of Act IV of 1882 is in my opinion absolutely clear. It is quite immaterial that the Indian

Legislature considered it expedient to enact the rule in wider terms than the legislatures of some other countries have done. It being clear that the

pleader''s act amounted to professional misconduct, was it grossly unprofessional? I have no doubt that it was. I have already referred to the

circumstances under which the transfer was made. The Court of First Instance, as a matter of fact, passed a decree for about Rs. 11,000 though

the amount was reduced to Rs. 6,000 and odd in appeal. The purchase amounted in this case to trafficking in litigation. It is unnecessary to decide

the question whether the purchase of an actionable claim though unprofessional must amount to grossly unprofessional misconduct in every case.

Undoubtedly the onus would be on the pleader who purchases an actionable claim to show that in the circumstances of any particular cause it does

not amount to gross misconduct. I think that it would not be improper to hold that pleaders should not be permitted to do acts that are liable to

subject them to severe temptation. I am of opinion that this charge has been proved against the pleader. I agree with the learned Chief Justice as to

the punishment that should be imposed.

The second charge.--The facts relating to this charge are practically undisputed. The pleader belongs to a wealthy family possessed of various

kinds of properties including landed estates, houses, directorships in companies, secretaryship in one company, an agency under the Oriental Life

Insurance Co., some other trade agencies, shares in Joint Stock Companies and a mill at Bellary known by the name of Medum Seshanna Cotton

Manufactory. The evidence of Srinivasa Rao, the pleader''s brother, and himself a pleader, shows that in 1894 the members of the family entered

into a partnership. A fresh partnership deed (Exhibit G) was executed in 1900. According to this deed each member of the firm is authorised to

sign the name of the firm, and the partners of the firm are responsible jointly and severally for the acts of the firm as well as for the acts of each

partner and for monies reaching the hands of any one of them. The pleader states in his written statement ""The members of the firm supervised the

work of the managers and agents whenever they have leisure and during holidays."" He denies that he has engaged himself in trade. In the face of

the admitted facts, I am of opinion that the denial is absolutely untenable. It is contended that the actual work of the trade is done by clerks and

agents and that therefore the pleader cannot be said to be personally carrying on trade. I am quite unable to agree that the mere appointment of

servants or agents is sufficient to show that the trade is not carried on personally by the pleader. In that Case any trader who is able to engage

clerks and to dispense with attending to customers himself may say that he is not personally engaged in his trade. It is not denied that the agents

and managers could be dismissed at pleasure by the pleader and his partners. The admission that the members of the firm supervised their work

puts an end to all doubt on the matter. It is contended by Mr. Rangachariar that a pleader who belongs to a trading family should not be regarded

as trading, simply because other members carry on trade, the benefit of which would go to all the members of the family including the pleader. I

agree with him so far. It is quite true that every member of an undivided Hindu family cannot be said to be carrying on a trade the benefit of which

would go to the family., One member of it alone may be carrying on the trade but he may do so with family funds. Although as between the

members of the family the profit or the loss must be shared by all of them, it would not follow that every one of them is conducting the trade. Again

two or more members may alone carry on a trade as partners and the outside public may be dealing with them alone though as amongst the

members of the family inter se all might be responsible for the results of the trade. But if all the members enter into a partnership and carry on a

family trade as partners then all of them must be regarded as carrying on the trade. This is a distinction well understood in law. In the present case

the pleader who is the senior member of his family has entered into a partnership with the other members. He as much as any other member of the

family is trading with the outside public whatever may be the actual amount of work done by him in connection with the management of the trade. I

hold therefore that the pleader must be held to be personally engaged both in trade and in the other businesses referred to in the deed of

partnership. It is then argued that carrying on a trade is not professional misconduct within the meaning of Section 13 of the Legal Practitioners''

Act and that there is no rule framed by this Court under that Act which has declared it to be misconduct. Clause 27 of the rules framed under the

