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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
SUO MOTU CONTEMPT PETITION NO. 312 of 2013
In Re: Rameshwar Prasad Goyal, Advocate
J U D G M E N T
Dr. B.S. Chauhan, J.
1. Civil Appeal No. 1398 of 2005, Mohamed Israfil v. Raufunessa
Bibi (D) by L.Rs. & Ors., was dismissed in default vide order dated
8.3.2013 as none appeared to press the appeal.
An application for
restoration of the said appeal was filed by Shri Rameshwar Prasad
Goyal, Advocate-on-Record (hereinafter referred to as AOR).
The said
application was listed in the Court on 8.7.2013. The Court was of the
view that the facts contained in the application were not correct and
the counsel appearing for the applicant was not able to clarify the
same.
The Court passed over the matter and asked the counsel appearing
therein to call the AOR who would be able to explain the factual
controversy.
When the matter was taken up in the second round, the
Court was informed that Shri Rameshwar Prasad Goyal, AOR refused to
come to the Court.
It has also been pointed out that the said AOR has
filed extremely large number of cases in this Court but never appears
in the Court.
In view of the refusal of the AOR to come to the Court,
this Court had no other option but to dismiss the application.
However, the Court issued a show cause notice to the said AOR as to
why his name should not be removed from the register of AsOR, as his
conduct was ‘unbecoming’ of an AOR. Prima facie, his conduct would
tantamount to interfering with the administration of justice.
Being an
AOR, he ought to have appreciated that the institution of AsOR has
been created under the Supreme Court Rules, 1966 (hereinafter referred
to as the ‘Rules’) and no one can appear in this Court except by the
authority of an AOR; or unless instructed by an AOR.
Considering the
gravity of the issue involved herein, this Court also requested the
Association of AsOR, through its President and Secretary, to assist
the Court in dealing with this situation as our experience has been
that some AsOR, who have filed a large number of cases have been
lending their signatures for consideration and take no responsibility
for the matter and never appear in the Court.
2. In response to the same, Shri Rameshwar Prasad Goyal, AOR has
filed his reply tendering an absolute and unconditional apology and
has given an undertaking that he would not repeat such a mistake again
in future.
He has also given many reasons for not appearing in the
Court but none of them has impressed us and none of them is worth
mentioning herein.
It is not that he has entered appearance in very
few cases; the information received reveals that Mr. Rameshwar Prasad
Goyal has entered appearance in as many as 1678 cases in the year
2010, in 1423 cases in the year 2011, and in 1489 cases in the year
2012.
Upto 19.7.2013, he has entered appearance in 922 cases.
The
number of cases filed by him is too big.
3. In Vijay Dhanji Chaudhary v. Suhas Jayant Natawadkar, (2010) 1
SCC 166, this Court made an attempt to deal with the menace of lending
of signatures for a petty amount by a few AsOR without any sense of
responsibility and rendering any assistance to the Court. The record
reveals that the matter stood subsequently dismissed on some other
grounds. However, the issue of conduct of an AOR, particularly in
respect of name lending was referred to the Supreme Court Rules
Committee vide order dated 12.10.2011.
4. Relevant rules for the purpose of adjudicating upon the issue
involved herein are contained in Order IV of the Rules, which read as
under:
“4. Any advocate not being a senior advocate may, on his
fulfilling the conditions laid down in rule 5, be registered in
the Court as an advocate on record:
xxx xxx x xx x xx xxx
6. (a) An advocate on record shall, on his filing a memorandum
of appearance on behalf of a party accompanied by a vakalatnama
duly executed by the party, be entitled-
(i) to act as well as to plead for the party in the
matter and to conduct and prosecute before the Court all
proceedings that may be taken in respect of the said matter
or any application connected with the same or …
xxx xxx x xx x xx xxx
(b) No advocate other than an advocate on record shall be
entitled to file an appearance or act for a party in the Court.
xxx xxx x xx x xx xxx
8A. When, on the complaint of any person or otherwise, the
Court is of the opinion that an advocate on record has been
guilty of misconduct or of conduct unbecoming of an advocate on
record, the Court may make an order removing his name from the
register of advocates on record either permanently or for such
period as the Court may think fit and the Registrar shall
thereupon report the said fact to the Bar Council of India and
to State Bar Council concerned:
xxx xxx x xx x xx xxx
10. No advocate other than an advocate on record shall appear
and plead in any matter unless he is instructed by an advocate
on record.”
(Emphasis added)
5. The term “Otherwise” contained in Rule 8-A has been defined in
dictionary to mean contrarily, different from that to which it
relates; in a different manner; in another way; in any other way; in
some other like capacity; in other circumstances; in other respects;
and relating to a distinct and separate class altogether. The word
'otherwise' should be construed as ejesdum generis and must be
interpreted to mean some kind of legal obligation or some transaction
enforceable in law.
