R.D. Saxena v. Balram Prasad Sharma(2000) 7 SCC 264

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K.T. THOMAS, J. (for himself and Sethi, J.) The main issue posed in this appeal has sequential
importance for members of the legal profession. The issue is this: has the advocate a lien for his
fees on the litigation papers entrusted to him by his client? In this case the Bar Council of India,
without deciding the above crucial issue, has chosen to impose punishment on a delinquent
advocate debarring him from practising for a period of 18 months and a fine of Rs 1000. The
advocate concerned was further directed to return all the case bundles which he got from his
respondent client without any delay. This appeal is filed by the said advocate under Section 38 of
the Advocates Act, 1961.
The appellant, now a septuagenarian, has been practising as an advocate mostly in the courts at
Bhopal, after enrolling himself as a legal practitioner with the State Bar Council of Madhya
Pradesh. According to him, he was appointed as legal advisor to Madhya Pradesh State Cooperative
Bank Ltd. (“the Bank” for short) in 1990 and the Bank continued to retain him in that capacity
during the succeeding years. He was also engaged by the said Bank to conduct cases in which the
Bank was a party. However, the said retainership did not last long. On 17-7-1993 the Bank
terminated the retainership of the appellant and requested him to return all the case files relating to
the Bank. Instead of returning the files the appellant forwarded a consolidated bill to the Bank
showing an amount of Rs 97,100 as the balance payable by the Bank towards the legal
remuneration to which he is entitled. He informed the Bank that the files would be returned only
after settling his dues.

3. Correspondence went on between the appellant and the Bank regarding the amount, if any,
   payable to the appellant as the balance due to him. The respondent Bank disclaimed any liability
   outstanding from them to the appellant. The dispute remained unresolved and the case bundles
   never passed from the appellant’s hands. As the cases were pending the Bank was anxious to have
   the files for continuing the proceedings before the courts/tribunals concerned. At the same time the
   Bank was not disposed to capitulate to the terms dictated by the appellant which they regarded as
   grossly unreasonable. A complaint was hence filed by the Managing Director of the Bank, before
   the State Bar Council (Madhya Pradesh) on 3-2-1994. It was alleged in the complaint that the
   appellant is guilty of professional misconduct by not returning the files to his client.
4. In the reply which the appellant submitted before the Bar Council he admitted that the files
   were not returned but claimed that he has a right to retain such files by exercising his right of lien
   and offered to return the files as soon as payment is made to him.
5. The complaint was then forwarded to the Disciplinary Committee of the District Bar Council.
   The State Bar Council failed to dispose of the complaint even after the expiry of one year. So under
   Section 36-B of the Advocates Act the proceedings stood transferred to the Bar Council of India.
   After holding inquiry the Disciplinary Committee of the Bar Council of India reached the
   conclusion that the appellant is guilty of professional misconduct. The Disciplinary Committee has
   stated the following in the impugned order:
   “On the basis of the complaint as well as the documents available on record we are of
   the opinion that the respondent is guilty of professional misconduct and thereby he is liable
   for punishment. The complainant is a public institution. It was the duty of the respondent to
   return the briefs to the Bank and also to appear before the Committee to revert his
   allegations made in application dated 8-11-1995. No such attempt was made by him.”
   275
6. In this appeal learned counsel for the appellant contended that the failure of the Bar Council
   of India to consider the singular defence set up by the appellant i.e. he has a lien over the files for
   his unpaid fees due to him, has resulted in miscarriage of justice. The Bank contended that there
   was no fee payable to the appellant and the amount shown by him was on account of inflating the
   fees. Alternatively, the respondent contended that an advocate cannot retain the files after the client
   terminated his engagement and that there is no lien on such files.
7. We would first examine whether an advocate has lien on the files entrusted to him by the
   client. Learned counsel for the appellant endeavoured to base his contention on Section 171 of the
   Indian Contract Act which reads thus:
   “171. Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may,
   in the absence of a contract to the contrary, retain as a security for a general balance of
   account, any goods bailed to them; but no other persons have a right to retain, as a security
   for such balance, goods bailed to them, unless there is an express contract to that effect.”
8. Files containing copies of the records (perhaps some original documents also) cannot be
   equated with the “goods” referred to in the section. The advocate keeping the files cannot amount to
   “goods bailed”. The word “bailment” is defined in Section 148 of the Contract Act as the delivery
   of goods by one person to another for some purpose, upon a contract that they shall be returned or
   otherwise disposed of according to the directions of the person delivering them, when the purpose is
   accomplished. In the case of litigation papers in the hands of the advocate there is neither delivery
   of goods nor any contract that they shall be returned or otherwise disposed of. That apart, the word
   “goods” mentioned in Section 171 is to be understood in the sense in which that word is defined in
   the Sale of Goods Act.
9. Thus understood “goods” to fall within the purview of Section 171 of the Contract Act
   should have marketability and the person to whom they are bailed should be in a position to dispose
   of them in consideration of money. In other words the goods referred to in Section 171 of the
   Contract Act are saleable goods. There is no scope for converting the case files into money, nor can
   they be sold to any third party. Hence, the reliance placed on Section 171 of the Contract Act has no
   merit.
