Rajendra V Pai v/s Alex Fernandes - Appeal (civil) 6142-6144 of 2001
Appeal (Civil) 6142- 6144 of 2001 -
Supreme Court of India -
Case Decided on:
April 9, 2002
Legal Provision involved:
- Justice R. C. Lahoti.
- Justice P. Venkataram Reddi
Brief Facts Of The Case
Section 35 of the Advocates Act 1961 &
Section 38 of the Advocates Ac 1961
Cause of action in the instant case which lead to filing the present appeal
before the Hon'ble Supreme Court of India.
- That in the instant case the appellant is an advocate by profession and
is also a member of Bar Council of Maharashtra and Goa of which he is debarred of
which he had moved an appeal before the Hon'ble Supreme Court of India against
- That in the instant case after analyzing the whole case it appears that
there were about 150 villagers including appellants relatives/ family
members lands were acquired in large scale land acquisition proceedings.
- That the appellant being an advocate was much interested Inasmuch as the
appellant was an advocate and also personally interested in defending
against the proposed acquisition of land belonging to his family members,
the villagers either on their own or on persuasion confided in the
appellant, who played a leading role initially in contesting the land
acquisition proceedings and later in securing the best feasible quantum of
Arguments presented and allegations alleged by the respondent in the instant
case before the Hon'ble Supreme Court of India
- That instant case by order dated 22/01/2000, passed under Section 35 of
the Advocates Act, 1961 the appellant's name has been directed to be removed
from the State roll of advocates as the appellant being an advocate on the
rolls of the Bar Council of Maharashtra and Goa, and was been found guilty
of professional misconduct.
- That pursuant to which the appellant preferred an appeal to the Bar
Council of India which too was dismissed on 22/12/2000 by the Bar Council of
India. That being aggrieved by the above two orders the appellant preferred
an appeal under section 38 of the Advocates act.
Arguments presented by the Appellant before the Hon'ble Supreme Court of
- That the respondent in the instant case submitted that the appellant
solicited professional work from the villagers; that he settled contingent
fee depending on the quantum of compensation awarded to the claimant; and
that he identified some claimants in opening a bank account wherein the cheque
for the awarded amount of compensation was lodged and then the amount was
- That pursuant to which the counsel for the respondent further pleaded
that the complaint filed by the respondent did not suffered any financial
loss on account of the appellant.
Judgement In Brief
- That the counsel for the appellant submitted that that the appellant did
not solicit professional work as such and in fact the villagers confided in
him because of his being an advocate, also looking after litigation relating
to his family land, and the villagers had voluntarily agreed to contribute
to a collective fund raised for covering the expenses of litigation as they
were likely to make an overall saving in litigation expenses by fighting
collectively as a group and it is out of this fund that the appellant
incurred expenses including those by himself.
- That So far as false identification in opening the bank account is
concerned the appellant acted irresponsibly when he relied on other
villagers who persuaded him to make an identification which only was
acceptable to the authorities on account of his being an advocate. That this
fact finds support from the circumstance that out of little less than 150,
only 3 of the litigating landowners have filed these complaints to Bar
- That at last the counsel for the appellant pleaded most passionately
that it was the first fault, if at all, of the appellant and if debarred
for his life at his age yet in early forties, the appellant and his family would
be completely ruined.
Legal Aspects involved in the case.
- That the court specifically stated that in a group litigation wherein a
little less than 150 persons were involved only 3 have found a cause for
grievance inspiring them to complain against the appellant is a factor of
- That the Court further held that debarring a person from pursuing his
career for his life is an extreme punishment and calls for caution and
circumspection before being passed. That undoubtedly the appellant should
not have indulged into prosecuting or defending a litigation in which he had
a personal interest in view of his family property being involved.
- That on the totality of the facts and circumstances of the case the
bench stated that it would meet the ends of justice if the appellant is
suspended from practise for a period of seven years.
The appeal was instituted as per Section 38 of the Advocates Act. On looking at
the legal landscape in the area of disciplinary proceedings this scenario
emerges: In exercise of powers under section 35 contained in Chapter V entitled
"conduct of Advocates
", on receipt of a complaint against an Advocate (or suo
moto) if the State Bar Council has `reason to believe' that any Advocate on its
role has been guilty of "professional or other misconduct
proceeding may be initiated against him.