(See: Kavalappara Kottarathil Kochuni @ Moopil Nayar & Ors. v. The
State of Madras and Kerala & Ors., AIR 1960 SC 1080; George Da Costa
v. Controller of Estate Duty, Mysore, AIR 1967 SC 849; Krishan Gopal
v. Shri Prakashchandra & Ors., AIR 1974 SC 209; Municipal Corporation
of Delhi v. Tek Chand Bhatia, AIR 1980 SC 360; S.R. Bommai v. Union of
India & Ors., AIR 1994 SC 1918; and International Airport Authority of
India & Ors. v. Grand Slam International & Ors., (1995) 3 SCC 151).
6. This Court in Supreme Court Bar Association v. U.O.I. & Anr.,
AIR 1998 SC 1895 observed :
“……In a case of contemptuous, contumacious, unbecoming or
blameworthy conduct of an Advocate-on-Record, this Court
possesses jurisdiction, under the Supreme Court Rules itself, to
withdraw his privilege to practice as an Advocate-on-Record
because that privilege is conferred by this Court and the power
to grant the privilege includes the power to revoke or suspend
it……” (Emphasis added)
7. Thus, it is evident that this Court is competent to proceed
against an AOR suo motu, without any complaint from any person, if
prima facie it is of the opinion that an AOR is guilty of misconduct
or of conduct unbecoming of an AOR.
8. The Rules make the position clear that in order to carry out its
work smoothly, this Court has framed the rules under which the
institution of AsOR is created. Rule 8A, Order IV enables the Court
to deal with a situation where an AOR commits misconduct or he
conducts himself/herself in a manner unbecoming of an AOR.
In fact, this Court has conferred a privilege upon the AsOR. To
carry out certain responsibilities and failure to carry out the same
would definitely tantamount to unbecoming conduct of an AOR, if not
misconduct.
9. Lawyers play an important part in the administration of justice.
The profession itself requires the safeguarding of high moral
standards. As an officer of the court the overriding duty of a lawyer
is to the court, the standards of his profession and to the public.
Since the main job of a lawyer is to assist the court in dispensing
justice, the members of the Bar cannot behave with doubtful scruples
or strive to thrive on litigation. Lawyers must remember that they are
equal partners with judges in the administration of justice. If
lawyers do not perform their function properly, it would be
destructive of democracy and the rule of law. (Vide: Manak Lal v. Dr.
Prem Chand Singhvi & Ors., AIR 1957 SC 425; Smt. Jamilabai Abdul Kadar
v. Shankarlal Gulabchand & Ors., AIR 1975 SC 2202; The Bar Council of
Maharashtra v. M.V. Dabholkar, AIR 1976 SC 242; S. P. Gupta & Ors. v.
President of India & Ors., AIR 1982 SC 149; and Sheela Barse v. State
of Maharashtra, AIR 1983 SC 378).
10. In Re: Sanjiv Datta, Dy. Secy., Ministry of Information &
Broadcasting, (1995) 3 SCC 619, this Court while dealing with the
issue held :
“……Some members of the profession have been adopting perceptibly
casual approach to the practice of the profession as is evident
from their absence when the matters are called out, the filing
of incomplete and inaccurate pleadings - many times even
illegible and without personal check and verification, the non-
payment of court fees and process fees, the failure to remove
office objections, the failure to take steps to serve the
parties, et al. They do not realise the seriousness of these
acts and omissions. They not only amount to the contempt of the
court but do positive disservice to the litigants and create
embarrassing situation in the court leading to avoidable
unpleasantness and delay in the disposal of matters. This augurs
ill for the health of our judicial system….. The legal
profession is different from other professions in that what the
lawyers do, affects not only an individual but the
administration of justice which is the foundation of the
civilised society…… The casualness and indifference with which
some members practice the profession are certainly not
calculated to achieve that purpose or to enhance the prestige
either of the profession or of the institution they are
serving..”
(Emphasis added)
11. “Law is no trade, briefs no merchandise”. An advocate being an
officer of the court has a duty to ensure smooth functioning of the
Court. He has to revive the person in distress and cannot exploit the
helplessness of innocent litigants. A wilful and callous disregard for
the interests to the client may in a proper case be characterised as
conduct unbefitting an advocate. (See : In the matter of Mr. ‘P’, an
Advocate, AIR 1963 SC 1313; T.C. Mathai & Anr. v. District & Sessions
Judge, Thiruvananthapuram, AIR 1999 SC 1385 D.P. Chadha v. Triyugi
Narain Mishra & Ors., AIR 2001 SC 457; and Smt. Poonam v. Sumit
Tanwar, AIR 2010 SC 1384)
12. If the AOR does not discharge his responsibility in a
responsible manner because he does not appear whenever the matter is
listed or does not take any interest in conducting the case, it would
amount to not playing any role whatsoever. In such a fact-situation,
lending signatures for consideration would amount to misconduct of his
duty towards court. In case the AOR is only lending his signatures
without taking any responsibility for conduct of a case, the very
purpose of having the institution of AsOR stands defeated.