10. In England the solicitor had a right to retain any deed, paper or chattel which had come into
    his possession during the course of his employment. It was the position in common law and it was
    later recognized as the solicitor’s right under the Solicitors Act, 1860.
11. After independence the position would have continued until the enactment of the Advocates
    Act, 1961 which has repealed a host of enactments including the Indian Bar Council Act. When the
    new Bar Council of India came into existence it framed rules called the Bar Council of India Rules
    as empowered by the Advocates Act. Such Rules contain provisions specifically prohibiting an
    advocate from adjusting the fees payable to him by a client against his own personal liability to the
    client. As a rule an advocate shall not do anything whereby he abuses or takes advantage of the
    confidence reposed in him by his client (vide Rule 24). In this context a reference can be made to
    Rules 28 and 29.
12. Thus, even after providing a right for an advocate to deduct the fees out of any money of the
    client remaining in his hand at the termination of the proceeding for which the advocate was
    engaged, it is important to notice that no lien is provided on the litigation files kept with him. In the
    conditions prevailing in India with lots of illiterate people among the litigant public it may not be
    advisable also to permit the counsel to retain the case bundle for the fees claimed by him. Any such
    lien if permitted would become susceptible to great abuses and exploitation.
    276
13. There is yet another reason which dissuades us from giving approval to any such lien. We
    are sure that nobody would dispute the proposition that the cause in a court/tribunal is far more
    important for all concerned than the right of the legal practitioner for his remuneration in respect of
    the services rendered for espousing the cause on behalf of the litigant. If a need arises for the
    litigant to change his counsel pendente lite, that which is more important should have its even
    course flow unimpeded. Retention of records for the unpaid remuneration of the advocate would
    impede such course and the cause pending judicial disposal would be badly impaired. If a medical
    practitioner is allowed a legal right to withhold the papers relating to the treatment of his patient
    which he thus far administered to him for securing the unpaid bill, that would lead to dangerous
    consequences for the uncured patient who is wanting to change his doctor. Perhaps the said
    illustration may be an overstatement as a necessary corollary for approving the lien claimed by the
    legal practitioner. Yet the illustration is not too far-fetched. No professional can be given the right
    to withhold the returnable records relating to the work done by him with his client’s matter on the
    strength of any claim for unpaid remuneration. The alternative is that the professional concerned
    can resort to other legal remedies for such unpaid remuneration.
14. A litigant must have the freedom to change his advocate when he feels that the advocate
    engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to
    the interest involved in the lis, or for any other reason. For whatever reason, if a client does not
    want to continue the engagement of a particular advocate it would be a professional requirement
    consistent with the dignity of the profession that he should return the brief to the client. It is time to
    hold that such obligation is not only a legal duty but a moral imperative.
15. In civil cases, the appointment of an advocate by a party would be deemed to be in force
    until it is determined with the leave of the court [vide Order 3 Rule 4(1) of the Code of Civil
    Procedure]. In criminal cases, every person accused of an offence has the right to consult and be
    defended by a legal practitioner of his choice which is now made a fundamental right under Article
    22(1) of the Constitution. The said right is absolute in itself and it does not depend on other laws.
    The words “of his choice” in Article 22(1) indicate that the right of the accused to change an
    advocate whom he once engaged in the same case, cannot be whittled down by that advocate by
    withholding the case bundle on the premise that he has to get the fees for the services already
    rendered to the client.
16. If a party terminates the engagement of an advocate before the culmination of the
    proceedings that party must have the entire file with him to engage another advocate. But if the
    advocate who is changed midway adopts the stand that he would not return the file until the fees
    claimed by him are paid, the situation perhaps may turn to dangerous proportions. There may be
    cases when a party has no resources to pay the huge amount claimed by the advocate as his
    remuneration. A party in a litigation may have a version that he has already paid the legitimate fee
    to the advocate. At any rate if the litigation is pending the party has the right to get the papers from
    the advocate whom he has changed so that the new counsel can be briefed by him effectively. In
    either case it is impermissible for the erstwhile counsel to retain the case bundle on the premise that
    fees were yet to be paid.
17. Even if there is no lien on the litigation papers of his client an advocate is not without
    remedies to realise the fee which he is legitimately entitled to. But if he has a duty to return the files
    to his client on being discharged the litigant too has a right to have the files returned to him, more
    so when the remaining part of the lis has to be fought in the court. This right of the litigant is to be
    read as the corresponding counterpart of the professional duty of the advocate.
    277
18. Misconduct envisaged in Section 35 of the Advocates Act is not defined. The section uses
    the expression “misconduct, professional or otherwise”. The word “misconduct” is a relative term.
    It has to be considered with reference to the subject-matter and the context wherein such term
    occurs. It literally means wrong conduct or improper conduct.
    20.Corpus Juris Secundum contains the following passage at p.740 (Vol. 7):
    “Professional misconduct may consist in betraying the confidence of a client, in
    attempting by any means to practise a fraud or impose on or deceive the court or the
    adverse party or his counsel, and in fact in any conduct which tends to bring reproach on
    the legal profession or to alienate the favourable opinion which the public should entertain
    concerning it.”
19. We, therefore, hold that the refusal to return the files to the client when he demanded
    the same amounted to misconduct under Section 35 of the Act. Hence, the appellant in the
    present case is liable to punishment for such misconduct.