Act is in these terms. ""If any person, having been admitted as Pleader, accepts any appointment under Government, becomes a student of any

school or college for purposes of pursning his studies or enters into any trade or other business, or accepts employment as a Law Agent other than

a Pleader, Mukhtar or Agent certified under Act XVIII of 1879 and these rules, he shall give immediate notice thereof to the High Court, who may

thereupon suspend such Pleader from practice or pass such orders as the said Court may think fit."" It is true that engaging in trade or other

business is not definitely pronounced to be misconduct by this rule. According to it the High Court may give permission to any pleader, if it thinks

fit to do so, to engage himself in any particular trade or business. A similar rule has been framed under the Letters Patent of the High Court with

respect to High Court Vakils although curiously enough no such rule has been framed applicable to advoqates and attorneys. The pleader was

undoubtedly guilty of misconduct in not obtaining the permission of the High Court for carrying on trade or other business. He has been engaged in

trading business of an important character and it was undoubtedly his duty to apply for and obtain the High Court''s permission. No charge

however has been framed against him of violating the provisions of Clause 27 which requires him to apply for permission to the High Court and I

do not think we should find him guilty of misconduct in violating the provisions of this clause without his having an opportunity to explain his

conduct. But it does not follow from this that he is not guilty of misconduct by being engaged in trade or other business without the permission of

the Court, if his doing so is inconsistent with the profession of a pleader. The rule enables pleaders to avoid all risk of being pronounced guilty of

misconduct by obtaining the opinion of the High Court with respect to any business they may propose to undertake but the failure to take

advantage of the provisions of the rule cannot absolve them from liability to be convicted of misconduct if they act in a manner inconsistent with

their profession. It seems to me that there are two reasons why carrying on trade may be inconsistent with the profession of a pleader. One reason

is that it might prevent him from devoting that attention to his work as a pleader which his duty to the public and to the Court require that he should.

But, another and certainly not less important reason is that a pleader should not be permitted to engage himself in any pursuit which is inconsistent

with his status as a member of a learned and honourable profession. In England every person who wishes to be called to the bar has to state that

he is not and has never since his admission as a student ""been engaged in trade and that he is not an undischarged bankrupt."" I am not aware that

according to the rules of the bar in England a Barrister can be punished for being engaged in any trade or business inconsistent with his beiDg

actively engaged in the practioe of his profession, though there are various offices the holding of which is deemed to be inconsistent with practice as

a Barrister. See page 384 of Halsbury''s Laws of England, volume II. But I strongly believe that carrying on a trade would be deemed to be

generally inconsistent with the active practice of the profession of either a Barrister or an attorney. To do so may not be in some cases inconsistent

with the status itself of a legal practitioner. He would probably not be punished for having been engaged in trade or other business if he was not

practising his profession at the same time, although it is probable, I think that there are some trades and businesses which may be regarded as

altogether inconsistent with the status of an Advocate. However as the rules stand it would be open to this Court to permit any particular trade or

business being undertaken by a pleader. There might certainly be some kinds of business which would in no way be inconsistent with either the

status or the active practice of a pleader''s profession. There have been instances where engagement even in a trade has also been permitted by

this Court although I take it that this would not ordinarily be allowed. It may be that thereare enterprises which, having regard to the circumstances

of this country, the Court would sanction a pleader actively promoting and devoting a portion of his time to. Whether sanction should be given in

any case would no doubt largely depend on the character of the trade or business and the extent to which it is likely to occupy the time and

attention of the pleader. But no pleader can be permitted to derive any advantage by taking the responsibility on himself and engaging in a trade or

business without the sanction of the Court. If he does so he takes the risk of its being subsequently held that his conduct amounts to professional

misconduct If permission would not hare beeu given if he had asked for it, he must be held guilty of misconduct in having done that which the Court

would not have sanctioned. This is the rule followed where a trustee acts without the sanction of the Court in a matter for which he could have