13. In Ex Capt. Harish Uppal v. UOI & Anr., AIR 2003 SC 739, this
court has categorically held that if a lawyer refuses to attend the
court, it is not only unprofessional but also unbecoming of a lawyer
disentitling him to continue to appear in Court.
“. ……The very sight of an advocate, who is guilty of contempt of
court or of unbecoming or unprofessional conduct, standing in
the court would erode the dignity of the court and even corrode
its majesty besides impairing the confidence of the public in
the efficacy of the institution of the courts.”
14. In Lt. Col. S.J. Chaudhary v. State (Delhi Admn.), AIR 1984 SC
618, this Court held that it is the duty of every advocate who accepts
a brief to attend the trial and this duty cannot be overstressed. It
was further reminded by this Court that “having accepted the brief, he
will be committing a breach of his professional duty, if he so fails
to attend.” The court further relied on Warvelle’s Legal Ethics, at p.
182 which is as under:
“A lawyer is under obligation to do nothing that shall detract
from the dignity of the court, of which he is himself a sworn
officer and assistant. He should at all times pay deferential
respect to the Judge, and scrupulously observe the decorum of
the courtroom.”
15. This Court has depreciated the practice of name lending in Tahil
Ram Issardas Sadarangani & Ors. v. Ramchand Issardas Sadarangani &
Anr., AIR 1993 SC 1182, wherein the High Court had dealt with a case
of a firm of advocates merely lending its name and did not take
further responsibility to plead or act. The High Court found such an
arrangement most unfortunate and contrary to the duty and obligation
of a counsel towards the clients as well as to the court. Approving
the said view, this Court held as under:
“Legal profession must give an introspection to itself. The
general impression which the profession gives today is that the
element of service is disappearing and the profession is being
commercialised. It is for the members of the Bar to act and
take positive steps to remove this impression before it is too
late.”
16. The institution of AsOR is to facilitate the working of the
Court as contained in Order IV Rule 6. It entitles an AOR to act,
plead, conduct and prosecute before this Court in respect of all
matters filed by him. To act means to file an appearance or any
pleading or any application in the Court and such a task has been
entrusted solely upon an AOR and no other advocate can file an
appearance or act for the party without his authorisation. The Court
conducts an examination before enrolling a person as an AOR and the
basic purpose to have such an examination is to verify whether the
person is well versed with the rules, practice and procedure of the
Court and to test his legal acumen and ethics. He must be fully
acquainted with the drafting of proceedings as well as its manner of
filing in the Registry. An AOR is not beneficial only to the Court
but also assists in the working of the Registry. In such a fact-
situation, an AOR cannot lend his signatures just to camouflage the
requirement of rules. He, in addition to doing the work of drafting,
filing appearance and assisting the Court, must maintain professional
ethics and proper standards so that the Court may rely upon him
without any reservation.
17. Availability of justice to all which is a social goal, must be
made a reality. However, it cannot be done unless there is an easy
access to the Bench and the Bar both. If the Court is not working
properly or if the Bar is not rendering proper assistance, it would
lead to a travesty of justice and destroy the basic democracy, which
would tantamount to failure of administration of justice. The people
and particularly, the common man would cease to be beneficiaries of
democracy. Justice is based on law and law in modern democracy is too
complicated, therefore, it is not possible for an ordinary litigant to
raise his voice without engaging a lawyer. In case the lawyer is
negligent or not willing to assist the court, or fails to perform his
duty towards the court, loss to the poor litigant is beyond
imagination.
18. In the present era, the legal profession, once known as a noble
profession, has been converted into a commercial undertaking.
Litigation has become so expensive that it has gone beyond the reach
and means of a poor man. For a longtime, the people of the nation have
been convinced that a case would not culminate during the life time
of the litigant and is beyond the ability of astrologer to anticipate
his fate. It is in this context that a suggestion has been made to
amend the statutory provision in respect of substitution of the legal
representative(s) of a party, to the effect that both the plaintiff
and defendant must make a statement in the plaint/written statement
respectively as who would be his legal representative(s) as they
cannot expect that matter could be decided in their life time. Any
order passed by the Trial Court on the application of substitution of
legal representative(s) is generally challenged time and again right
up to this Court with the proceedings in the Courts below remaining
stayed.