20. However, regarding the quantum of punishment we are disposed to take into account
    two broad aspects:
    (1) This Court has not pronounced, so far, on the question whether the advocate has a
    lien on the files for his fees.
    (2) The appellant would have bona fide believed, in the light of decisions of certain
    High Courts, that he did have a lien.
    In such circumstances it is not necessary to inflict a harsh punishment on the appellant. A
    reprimand would be sufficient in the interest of justice on the special facts of this case.
21. We, therefore, alter the punishment to one of reprimanding the appellant. However, we
    make it clear that if any advocate commits this type of professional misconduct in future he would
    be liable to such quantum of punishment as the Bar Council will determine and the lesser
    punishment imposed now need not be counted as a precedent.
    278
    D.P. Chadha v.Triyugi Narain Mishra
    (2001) 2 SCC 221
    R.C. LAHOTI, J. – Shri D.P. Chadha, Advocate, the appellant, has been held guilty of professional
    misconduct by the Rajasthan State Bar Council and punished with suspension from practice for a
    period of five years. Shri Anil Sharma, Advocate was also proceeded against along with Shri D.P.
    Chadha, Advocate and he too having been found guilty was reprimanded. An appeal preferred by
    Shri D.P. Chadha, Advocate under Section 37 of the Advocates Act, 1961 has not only been
    dismissed but the Bar Council of India has chosen to vary the punishment of the appellant by
    enhancing the period of suspension from practice to ten years. The Bar Council of India has also
    directed notice to show cause against enhancement of punishment to be issued to Shri Anil Sharma,
    Advocate. The Bar Council of India has further directed proceedings for professional misconduct to
    be initiated against one Shri Rajesh Jain, Advocate. Shri D.P. Chadha, Advocate has preferred this
    appeal under Section 38 of the Advocates Act, 1961 (“the Act”).
22. It is not disputed that Upasana Construction Pvt. Ltd. had filed a suit for ejectment based on
    landlord-tenant relationship against the complainant Shri TriyugiNarain Mishra, who was running a
    school in the tenanted premises wherein about 2000 students were studying. Shri D.P. Chadha was
    engaged by the complainant for defending him in the suit.
23. It is not necessary to set out in extenso the contents of the complaint made by Shri
    TriyugiNarain Mishra to the Bar Council. It would suffice to notice in brief the findings
    concurrently arrived at by the State Bar Council and the Bar Council of India constituting the
    gravamen of the charge against the appellant. While the proceedings in the ejectment suit were
    going on in the civil court at Jaipur, the complainant was contesting an election in the State of U.P.
    Polling was held on 18-11-1993 and again on 22-11-1993 on which dates as also on the days
    intervening, Shri TriyugiNarain Mishra was in Chilpur in the State of U.P. looking after the election
    and was certainly not available at Jaipur. Shri D.P. Chadha was in possession of a blank
    vakalatnama and a blank paper, both signed by the complainant, given to him in the first week of
    October 1993. These documents were used for fabricating a compromise petition whereby the
    complainant has been made to suffer a decree for eviction. The blank vakalatnama was used for
    engaging Shri Anil Sharma, Advocate, on behalf of the complainant, who got the compromise
    verified. Though the compromise was detrimental to the interest of the complainant yet the factum
    of compromise and its verification was never brought to the notice of the complainant in spite of
    ample time and opportunity being available for the purpose. The proceedings of the court show a
    deliberate attempt having been made by three erring advocates to avoid the appearance of the
    complainant before the court, to prevent the complainant from gathering knowledge of the
    compromise filed in court and creating a situation whereby the court was virtually compelled to
    pass a decree though the court was feeling suspicious of the compromise and wanted presence of
    the complainant to be secured before it before the decree was passed.
24. The proceedings of the court and the several documents relating thereto, go to show that
    earlier the plaintiff Company was being represented by Shri Vidya Bhushan Sharma, Advocate. An
    application was moved on behalf of the plaintiff discharging Shri Vidya Bhushan Sharma from the
    case and instead engaging Shri Rajesh Jain, Advocate on behalf of the plaintiff and in place of Shri
    Vidya Bhushan Sharma, Advocate. On 17-11-1993 Shri D.P. Chadha was present in the court
    though the defendant was not present when an adjournment was taken from the court stating that
    there was possibility of an amicable settlement between the parties whereupon hearing was
    adjourned to 14-2-1994 for reporting compromise or framing of issues. On 20-11-1993, which was
    279
    not a date fixed for hearing, Shri Rajesh Jain and Shri Anil Sharma, Advocates appeared in the
    court on behalf of the plaintiff and the defendant respectively and filed a compromise petition. Shri
    Anil Sharma filed Vakalatnama purportedly on behalf of the complainant.
25. The compromise petition purports to have been signed by the parties as also by Shri Rajesh
    Jain, Advocate on behalf of the plaintiff and Shri Anil Sharma, Advocate on behalf of the
    defendant. The compromise petition is accompanied by another document purporting to be a receipt
    executed by the complainant acknowledging receipt of an amount of Rs. 5 lakhs by way of damages
    for the loss of school building standing on the premises. The receipt is typed but the date 20-11-
    1993 is written in hand. A revenue stamp of 20 p is fixed on the receipt in a side of the paper and at
    a place where ordinarily the ticket is not affixed. The factum of the defendant having received an
    amount of Rs 5 lakhs as consideration amount for the compromise does not find a mention in the
    compromise petition.