obtained its permission. I do not consider it possible that the Court would have given permission to the pleader in this case to be engaged as a

partner of a large cotton mill and in the various other businesses which the pleader admits to be included in the concerns of the partnership. It is,

however, possible that he thought, as he says he did, that inasmuch as he would not have to devote much of his time personally to his work as a

partner he was not acting in violation of his duty as a pleader. I am willing to believe that he acted bona fide and without any intention to act

contrary to his duty as a professional man. I am therefore of opinion that it is sufficient to point out that he acted wrongly and that it is unnecessary

to impose any punishment on him for his conduct in this matter.

Referred Case No. 9 of 1912.

Sankaran Nair, J.

I think that Mr. Rangachariar is right in his contention that any charge against the pleader must be proved by evidence taken at this enquiry. But

I do not accept the further contention that the judgment in the civil suit is admissible in evidence. The pleader was the defendant in that suit. It was

dicided therein that the plaintiff had paid him his fee to appear for him at the Sessions; that he failed to appear without making any arrangement for

the conduct of the case: a decree was passed against him on these findings. The facts found against him must be taken prima facie, to be proved.

At the same time I think it is open to him to show that the judgment is wrong and should not be accepted as final for the purpose of this enquiry.

Any evidence which should have been put was not, produced in the suit will of course be viewed with grave suspicion. Nor is it clear to me why it

is not open to us at this enquiry, to consider whether the judgment is right on the materials on which it was based. There is no law preventing us

from doing so, and I see no injustice in it.

I think therefore the Judge is right in allowing the pleader to give further evidence. On the evidence Exhibit A the receipt given by the pleader to

Muni Eeddi makes it clear that he was bound to defend him at the Sessions. I doubt whether it is open to him to say in this enquiry after giving that

receipt, unless he proves mistake or some other invalidating circumstance, anything against that receipt. Because as a pleader it was his duty to

grant a proper receipt and not one which is misleading. He has however failed to prove that he did not agree to appear at the Sessions. I do not

attach any weight to the other contention that the vakil was not bound to appear as his client owed him a portion of his fee. He has failed to prove

that any balance is due.

I am also of opinion that a vakil is bound to appear and conduct his case even if the fee or any portion thereof remains unpaid, in the absence

of any agreement to the contrary or at least notice to that effect to the client in sufficient time to enable him to make other arrangements.

Mr. Rangachariar argues that a pleader like Mr. Venkata Rao would not have failed to make some arrangement about his case before going to

Rangoon. There is great force, in this argument. Mr. Venkata Rao appears to have made arrangements about all other cases. The only explanation

that suggests itself to me is that he may have really thought that he was not bound to appear for Muni Reddi at the Sessions. This is supported by

the facts that the counterfoilof the receipt kept by him showed that he was to appear only before the Magistrate and that Srinivas Rao told Subba

Rao that Mr. Venkata Rao was not engaged to defend Muni Eeddi. What took place at the meeting in September between Muni Eeddi and the

vakil also supports this view. I think that Venkata Rao believed that he was not engaged to defend Muni Reddi at the Sessions. If he had pleaded

in this enquiry after the disposal of the appeal, that he acted in this erroneous but honest belief and tendered a proper apology, speaking for myself,

the result might have been different. But he has persisted in this enquiry in trying to prove a defence already found false in a civil suit. I agree

accordingly to the order which will be pronounced by the Chief Justice.

Referred Case No. 10 of 1912.

The charge against the pleader Mr. Venkata Rao is that he purchased the claim of the plaintiff in Original Suit No. 8 of 1909 on the file of the

Subordinate Judge''s Court of Bellary. That was a suit brought by Pichayya and Papayya against certain minors for the recovery of a sum of more

than Rs. 11,000. After evidence had been heard, but before judgment was pronounced one Vannaji agreed to purchase the claim of the plaintiff''s

therein for Rs. 4,750 on 7th September 1909. Now, it appears from the evidence of the vendor, who is the prosecution fourth witness in the case,

that so far as he is concerned he had nothing to do with Mr. Venkata Rao, and that, though the negotiation for the sale took place in Venkata

Rao''s house, the claim was agreed to be sold to Vannaji who was his client without any consultation with Venkata Rao. Vannaji borrowed Rs.