19. Transparency in functioning of the court and accountability with
respect to the Bench and the Bar are fundamentals in a democracy.
Therefore, the Bench as well as the Bar have to carry out their duties
with full sense of responsibility.
The Courts exist for the litigants, where a lawyer has to plead
the case of his client with full sincerity and responsibility. In a
system, as revealed in the instant case, a half baked lawyer accepts
the brief from a client coming from a far distance, prepares the
petition and asks an AOR, having no liability towards the case, to
lend his signatures for a petty amount. The AOR happily accepts this
unholy advance and obliges the lawyer who has approached him without
any further responsibility. The AOR does not know the client, has no
attachment to the case and no emotional sentiments towards the poor
cheated clients. Such an attitude tantamounts to cruelty in the most
crude form towards the innocent litigant. In our humble opinion,
conduct of such AOR is certainly unbecoming of an AOR. Though the
observations by this Court in Tahil Ram Issardas Sadarangani (supra)
were made two decades ago, the same are apposite even today. The Bar
failed to have an introspection and improve the situation.
20. The facts of this case present a very sorry state of affair.
A
noble profession has been allowed to be converted into a profession of
cheating.
An AOR, whom the litigant has never briefed or engaged, has
lended his signature for a petty amount with a clear understanding
that he would not take any responsibility for any act in any of the
proceedings in the Registry or the Court in the matter.
The Advocate
who has been obliged by such an AOR must be going inside the Registry
in an unauthorised manner and must be appearing in the Court directly
or engaging a senior advocate without any knowledge/authorisation of
the AOR.
It is beyond our imagination what could be more devastating
and degrading for the institution of AsOR.
Even a few of them
indulging in such an obnoxious practice spoils the working of this
court, without realising that Bench and Bar, both have to give strict
adherence to moral code.
21. An AOR is the source of lawful recognition through whom the
litigant is represented and therefore, he cannot deviate from the
norms prescribed under the Rules.
The Rules have been framed to
authorise a legally trained person with prescribed qualification to
appear, plead and act on behalf of a litigant.
Thus, not only is his
physical presence but effective assistance in the court is also
required.
He is not a guest artist nor is his job of a service
provider nor is he in a professional business nor can he claim to be a
law tourist agent for taking litigants for a tour of the court
premises.
An AOR is a seeker of justice for the citizens of the
country.
Therefore, he cannot avoid court or be casual in operating
and his presence in the court is necessary.
There are times when
pleadings and records have to be explained and thus, he has to do a
far more serious job and cannot claim that his role is merely a formal
one or his responsibilities simply optional.
An AOR is accountable
and responsible for whatever is written and pleaded by putting his
appearance to maintain solemnity of records of the court.
The multi-tier operation of one lawyer hauling a client and then
acting as a facilitator for some other lawyer to draw proceedings or
engage another lawyer for arguing a case is definitely an unchartered
and unofficial system which cannot be accepted as in essence, it
tantamounts to a trap for litigants which is neither ethically nor
professionally a sound practice.
Such conduct is ridiculously low from
what is expected of a lawyer.
This kind of conduct directly affects
the functioning of the court and causes severe damage that at times
becomes irreparable and uncompensatory.
It is ironic that an AOR who
has cleared an examination to get himself authorised lawfully for
assisting the court becomes conspicuous by his absence though his
presence is maintained on record.
The defective psychology of not
appearing in the court is contrary to the first principle of advocacy.
22. Shri Sushil Jain, the learned President of the Advocates-on-
Record Association, has given certain suggestions to check activities
of such unscrupulous AsOR in the Court and Registry but as those
suggestions had earlier been forwarded to the Supreme Court Rules
Committee, it is not desirable for us to issue any direction in this
regard. However, it is clarified that as per the Rules, no
unauthorised person can deal with the Registry and Registry must
strictly adhere to the Rules.
23. At the time of hearing, Shri Rameshwar Prasad Goyal, AOR, not
only tendered absolute and unconditional apology and promised not to
repeat the misconduct in future but also assured the court that he
would remain present in the court in all the cases where he had
entered appearance for either of the parties.
Some senior advocates
and a large number of members of the Bar have also asked the Court to
pardon him as he would abide by the undertaking given by him.
24. In view of above, though the conduct of Shri Goyal, AOR, has been reprehensible and not worth pardoning but considering the fact and circumstances involved herein, his conduct is censured and we warn him not to behave in future in such manner and to appear in court in all the cases wherever he has entered appearance. The court shall examine his conduct for one year from now and if no improvement is found, may initiate the proceedings again. With these observations, the matter stands closed for the time being.
…...................................J.
(Dr. B.S. CHAUHAN)
.....................................J.