26. The Learned Additional Civil Judge before whom the compromise petition was filed directed
    the parties to remain personally present before the court on 17-12-1993 so as to verify the
    compromise. Instead of complying with the orders, Shri Rajesh Jain, Advocate filed a
    miscellaneous civil appeal raising a plea that the trial court was not justified in directing personal
    appearance of the parties and should have recorded the compromise on verification by the
    advocates. The complainant Shri TriyugiNarain Mishra was impleaded as respondent “through
    advocate Shri Anil Sharma” – as stated in the cause title of memo of appeal. The appeal was filed on
    20-12-1993. Notice of appeal was not issued to the complainant; the same was issued in the name of
    Shri Anil Sharma, Advocate, who accepted the same. Shri Anil Sharma, Advocate did not file any
    vakalatnama on behalf of the complainant in the appeal and instead made his appearance by filing a
    memo of appearance reciting his authority to appear in appeal on the basis of his being a counsel for
    the complainant in the trial court. This appeal was dismissed by the Learned Additional District
    Judge on 24-1-1994 holding the appeal to be not maintainable.
27. On 30-1-1994, the trial court’s record was returned to it by the appellate court. On 17-12-
    1993 also the trial court had directed personal appearance of the parties. On 16-2-1994 the counsel
    appearing for the parties (the names of the counsel not mentioned in the order-sheet dated 16-2-
    1994) took time for submitting case-law for the perusal of the court. Similar prayer was made on
    21-2-1994 and 18-3-1994. On 8-4-1994, the plaintiff was present with his counsel. The
    defendant/complainant was not present. Shri D.P. Chadha, Advocate appeared on behalf of the
    defendant and argued that personal presence of Shri TriyugiNarain Mishra was not required for
    verification of compromise and the presence of the advocate was enough for the court to verify the
    compromise and take the same on record. The court was requested to recall its earlier order
    directing personal appearance of the parties. A few decided cases were cited by Shri D.P. Chadha,
    Advocate before the court for its consideration. The trial court suspected the conduct of the counsel
    and passed a detailed order directing personal presence of the defendant to be secured before the
    court. The trial court also directed a notice to be issued to the defendant for his personal appearance
    on the next date of hearing before passing any order on the compromise petition.
28. Shri Rajesh Jain, Advocate again filed an appeal against the order dated 8-4-1994. Again the
    complainant was arrayed as a respondent in the cause title “through Shri Anil Sharma, Advocate”.
    An application was moved before the appellate court seeking a shorter date of hearing as the
    defendant was likely to go out. On 21-8-1994 the appellate court directed the record of the trial
    court to be requisitioned. Shri Anil Sharma, Advocate appeared in the appellate court without filing
    any vakalatnama from the complainant. He conceded to the appeal being allowed and personal
    appearance of the defendant not being insisted upon for the purpose of recording the compromise.
    280
    The appellate court was apparently oblivious of the legal position that such a miscellaneous appeal
    was not maintainable under any provision of law.
29. Certified copy of the order of the appellate court was obtained in hot haste. Unfortunately,
    the Presiding Officer of the trial court who was dealing with the matter, had stood transferred in the
    meanwhile. An application was filed before the successor trial Judge by Shri Rajesh Jain, Advocate
    requesting compliance with the order of the appellate court and to record the compromise and pass a
    decree in terms thereof, dispensing with the necessity of personal presence of the parties. On 23-7-
    1994, the trial Judge, left with no other option, passed a decree in terms of compromise in the
    presence of Shri Rajesh Jain and Shri Anil Sharma, Advocates. The decree directed the suit
    premises to be vacated by 30-11-1993 (the date stated in the compromise petition).
30. Shri TriyugiNarain Mishra, the complainant, moved the State Bar Council complaining of
    the professional misconduct of the three advocates who had colluded to bring the false compromise
    in existence without his knowledge and also made all efforts to prevent the complainant gathering
    knowledge of the alleged compromise.
31. In response of the notice issued by the State Bar Council, Shri Anil Sharma, Advocate
    submitted that he did not know Shri TriyugiNarain Mishra personally. The vakalatnama and the
    compromise petition were handed over to him by Shri D.P. Chadha, Advocate for the purpose of
    being filed in the court. Shri Anil Sharma was told by Shri D.P. Chadha, Advocate that he was not
    well and if there was any difficulty in securing the decree then he was available to assist Shri Anil
    Sharma. In the two miscellaneous civil appeals preferred by Shri Rajesh Jain, Advocate, Shri Anil
    Sharma accepted the notices of the appeals on the advice of Shri D.P. Chadha, Advocate.
32. Shri D.P. Chadha, Advocate took the plea that he was not aware of the compromise petition
    and the various proceedings relating thereto, leading to verification of the compromise and passing
    of the decree. He submitted that he never obtained blank paper or blank vakalatnama signed by
    anyone at any time and not even Shri TriyugiNarain Mishra, the complainant. He also submitted
    that on 8-4-1994 his presence had been wrongly recorded in the proceedings and he had not
    appeared before the court to argue that the personal presence of the parties was not required for
    verification of compromise petition filed in the court and that the counsel was competent to sign and
    verify the compromise whereon the court should act.