4,000 of this amount from the firm of Satraji Dongerchund. Auadaji who was examined as a witness for Venkat,a Rao was a partner in that firm. It

appears from his evidence, which there is no reason to disbelieve, that when the firm lent Rs. 4,000 to Vannaji the amount was debited against one

Bhataji Khemaji who was the principal of Vannaji; two days later Vannaji told his witness that it should have been debited against him and not

against his principal; he refused to do so ; then Vannaji got a letter from Mr. Venkata Rao asking Trim to debit that amount against Venkata Rao''s

account and that was accordingly done. Mr. Venkata Rao admits having written a letter to the firm asking thorn to do so. The entry was made by

the prosecution first witness and ho also gives evidence to the same effect.

On the 7th of December, Vannaji sold the decree to one Veerabhadrappa. Veerabhadrappa was a relative of the defendants in that suit and

was naturally interested in them. He says that ho heard a rumour that Mr. Venkata Rao had purchased that decree and that he spoke to him and

arranged to purchase the decree from him ; he paid Rs. 6,392-8-0 to Venkata Rao and got an assignment of the decree from the original decree-

holder Papayyah who had agreed to sell it to Vannaji. The money was actually paid to Vannaji as Venkata Rao directed him to do so. According

to this witness he never saw Vannaji at all while the negotiations were going on. If the matter had stopped here, the case would have been one of

suspicion only.

But there is the following additional circumstance to be taken into consideration. The entire amount borrowed by Vannaji was Rs. 4,750.

Now, this with interest at 6 per cent. per annum for throe months, that is the period between September 7, the date of agreement of sale to

Vannaji and December 7, the sale of the decree to Veerabhadrappa, would come to Rs. 4,821-4-0. The difference between the two amounts Rs.

6,392-8-0 and Rs. 4,821-4-0, i.e., Rs. 1,571-4-0 is the profit and half of this is Rs. 785-10-0.

Now, it appears from the evidence and it is admitted that this amount, i.e., Rs. 785-10-0, was paid on Venkata Rao''s account to his father-in-

law. It is not explained how this particular sum cf exactly half of the profits was due to Venkata Rao. He gives no explanation, he produces no

account to show that this was due to him for any fee. There is evidence that the interest payable on the sum of Rs. 4,000 was at 6 per cent. The

evidence as to the rate of interest payable on the remaining Rs. 750 is discrepant and it is not clear what the real interest was; but there is nothing

improbable in their setting apart interest at 6 per cent. for three months for the purpose of calculating profits on the transaction. In the absence of

any explanation on the part of Venkata Rao the only conclusion that we are justified in drawing is that he received it as his share of the profits of

the transaction, and taken with the other circumstances of the case his advancing the money to Vannaji and the facts disclosed by the prosecution

second witness whose evidence is strongly corroborated by these two facts, I come to the conclusion that from the 9th September 1909 Venkata

Rao must be treated as a partner with Vannaji and equally interested with him in the decree.

The question then remains for consideration whether this is grossly improper condnct in the discharge of professional duties.