(S.A. BOBDE)
NEW DELHI;
AUGUST 22, 2013.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
SUO MOTU CONTEMPT PETITION NO. 312 of 2013
In Re: Rameshwar Prasad Goyal, Advocate
J U D G M E N T
Dr. B.S. Chauhan, J.
1. Civil Appeal No. 1398 of 2005, Mohamed Israfil v. Raufunessa
Bibi (D) by L.Rs. & Ors., was dismissed in default vide order dated
8.3.2013 as none appeared to press the appeal.
An application for
restoration of the said appeal was filed by Shri Rameshwar Prasad
Goyal, Advocate-on-Record (hereinafter referred to as AOR).
The said
application was listed in the Court on 8.7.2013. The Court was of the
view that the facts contained in the application were not correct and
the counsel appearing for the applicant was not able to clarify the
same.
The Court passed over the matter and asked the counsel appearing
therein to call the AOR who would be able to explain the factual
controversy.
When the matter was taken up in the second round, the
Court was informed that Shri Rameshwar Prasad Goyal, AOR refused to
come to the Court.
It has also been pointed out that the said AOR has
filed extremely large number of cases in this Court but never appears
in the Court.
In view of the refusal of the AOR to come to the Court,
this Court had no other option but to dismiss the application.
However, the Court issued a show cause notice to the said AOR as to
why his name should not be removed from the register of AsOR, as his
conduct was ‘unbecoming’ of an AOR. Prima facie, his conduct would
tantamount to interfering with the administration of justice.
Being an
AOR, he ought to have appreciated that the institution of AsOR has
been created under the Supreme Court Rules, 1966 (hereinafter referred
to as the ‘Rules’) and no one can appear in this Court except by the
authority of an AOR; or unless instructed by an AOR.
Considering the
gravity of the issue involved herein, this Court also requested the
Association of AsOR, through its President and Secretary, to assist
the Court in dealing with this situation as our experience has been
that some AsOR, who have filed a large number of cases have been
lending their signatures for consideration and take no responsibility
for the matter and never appear in the Court.
2. In response to the same, Shri Rameshwar Prasad Goyal, AOR has
filed his reply tendering an absolute and unconditional apology and
has given an undertaking that he would not repeat such a mistake again
in future.
He has also given many reasons for not appearing in the
Court but none of them has impressed us and none of them is worth
mentioning herein.
It is not that he has entered appearance in very
few cases; the information received reveals that Mr. Rameshwar Prasad
Goyal has entered appearance in as many as 1678 cases in the year
2010, in 1423 cases in the year 2011, and in 1489 cases in the year
2012.
Upto 19.7.2013, he has entered appearance in 922 cases.
The
number of cases filed by him is too big.
3. In Vijay Dhanji Chaudhary v. Suhas Jayant Natawadkar, (2010) 1
SCC 166, this Court made an attempt to deal with the menace of lending
of signatures for a petty amount by a few AsOR without any sense of
responsibility and rendering any assistance to the Court. The record
reveals that the matter stood subsequently dismissed on some other
grounds. However, the issue of conduct of an AOR, particularly in
respect of name lending was referred to the Supreme Court Rules
Committee vide order dated 12.10.2011.
4. Relevant rules for the purpose of adjudicating upon the issue
involved herein are contained in Order IV of the Rules, which read as
under:
“4. Any advocate not being a senior advocate may, on his
fulfilling the conditions laid down in rule 5, be registered in
the Court as an advocate on record:
xxx xxx x xx x xx xxx
6. (a) An advocate on record shall, on his filing a memorandum
of appearance on behalf of a party accompanied by a vakalatnama
duly executed by the party, be entitled-
(i) to act as well as to plead for the party in the
matter and to conduct and prosecute before the Court all
proceedings that may be taken in respect of the said matter
or any application connected with the same or …
xxx xxx x xx x xx xxx
(b) No advocate other than an advocate on record shall be
entitled to file an appearance or act for a party in the Court.
xxx xxx x xx x xx xxx
8A. When, on the complaint of any person or otherwise, the
Court is of the opinion that an advocate on record has been
guilty of misconduct or of conduct unbecoming of an advocate on
record, the Court may make an order removing his name from the
register of advocates on record either permanently or for such
period as the Court may think fit and the Registrar shall
thereupon report the said fact to the Bar Council of India and
to State Bar Council concerned:
xxx xxx x xx x xx xxx
10. No advocate other than an advocate on record shall appear
and plead in any matter unless he is instructed by an advocate
on record.”
(Emphasis added)
5. The term “Otherwise” contained in Rule 8-A has been defined in
dictionary to mean contrarily, different from that to which it
relates; in a different manner; in another way; in any other way; in
some other like capacity; in other circumstances; in other respects;
and relating to a distinct and separate class altogether. The word
'otherwise' should be construed as ejesdum generis and must be
interpreted to mean some kind of legal obligation or some transaction
enforceable in law.