33. Amongst other witnesses the complainant and the three counsel have all been examined by
    the State Bar Council and cross-examined by the parties to the disciplinary proceedings. The
    defence raised by the appellant has been discarded by the State Bar Council as well as by the Bar
    Council of India in their orders. Both the authorities have dealt extensively with the improbabilities
    of the defence and assigned detailed reasons in support of the findings arrived at by them. Both the
    authorities have found the charge against the appellant proved to the hilt. The statement of the
    complainant has been believed that he had never entered into any compromise and he did not even
    have knowledge of it. His statement that Shri D.P. Chadha, the appellant, had obtained blank paper
    and blank vakalatnama signed by him and the same have been utilised for the purpose of fabricating
    the compromise and appointing Shri Anil Sharma, Advocate, has also been believed. Here it may be
    noted that Shri D.P. Chadha had denied on oath having obtained any blank paper or vakalatnama
    from Shri TriyugiNarain Mishra. However, while cross-examining the complainant first he was
    pinned down in stating that only one paper and one vakalatnama (both blank) were signed by him
    and then Shri D.P. Chadha produced from his possession one blank vakalatnama and one blank
    paper signed by the complainant.
    The Bar Council has found that the blank paper, so produced by the appellant, bore the
    signature of the complainant almost at the same place of the blank space at which the signature
    281
    appears on the disputed compromise. Production of signed blank vakalatnama and blank paper from
    the custody of the complainant before the Bar Council belied the appellant’s defence emphatically
    raised in his written statement. On 8-4-1994 the presence of the appellant is recorded by the trial
    court at least at two places in the order-sheet of that date. It is specifically recorded in the context of
    his making submissions before the court relying on several rulings to submit that personal
    appearance of the party was not necessary to have the compromise verified and taken on record.
    The appellant had not moved the court at any time for correcting the record of the proceedings and
    deleting his appearance only if the order-sheet did not correctly record the proceedings of the court.
    On and around the filing of the compromise petition before the trial court the appellant was keeping
    a watch on the proceedings and noting the appointed dates of hearing though he was not actually
    appearing in the court on the dates other than 8-4-1994. In short, it has been found both by the State
    Bar Council and the Bar Council of India that the complainant had not entered into any compromise
    and that he was not even aware of it. Blank vakalatnama and blank paper entrusted by him in
    confidence to his counsel, i.e. the appellant, were used for the purpose of bringing a false
    compromise into existence and appointing Shri Anil Sharma, Advocate for the defendant, without
    his knowledge, to have compromise verified and brought on record followed by a decree. Shri
    Vidya Bhushan Sharma, the counsel originally appointed by the plaintiff might not have agreed to a
    decree being secured in favour of the plaintiff on the basis of a false compromise and that is why he
    was excluded from the proceedings and instead Shri Rajesh Jain was brought to replace him. The
    decree resulted into closure of the school, demolition of school building and about 2000 students
    studying in the school being thrown on the road.
34. We have heard the learned counsel for the parties at length. We have also gone through the
    evidence and the relevant documents available on record of the Bar Council. We are of the opinion
    that the State Bar Council as well as the Bar Council of India have correctly arrived at the findings
    of the fact and we too find ourselves entirely in agreement with the findings so arrived at.
35. In the very nature of things there was nothing like emergency, not even an urgency for
    securing verification of compromise and passing of a decree in terms thereof. Heavens were not
    going to fall if the recording of the compromise was delayed a little and the defendant was
    personally produced in the court who was certainly not available in Jaipur being away in the State
    of U.P. contesting an election. The counsel for the parties were replaced apparently for no reason.
    The trial court entertained doubts about the genuineness of the compromise and therefore directed
    personal appearance of the parties for verification of the compromise. The counsel appearing in the
    case made all possible efforts at avoiding compliance with the direction of the trial court and to see
    that the compromise was verified and taken on record culminating into a decree without the
    knowledge of the defendant/complainant. Instead of securing presence of the defendant before the
    court, the counsel preferred miscellaneous appeals twice and ultimately succeeded in securing an
    appellate order, which too is collusive, directing the trial court to verify and take on record the
    compromise without insisting on personal appearance of the defendant. Such miscellaneous appeal,
    as was preferred, was not maintainable under Section 104 or Order 43 Rule 1 CPC or any other
    provision of law. In an earlier round the appellate court had expressed that view. The proceedings in
    the appellate court as also before the trial court show an effort on the part of the counsel appearing
    thereat to have the matter as to compromise disposed of hurriedly, obviously with a view to exclude
    the possibility of the defendant-complainant gathering any knowledge of what was transpiring.