An actionable claim should hot be purchased by a pleader and in my opinion the purchase of a claim after suit offends against public policy

more than the purchase of such a claim before suit. It is trafficking in litigation and when the vendor is the client of the purchaser, the transaction in

the majority of cases is likely to be oppressive to the client. In the case before us, however, not only no undue advantage has been taken but

Venkata Rao seems to have acted fairly. Papayyah offered to accept Rs. 4,000 from Veerabadrappa in full satisfaction of his claim and he got

from Vannaji and Venkata Rao Rs. 4,750. Further Venkata Rao did not deal with the client and was not in fact the original purchaser on the 7th. It

is also proved that a portion of the interest due to the minor was remitted. As this is the first case of the kind that has come before this Court, a

lenient view might have been taken of the case, if he had pleaded good faith and placed before the Court all the facts. He has not chosen that

course. I agree to the order which will be pronounced by his Lordship the Chief Justice.

The next charge against Mr. Venkata Rao is that he has been trading in cotton and yarn with the other undivided members of his family as

partners. That he is a partner with them is proved beyond doubt by Exhibit G. The Company has also-bought a spinning mill in Bellary, borrowed

money to pay for it and to cover working expenses; it was buying cotton and selling yarn. There are, no doubt, managers and gumastas appointed

but Yenkata Rao and his brothers do not cease to? be persons carrying on trade any the less on that account. Holding then, that Venkata Rao and

his brothers are traders, the question remains whether he is guilty of any grossly unprofessional conduct. Rule 27 of the rules framed by the High

Court under the Legal Practitioners'' Act XVIII of 1879, runs thus:

If any person, having been admitted as Pleader accepts any appointment under Government, becomes a student of any school or college for

purposes of pursuing his studies or enters into any trade or other business, or accepts employment as a law Agent other than a Pleader, Mukhtar,

or agent certified under Act XVIII of 1879 and these rules, he shall give immediate notice thereof to the High Court, who may thereupon suspend

such Pleader from practice or pass such orders as the said Court may think fit.

Provided that when a pleader is appointed by or under the authority of the High Court to the office of District Munsif, whether temporarily or

permanently, it shall not be necessary to give the notice prescribed in the first part of this rule; but no Pleader while employed as District Munsif

shall be permitted to practice or do any business as a pleader before any Court.

Now it will be noticed that the High Court can take action under this rule only if the pleader who enters into any trade or business gives notice

to the High Court. Under the rule he is bound to give such notice. Then, Section 13 of the Act itself empowers the High Court to punish the

pleader in certain circumstances. The words of the section run thus:--"" The High Court may also, after such enquiry as it thinks fit, suspend or

dismiss any pleader or mukhtar holding a certificate as aforesaid:

(b) who is guilty of fraudulent or grossly improper conduct in the discharge of his professional duty, or

(f) for any other reasonable cause.

The omission to comply with Rule 27 by a pleader would probably come under Clause (b). It would certainly come under Clause (f). If,

therefore, a First Grade Pleader omits tp make the application which he is bound to submit to the High Court; under Rule 27, then he may be

suspended u/s 13 for breach of that; rule until he makes the application under that section or any further time the High Court thinks fit. If he makes

the application under Rule 27, then he can be dealt with under that rule. Apparently therefore the rule and the section provide adequate remedy for

all cases. Whether the pleader should be suspended or should be allowed to carry on a trade under Rule 27 depends upon the particular

circumstances of each case, the character of the person making the application, the nature of the trade or business, the time that the pleader would

have to devote to it. There may also arise other considerations. The trade or business may be one which it may be in public interests to foster in

that locality and (sic) other than pleaders may not be available perhaps to carry on the trade or business satisfactorily. Under this rule, applications

are being made to the High Court for sanction and they have been granted or rejected according to the particular circumstances of the case. If we

lay down a definite rule u/s 13 of the Act, it would be depriving the High Court of the discretion vested in it by Rule 27; for, it is obvious that once

a pleader is declared to be disqualified from engaging in any trade or in any particular kind of trade, it would not be right for the High Court to give

any sanction under Rule 27 to any other pleador applying for it. I am not therefore able to say that u/s 13, the High Court should declare that it is

unprofessional for a pleader to follow any trade or business. It is not required by the conditions of the legal profession or the circumstances of the

country.

It may be a question whether any rule even i