(See: Kavalappara Kottarathil Kochuni @ Moopil Nayar & Ors. v. The
State of Madras and Kerala & Ors., AIR 1960 SC 1080; George Da Costa
v. Controller of Estate Duty, Mysore, AIR 1967 SC 849; Krishan Gopal
v. Shri Prakashchandra & Ors., AIR 1974 SC 209; Municipal Corporation
of Delhi v. Tek Chand Bhatia, AIR 1980 SC 360; S.R. Bommai v. Union of
India & Ors., AIR 1994 SC 1918; and International Airport Authority of
India & Ors. v. Grand Slam International & Ors., (1995) 3 SCC 151).
6. This Court in Supreme Court Bar Association v. U.O.I. & Anr.,
AIR 1998 SC 1895 observed :
“……In a case of contemptuous, contumacious, unbecoming or
blameworthy conduct of an Advocate-on-Record, this Court
possesses jurisdiction, under the Supreme Court Rules itself, to
withdraw his privilege to practice as an Advocate-on-Record
because that privilege is conferred by this Court and the power
to grant the privilege includes the power to revoke or suspend
it……” (Emphasis added)
7. Thus, it is evident that this Court is competent to proceed
against an AOR suo motu, without any complaint from any person, if
prima facie it is of the opinion that an AOR is guilty of misconduct
or of conduct unbecoming of an AOR.
8. The Rules make the position clear that in order to carry out its
work smoothly, this Court has framed the rules under which the
institution of AsOR is created. Rule 8A, Order IV enables the Court
to deal with a situation where an AOR commits misconduct or he
conducts himself/herself in a manner unbecoming of an AOR.
In fact, this Court has conferred a privilege upon the AsOR. To
carry out certain responsibilities and failure to carry out the same
would definitely tantamount to unbecoming conduct of an AOR, if not
misconduct.
9. Lawyers play an important part in the administration of justice.
The profession itself requires the safeguarding of high moral
standards. As an officer of the court the overriding duty of a lawyer
is to the court, the standards of his profession and to the public.
Since the main job of a lawyer is to assist the court in dispensing
justice, the members of the Bar cannot behave with doubtful scruples
or strive to thrive on litigation. Lawyers must remember that they are
equal partners with judges in the administration of justice. If
lawyers do not perform their function properly, it would be
destructive of democracy and the rule of law. (Vide: Manak Lal v. Dr.
Prem Chand Singhvi & Ors., AIR 1957 SC 425; Smt. Jamilabai Abdul Kadar
v. Shankarlal Gulabchand & Ors., AIR 1975 SC 2202; The Bar Council of
Maharashtra v. M.V. Dabholkar, AIR 1976 SC 242; S. P. Gupta & Ors. v.
President of India & Ors., AIR 1982 SC 149; and Sheela Barse v. State
of Maharashtra, AIR 1983 SC 378).
10. In Re: Sanjiv Datta, Dy. Secy., Ministry of Information &
Broadcasting, (1995) 3 SCC 619, this Court while dealing with the
issue held :
“……Some members of the profession have been adopting perceptibly
casual approach to the practice of the profession as is evident
from their absence when the matters are called out, the filing
of incomplete and inaccurate pleadings - many times even
illegible and without personal check and verification, the non-
payment of court fees and process fees, the failure to remove
office objections, the failure to take steps to serve the
parties, et al. They do not realise the seriousness of these
acts and omissions. They not only amount to the contempt of the
court but do positive disservice to the litigants and create
embarrassing situation in the court leading to avoidable
unpleasantness and delay in the disposal of matters. This augurs
ill for the health of our judicial system….. The legal
profession is different from other professions in that what the
lawyers do, affects not only an individual but the
administration of justice which is the foundation of the
civilised society…… The casualness and indifference with which
some members practice the profession are certainly not
calculated to achieve that purpose or to enhance the prestige
either of the profession or of the institution they are
serving..”
(Emphasis added)
11. “Law is no trade, briefs no merchandise”. An advocate being an
officer of the court has a duty to ensure smooth functioning of the
Court. He has to revive the person in distress and cannot exploit the
helplessness of innocent litigants. A wilful and callous disregard for
the interests to the client may in a proper case be characterised as
conduct unbefitting an advocate. (See : In the matter of Mr. ‘P’, an
Advocate, AIR 1963 SC 1313; T.C. Mathai & Anr. v. District & Sessions
Judge, Thiruvananthapuram, AIR 1999 SC 1385 D.P. Chadha v. Triyugi
Narain Mishra & Ors., AIR 2001 SC 457; and Smt. Poonam v. Sumit
Tanwar, AIR 2010 SC 1384)
12. If the AOR does not discharge his responsibility in a
responsible manner because he does not appear whenever the matter is
listed or does not take any interest in conducting the case, it would
amount to not playing any role whatsoever. In such a fact-situation,
lending signatures for consideration would amount to misconduct of his
duty towards court. In case the AOR is only lending his signatures
without taking any responsibility for conduct of a case, the very
purpose of having the institution of AsOR stands defeated.