36. Byram PestonjiGariwala v. Union of India [AIR 1991 SC 2234] is an authority for the
    proposition that in spite of the 1976 Amendment in Order 23 Rule 3 CPC which requires agreement
    or compromise between the parties to be in writing and signed by the parties, the implied authority
    of counsel engaged in the thick of the proceedings in court, to compromise or agree on matters
    282
    relating to the parties, was not taken away. Neither the decision in Byram Pestonji Gariwala nor
    any other authority cited on 8-4-1994 before the trial court dispenses with the need of the agreement
    or compromise being proved to the satisfaction of the court. In order to be satisfied whether the
    compromise was genuine and voluntarily entered into by the defendant, the trial court had felt the
    need of parties appearing in person before the court and verifying the compromise. In the facts and
    circumstances of the case the move of the counsel resisting compliance with the direction of the
    court was nothing short of being sinister. The learned Additional District Judge who allowed the
    appeal preferred by Shri Rajesh Jain unwittingly fell into trap. It was expected of the learned
    Additional District Judge, who must have been a senior judicial officer, to have seen that he was
    allowing an appeal which was not even maintainable. But for his order the learned Judge of the trial
    court would not have taken on record the compromise and passed decree in terms thereof unless the
    parties had personally appeared before him.
    In our opinion the appellant Shri D.P. Chadha was not right in resisting the order of the trial
    court requiring personal appearance of the defendant for verifying the compromise. The resistance
    speaks volumes of sinister design working in the minds of the guilty advocates. Even during the
    course of these proceedings and also during the course of hearing of the appeal before us there is
    not the slightest indication of any justification behind resistance offered by the counsel to the
    appearance of the defendant in the trial court. The correctness of the proceedings dated 8-4-1994 as
    recorded by the court cannot be doubted. The order-sheet of the trial court dated 8-4-1994 records
    as under:
    “8-4-1994
    (Cutting). Plaintiff with counsel present. Defendant’s counsel Shri D.P. Chadha present.
    Arguments heard. Judicial precedents Tashi Dorji v. Birendra Kumar Roy [AIR 1980 Cal 51],
    Vishnu Kumar v. State Bank of Bikaner and Jaipur [AIR 1976 Raj 195], Byram Pestonji cited by
    Shri D.P. Chadha perused. In the matter under consideration, compromise was filed on 20-11-1993
    and the same day the counsel were directed to keep the parties present in court but parties were not
    produced. On behalf of the plaintiff-appellant, an appeal was also preferred against the order dated
    20-11-1993 before the Hon’ble District and Sessions Judge but the order of trial court being not
    appealable, appeal has been dismissed.
    Para 40 of the decision Byram Pestonji is as under:
    ‘Accordingly, we are of the view that the words ‘in writing and signed by the parties’
    inserted by the CPC (Amendment) Act, 1976, must necessarily mean, to borrow the language of
    Order III Rule 1 CPC:
    “any appearance, …or by a pleader, appearing, applying or acting as the case may be, on
    his behalf:
    Provided that any such appearance shall, if the court so directs, be made by the party in
    person.”’
    Thus in my view the court can direct any party to be present in court under Order III Rule 1
    in compliance with the said decision of the Hon’ble Supreme Court. The counsel for the
    defendant has not produced the defendant in court. Therefore, notice be issued to the defendant
    to appear personally in court. For service of notice, the case be put up on 5-5-1994. Before
    (cutting) preparing the decree on the basis of compromise, I deem it proper in the interest of
    justice to direct the opposite party to personally appear in the court.
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    Sd/- Illegible Seal of Additional Civil Judge and Additional
    Chief Judicial Magistrate No. 6, Jaipur City.”
37. The record of the proceedings made by the court is sacrosanct. The correctness thereof
    cannot be doubted merely for asking. In State of Maharashtra v. Ramdas Shrinivas Nayak [AIR
    1982 SC 1249], this Court has held:
    “(T)he Judges’ record was conclusive. Neither lawyer nor litigant may claim to
    contradict it, except before the Judge himself, but nowhere else. The court could not launch
    into inquiry as to what transpired in the High Court.
    The Court is bound to accept the statement of the Judges recorded in their judgment, as
    to what transpired in court. It cannot allow the statement of the Judges to be contradicted
    by statements at the Bar or by affidavit and other evidence. If the Judges say in their
    judgment that something was done, said or admitted before them, that has to be the last
    word on the subject. The principle is well settled that statements of facts as to what
    transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts
    so stated and no one can contradict such statements by affidavit or other evidence. If a
    party thinks that the happenings in court have been wrongly recorded in a judgment, it is
    incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call
    the attention of the very Judges who have made the record to the fact that the statement
    made with regard to his conduct was a statement that had been made in error. That is the
    only way to have the record corrected. If no such step is taken, the matter must necessarily
    end there.”
38. The explanation given by the appellant for not moving the trial court for rectification in the
    record of proceedings is that the presiding Judge of the court had stood transferred and therefore it
    would have been futile to move for rectification. Such an explanation is a ruse merely. The
    application for rectification should have been moved as the only course permissible and, if
    necessary, the record could have been sent to that very Judge for dealing with the prayer of
    rectification wherever he was posted. In the absence of steps for rectification having been taken a
    challenge to the correctness of the facts recorded in the order-sheet of the court cannot be
    entertained, much less upheld. We agree with the finding recorded in the order under appeal that the
    proceedings dated 8-4-1994 correctly state the appellant having appeared in the court and argued
    the matter in the manner recited therein.