The Disciplinary Committee of the
State Bar Council is authorized to inflict punishment, including removal of his
name from the rolls of the Bar Council and suspending him from practise for a
period deemed fit by it, after giving the Advocate concerned and the Advocate
of the State an opportunity of hearing.
The disciplinary committee
under Section 42(1) of the Advocates Act is vested in the same power as a civil
court for summoning and enforcing attendance of a person and also the rights to
examine him on oath. The procedure to be followed in an Enquiry under Section 35
is outlined in Part VII of the Bar Council of India Rules(1) made under the
authority of section 60 of the Act.
Judgment Analysis/ Conclusion
That the present appeal which was filed before the Honorable Supreme Court of
India was specifically filed the to set aside the order dated 22/01/2000 by
which the appellant name was removed from State roll of advocates i.e.
Maharashtra and Goa Bar Council as the appellant was found guilty of
professional misconduct under 35 of the Advocates Act. That the present case
solely deals with the relationship and duties of an advocate towards their
client and their client's interest.
That the present case setup an cogent
example that everything is governed by law and that there is procedure to do
certain act in the dignified manner and non compliance of procedure is nothing
but an abuse of process of law and when found guilty action shall be taken.
high standards of ethics and morality in professional career particularly of an
advocate must be maintained and cases of proved professional misconduct severely
dealt . That the instant case categorically shows the awareness and
responsibility of the judiciary and the Bar Council's of various states and as
well as Bar Council of India towards the citizens in order to save the citizens
from this new creed litigants who are doing mockery of litigation and are
misguiding as well as harassing the citizens as per their whims and fancies.
the court, in dealing with cases of professional misconduct is not concerned
with ordinary legal rights, but with the special and rigid rules of professional
conduct expected of and applied to a specially privileged class of persons who,
because of their privileged status, are subject to certain disabilities which do
not attach to other men and which do not attach even to them in a
That is it very pertinent to mention here that the judgement given by the
bench in the instant case is very much reasonable as order dated 22/01/2000 did
not ascertained/ bothered to check the past of the appellant. But the two judge
bench in the while hearing the appeal from order dated 22/01/2000 ascertain the
facts and circumstances of the case in total and then modified the punishment as
there was no previous misconduct record of the appellant and also the kept in
view that if the appellant is debarred from court for his whole lifetime
because of only one mistake will not be tenable in the eye of law.
That in Noratanmal Chouraria v. M.R. Murli
it was held that the Quantum of punishment
should be determined by applying the test of proportionality and having regard
to the nature of acts complained of. That in the above mentioned case the bench
too determined the quantum of punishment passed by the order dated 22/01/2000
was not proportionate therefore reducing it to seven years.
That it very much
note worthy to mention that the Bar Council of Maharashtra and Goa set up an
example by debarring such litigant to enter into premises of court room in order
to avoid growth of such litigation and wholly condemned the act.
That the two
judge bench of the Hon'ble Supreme Court keeping in view that the Indian
Judicial system believe in reformative and deterrent theories of punishment
reduced the punishment in order to meet the ends of justice rather from
debarring the appellant and his name being removed from the above mentioned bar
council for lifetime the bench directed that the practise license of appellant
to be remained suspended for a period seven years and also to set an example in
order to prevent recurrence of such incidents.
That the said judgment is passed
through proportionality keeping in view of the past of the appellant and conduct
of the offence committed by the appellant and also by means of this judgment
the bench warned the litigant at large level to avoid such type of practices
which indeed pollute the stream of justice and therefore suspended the appellant
from practise for a period of seven years.
- Legal Ethics Accountability for Lawyers and Bench - Bar Relation - Dr, Kailash Rai ( Fourth Edition 2004)
- Rajendra V Pai v/s Alex Fernandes Appeal (civil) 6142-6144 of 2001.
- Noratanmal Chouraria v. M.R. Murli, (2004) 5 SCC 689.
Written By: Syed Zainul Hasan Rizvi
- Advocates Act, 1961.
, 5 YEAR IXth Semester, BA. LLB
Hons - Unity Law & PG College