13. In Ex Capt. Harish Uppal v. UOI & Anr., AIR 2003 SC 739, this
court has categorically held that if a lawyer refuses to attend the
court, it is not only unprofessional but also unbecoming of a lawyer
disentitling him to continue to appear in Court.
“. ……The very sight of an advocate, who is guilty of contempt of
court or of unbecoming or unprofessional conduct, standing in
the court would erode the dignity of the court and even corrode
its majesty besides impairing the confidence of the public in
the efficacy of the institution of the courts.”
14. In Lt. Col. S.J. Chaudhary v. State (Delhi Admn.), AIR 1984 SC
618, this Court held that it is the duty of every advocate who accepts
a brief to attend the trial and this duty cannot be overstressed. It
was further reminded by this Court that “having accepted the brief, he
will be committing a breach of his professional duty, if he so fails
to attend.” The court further relied on Warvelle’s Legal Ethics, at p.
182 which is as under:
“A lawyer is under obligation to do nothing that shall detract
from the dignity of the court, of which he is himself a sworn
officer and assistant. He should at all times pay deferential
respect to the Judge, and scrupulously observe the decorum of
the courtroom.”
15. This Court has depreciated the practice of name lending in Tahil
Ram Issardas Sadarangani & Ors. v. Ramchand Issardas Sadarangani &
Anr., AIR 1993 SC 1182, wherein the High Court had dealt with a case
of a firm of advocates merely lending its name and did not take
further responsibility to plead or act. The High Court found such an
arrangement most unfortunate and contrary to the duty and obligation
of a counsel towards the clients as well as to the court. Approving
the said view, this Court held as under:
“Legal profession must give an introspection to itself. The
general impression which the profession gives today is that the
element of service is disappearing and the profession is being
commercialised. It is for the members of the Bar to act and
take positive steps to remove this impression before it is too
late.”
16. The institution of AsOR is to facilitate the working of the
Court as contained in Order IV Rule 6. It entitles an AOR to act,
plead, conduct and prosecute before this Court in respect of all
matters filed by him. To act means to file an appearance or any
pleading or any application in the Court and such a task has been
entrusted solely upon an AOR and no other advocate can file an
appearance or act for the party without his authorisation. The Court
conducts an examination before enrolling a person as an AOR and the
basic purpose to have such an examination is to verify whether the
person is well versed with the rules, practice and procedure of the
Court and to test his legal acumen and ethics. He must be fully
acquainted with the drafting of proceedings as well as its manner of
filing in the Registry. An AOR is not beneficial only to the Court
but also assists in the working of the Registry. In such a fact-
situation, an AOR cannot lend his signatures just to camouflage the
requirement of rules. He, in addition to doing the work of drafting,
filing appearance and assisting the Court, must maintain professional
ethics and proper standards so that the Court may rely upon him
without any reservation.
17. Availability of justice to all which is a social goal, must be
made a reality. However, it cannot be done unless there is an easy
access to the Bench and the Bar both. If the Court is not working
properly or if the Bar is not rendering proper assistance, it would
lead to a travesty of justice and destroy the basic democracy, which
would tantamount to failure of administration of justice. The people
and particularly, the common man would cease to be beneficiaries of
democracy. Justice is based on law and law in modern democracy is too
complicated, therefore, it is not possible for an ordinary litigant to
raise his voice without engaging a lawyer. In case the lawyer is
negligent or not willing to assist the court, or fails to perform his
duty towards the court, loss to the poor litigant is beyond
imagination.
18. In the present era, the legal profession, once known as a noble
profession, has been converted into a commercial undertaking.
Litigation has become so expensive that it has gone beyond the reach
and means of a poor man. For a longtime, the people of the nation have
been convinced that a case would not culminate during the life time
of the litigant and is beyond the ability of astrologer to anticipate
his fate. It is in this context that a suggestion has been made to
amend the statutory provision in respect of substitution of the legal
representative(s) of a party, to the effect that both the plaintiff
and defendant must make a statement in the plaint/written statement
respectively as who would be his legal representative(s) as they
cannot expect that matter could be decided in their life time. Any
order passed by the Trial Court on the application of substitution of
legal representative(s) is generally challenged time and again right
up to this Court with the proceedings in the Courts below remaining
stayed.