39. The term “misconduct” has not been defined in the Act. However, it is an expression with a
    sufficiently wide meaning. In view of the prime position which the advocates occupy in the process
    of administration of justice and justice delivery system, the courts justifiably expect from the
    lawyers a high standard of professional and moral obligation in the discharge of their duties. Any
    act or omission on the part of a lawyer which interrupts or misdirects the sacred flow of justice or
    which renders a professional unworthy of right to exercise the privilege of the profession would
    amount to misconduct attracting the wrath of disciplinary jurisdiction.
40. A mere error of judgment or expression of a reasonable opinion or taking a stand on a
    doubtful or debatable issue of law is not a misconduct; the term takes its colour from the underlying
    intention. But at the same time misconduct is not necessarily something involving moral turpitude.
    It is a relative term to be construed by reference to the subject-matter and the context wherein the
    term is called upon to be employed. A lawyer in discharging his professional assignment has a duty
    to his client, a duty to his opponent, a duty to the court, a duty to the society at large and a duty to
    himself. It needs a high degree of probity and poise to strike a balance and arrive at the place of
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    righteous stand, more so, when there are conflicting claims. While discharging duty to the court, a
    lawyer should never knowingly be a party to any deception, design or fraud. While placing the law
    before the court a lawyer is at liberty to put forth a proposition and canvass the same to the best of
    his wits and ability so as to persuade an exposition which would serve the interest of his client so
    long as the issue is capable of that resolution by adopting a process of reasoning. However, a point
    of law well settled or admitting of no controversy must not be dragged into doubt solely with a view
    to confuse or mislead the Judge and thereby gaining an undue advantage to the client to which he
    may not be entitled. Such conduct of an advocate becomes worse when a view of the law canvassed
    by him is not only unsupportable in law but if accepted would damage the interest of the client and
    confer an illegitimate advantage on the opponent. In such a situation the wrong of the intention and
    impropriety of the conduct is more than apparent. Professional misconduct is grave when it consists
    of betraying the confidence of a client and is gravest when it is a deliberate attempt at misleading
    the court or an attempt at practising deception or fraud on the court. The client places his faith and
    fortune in the hands of the counsel for the purpose of that case; the court places its confidence in the
    counsel in case after case and day after day. A client dissatisfied with his counsel may change him
    but the same is not with the court. And so the bondage of trust between the court and the counsel
    admits of no breaking.
41. It has been a saying as old as the profession itself that the court and counsel are two wheels
    of the chariot of justice. In the adversarial system, it will be more appropriate to say that while the
    Judge holds the reigns, the two opponent counsel are the wheels of the chariot. While the direction
    of the movement is controlled by the Judge holding the reigns, the movement itself is facilitated by
    the wheels without which the chariot of justice may not move and may even collapse. Mutual
    confidence in the discharge of duties and cordial relations between Bench and Bar smoothen the
    movement of the chariot. As responsible officers of the court, as they are called – and rightly, the
    counsel have an overall obligation of assisting the courts in a just and proper manner in the just and
    proper administration of justice. Zeal and enthusiasm are the traits of success in profession but
    overzealousness and misguided enthusiasm have no place in the personality of a professional.
42. An advocate while discharging duty to his client, has a right to do everything fearlessly and
    boldly that would advance the cause of his client. After all he has been engaged by his client to
    secure justice for him. A counsel need not make a concession merely because it would please the
    Judge. Yet a counsel, in his zeal to earn success for a client, need not step over the well-defined
    limits or propriety, repute and justness. Independence and fearlessness are not licences of liberty to
    do anything in the court and to earn success to a client whatever be the cost and whatever be the
    sacrifice of professional norms.
43. A lawyer must not hesitate in telling the court the correct position of law when it is
    undisputed and admits of no exception. A view of the law settled by the ruling of a superior court or
    a binding precedent even if it does not serve the cause of his client, must be brought to the notice of
    court unhesitatingly. This obligation of a counsel flows from the confidence reposed by the court in
    the counsel appearing for any of the two sides. A counsel, being an officer of court, shall apprise the
    Judge with the correct position of law whether for or against either party.
44. We are aware that a charge of misconduct is a serious matter for a practising advocate. A
    verdict of guilt of professional or other misconduct may result in reprimanding the advocate,
    suspending the advocate from practice for such period as may be deemed fit or even removing the
    name of the advocate from the roll of advocates which would cost the counsel his career. Therefore,
    an allegation of misconduct has to be proved to the hilt. The evidence adduced should enable a
    finding being recorded without any element of reasonable doubt. In the present case, both the State
    Bar Council and the Bar Council of India have arrived at, on proper appreciation of evidence, a
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    finding of professional misconduct having been committed by the appellant. No misreading or nonreading of the evidence has been pointed out. The involvement of the appellant in creating a
    situation resulting into recording of a false and fabricated compromise, apparently detrimental to the
    interest of his client, is clearly spelled out by the findings concurrently arrived at with which we
    have found no reason to interfere. The appellant canvassed a proposition of law before the court by
    pressing into service such rulings which did not support the interpretation which he was frantically
    persuading the court to accept. The provisions of Rule 3 of Order 23 are clear. The crucial issue in
    the case was not the authority of a counsel to enter into a compromise, settlement or adjustment on
    behalf of the client. The real issue was of the satisfaction of the court whether the defendant had
    really, and as a matter of fact, entered into settlement. The trial Judge entertained a doubt about it
    and therefore insisted on the personal appearance of the party to satisfy himself as to the correctness
    of the factum of compromise and genuineness of the statement that the defendant had in fact
    compromised the suit in the manner set out in the petition of compromise.