19. Transparency in functioning of the court and accountability with
respect to the Bench and the Bar are fundamentals in a democracy.
Therefore, the Bench as well as the Bar have to carry out their duties
with full sense of responsibility.
The Courts exist for the litigants, where a lawyer has to plead
the case of his client with full sincerity and responsibility. In a
system, as revealed in the instant case, a half baked lawyer accepts
the brief from a client coming from a far distance, prepares the
petition and asks an AOR, having no liability towards the case, to
lend his signatures for a petty amount. The AOR happily accepts this
unholy advance and obliges the lawyer who has approached him without
any further responsibility. The AOR does not know the client, has no
attachment to the case and no emotional sentiments towards the poor
cheated clients. Such an attitude tantamounts to cruelty in the most
crude form towards the innocent litigant. In our humble opinion,
conduct of such AOR is certainly unbecoming of an AOR. Though the
observations by this Court in Tahil Ram Issardas Sadarangani (supra)
were made two decades ago, the same are apposite even today. The Bar
failed to have an introspection and improve the situation.
20. The facts of this case present a very sorry state of affair.
A
noble profession has been allowed to be converted into a profession of
cheating.
An AOR, whom the litigant has never briefed or engaged, has
lended his signature for a petty amount with a clear understanding
that he would not take any responsibility for any act in any of the
proceedings in the Registry or the Court in the matter.
The Advocate
who has been obliged by such an AOR must be going inside the Registry
in an unauthorised manner and must be appearing in the Court directly
or engaging a senior advocate without any knowledge/authorisation of
the AOR.
It is beyond our imagination what could be more devastating
and degrading for the institution of AsOR.
Even a few of them
indulging in such an obnoxious practice spoils the working of this
court, without realising that Bench and Bar, both have to give strict
adherence to moral code.
21. An AOR is the source of lawful recognition through whom the
litigant is represented and therefore, he cannot deviate from the
norms prescribed under the Rules.
The Rules have been framed to
authorise a legally trained person with prescribed qualification to
appear, plead and act on behalf of a litigant.
Thus, not only is his
physical presence but effective assistance in the court is also
required.
He is not a guest artist nor is his job of a service
provider nor is he in a professional business nor can he claim to be a
law tourist agent for taking litigants for a tour of the court
premises.
An AOR is a seeker of justice for the citizens of the
country.
Therefore, he cannot avoid court or be casual in operating
and his presence in the court is necessary.
There are times when
pleadings and records have to be explained and thus, he has to do a
far more serious job and cannot claim that his role is merely a formal
one or his responsibilities simply optional.
An AOR is accountable
and responsible for whatever is written and pleaded by putting his
appearance to maintain solemnity of records of the court.
The multi-tier operation of one lawyer hauling a client and then
acting as a facilitator for some other lawyer to draw proceedings or
engage another lawyer for arguing a case is definitely an unchartered
and unofficial system which cannot be accepted as in essence, it
tantamounts to a trap for litigants which is neither ethically nor
professionally a sound practice.
Such conduct is ridiculously low from
what is expected of a lawyer.
This kind of conduct directly affects
the functioning of the court and causes severe damage that at times
becomes irreparable and uncompensatory.
It is ironic that an AOR who
has cleared an examination to get himself authorised lawfully for
assisting the court becomes conspicuous by his absence though his
presence is maintained on record.
The defective psychology of not
appearing in the court is contrary to the first principle of advocacy.
22. Shri Sushil Jain, the learned President of the Advocates-on-
Record Association, has given certain suggestions to check activities
of such unscrupulous AsOR in the Court and Registry but as those
suggestions had earlier been forwarded to the Supreme Court Rules
Committee, it is not desirable for us to issue any direction in this
regard. However, it is clarified that as per the Rules, no
unauthorised person can deal with the Registry and Registry must
strictly adhere to the Rules.
23. At the time of hearing, Shri Rameshwar Prasad Goyal, AOR, not
only tendered absolute and unconditional apology and promised not to
repeat the misconduct in future but also assured the court that he
would remain present in the court in all the cases where he had
entered appearance for either of the parties.
Some senior advocates
and a large number of members of the Bar have also asked the Court to
pardon him as he would abide by the undertaking given by him.
24. In view of above, though the conduct of Shri Goyal, AOR, has been reprehensible and not worth pardoning but considering the fact and circumstances involved herein, his conduct is censured and we warn him not to behave in future in such manner and to appear in court in all the cases wherever he has entered appearance. The court shall examine his conduct for one year from now and if no improvement is found, may initiate the proceedings again. With these observations, the matter stands closed for the time being.
…...................................J.
(Dr. B.S. CHAUHAN)
.....................................J.
(S.A. BOBDE)
NEW DELHI;
AUGUST 22, 2013.