45. The power of the court to direct personal presence of any party is inherent and implicit in
    jurisdiction vesting in the court to take decision. This power is a necessary concomitant of court’s
    obligation to arrive at a satisfaction and record the same as spelt out from the phraseology of Order
    23 Rule 3 CPC. It is explicit in Order 3 Rule 1. This position of law admits of no doubt. Strong
    resistance was offered to an innocuous and cautious order of the court by canvassing an utterly
    misconceived proposition, even by invoking a wrong appellate forum and with an ulterior motive.
    The counsel appearing for the defendant, including the appellant, did their best to see that their own
    client did not appear in the court and thereby, gather knowledge of such proceedings. At no stage,
    including the hearing before this Court, the appellant has been able to explain how and in what
    manner he was serving the interest of his client, i.e. the defendant in the suit by raising the plea
    which he did. What was the urgency of having the compromise recorded without producing the
    defendant in person before the court when the court was insisting on such appearance? The
    compromise was filed in the court. The defendant was away electioneering in his constituency. At
    best or at the worst, the recording of the compromise would have been delayed by a few days. In the
    facts and circumstances of the case we find no reason to dislodge the finding of professional
    misconduct as arrived at by the State Bar Council and the Bar Council of India.
46. It has been lastly contended by the learned counsel for the appellant that the Bar Council of
    India was not justified in enhancing the punishment by increasing the period of suspension from
    practice from 5 years to 10 years. It is submitted that the order enhancing the punishment to the
    prejudice of the appellant is vitiated by non-compliance with principles of natural justice and also
    for having been passed without affording the appellant a reasonable opportunity of being heard.
47. Very wide jurisdiction has been conferred on the Bar Council of India by sub-section (2) of
    Section 37. The Bar Council of India may confirm, vary or reverse the order of the State Bar
    Council and may remit or remand the matter for further hearing or rehearing subject to such terms
    and directions as it deems fit. The Bar Council of India may set aside an order dismissing the
    complaint passed by the State Bar Council and convert it into an order holding the advocate
    proceeded against guilty of professional or other misconduct. In such a case, obviously, the Bar
    Council of India may pass an order of punishment which the State Bar Council could have passed.
    While confirming the finding of guilt the Bar Council of India may vary the punishment awarded by
    the Disciplinary Committee of the State Bar Council which power to vary would include the power
    to enhance the punishment. An order enhancing the punishment, being an order prejudicially
    affecting the advocate, the proviso mandates the exercise of such power to be performed only after
    giving the advocate reasonable opportunity of being heard. The proviso embodies the rule of fair
    hearing. Accordingly, and consistently with the well-settled principles of natural justice, if the Bar
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    Council of India proposes to enhance the punishment it must put the guilty advocate specifically on
    notice that the punishment imposed on him is proposed to be enhanced. The advocate should be
    given a reasonable opportunity of showing cause against such proposed enhancement and then he
    should be heard.
48. In the case at hand we have perused the proceedings of the Bar Council of India. The
    complainant did not file any appeal or application before the Bar Council of India praying for
    enhancement of punishment. The appeal filed by the appellant was being heard and during the
    course of such hearing it appears that the Disciplinary Committee of the Bar Council of India
    indicated to the appellant’s counsel that it was inclined to enhance the punishment. This is reflected
    by the following passage occurring in the order under appeal:
    “While hearing the matter finally parties were also heard as to the enhancement of
    sentence.”
49. The appellant himself was not present on the date of hearing. He had prayed for an
    adjournment on the ground of his sickness which was refused. The counsel for the appellant was
    heard in appeal. It would have been better if the Bar Council of India having heard the appeal would
    have first placed its opinion on record that the findings arrived at by the State Bar Council against
    the appellant were being upheld by it. Then the appellant should have been issued a reasonable
    notice calling upon him to show cause why the punishment imposed by the State Bar Council be not
    enhanced. After giving him an opportunity of filing a reply and then hearing him the Bar Council
    could have for reasons to be placed on record, enhanced the punishment. No such thing was done.
    The exercise by the Bar Council of India of power to vary the sentence to the prejudice of the
    appellant is vitiated in the present case for not giving the appellant reasonable opportunity of being
    heard. The appellant is about 60 years of age. The misconduct alleged relates to the year 1993. The
    order of the State Bar Council was passed in December 1995. In the facts and circumstances of the
    case we are not inclined to remit the matter now to the Bar Council of India for compliance with the
    requirements of proviso to sub-section (2) of Section 37 of the Act as it would entail further delay
    and as we are also of the opinion that the punishment awarded by the State Bar Council meets the
    ends of justice.
50. For the foregoing reasons the appeal is partly allowed. The finding that the appellant is
    guilty of professional misconduct is upheld but the sentence awarded by the Rajasthan State Bar
    Council suspending the appellant from practice for a period of five years is upheld and restored.
    Accordingly, the order of the Bar Council of India, only to the extent of enhancing the punishment,
    is set aside.
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    Shambhu Ram Y