Whether litigant can seek condonation of delay on account of misconduct of Advocate?

 At this stage, it is required to be noted that the Appellant is a resident of Nepeansea Road, Mumbai and also owns property in Awas village Taluka Alibag which is a weekend destination for many of the well to do persons from Mumbai. The suit properties are situated in the close vicinity in Taluka Alibag. The Appellant is therefore a person of means and the fact that the Appellant has chosen to purchase another property pending the instant suit shows that he is a person conversant with the legal niceties as immediately after purchasing the property he has chosen to file an application for his impleadment in the suit in the year 2010. The Appellant therefore by no means can be said to be a lay person or a person who can be said to be totally ignorant of the legal procedure. It is on the touchstone of the aforesaid facts that the issue would have to be considered. At this stage, it would be gainful to refer to the judgment of the Apex Court in Basawaraj's case (supra). The Apex Court has after referring to various judgments which are an exposition as to what constitutes "sufficient cause" has summarised the law on the issue in paragraph 15 of its judgment. The said paragraph 15 is reproduced hereinunder :-

"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

11. The Apex Court therefore has held that in case a party is held to be negligent or lacking in bona fides or not acted diligently or inactive, there cannot be justified ground to condone the delay. In the instant case, as indicated above, the Appellant has sought to put the blame on his advocate. It is the case of the Appellant that the advocate did not give him proper guidance in respect of the filing of the Written Statement and also did not inform him about the decision in the suit. The said reason coming from a person of the standing of the Appellant who has all the wherewithal at his disposal cannot be accepted. The question that begs an answer is what prevented the Appellant from making inquiries with his advocate as regards the developments in the suit. It is very easy to blame the advocate for whatever has transpired in the litigation. There is absolutely no explanation forthcoming on the said aspect. It has to be borne in mind that the Appellant is an educated person staying in an up market area of Mumbai and also owning property at village Awas in Taluka Alibag which is a weekend destination of the well to do persons from Mumbai. It has also come in the evidence of the Appellant that he visits Alibag very often. The standard applicable to him obviously would be different than say a lay villager. It is also required to be noted that apart from purchasing the suit property pendent-lite, the Appellant also did not whilst the suit was pending in the Trial Court take steps to file his Written Statement nor there is anything on record to show that he made any inquiries with his advocate about the suit. Such a conduct cannot be countenanced of a person belonging to the Appellants standing. The conduct of the Appellant is therefore one of gross negligence and also indolence. The Appellant it seems has chosen to file the Appeal as per his own convenience. A Court vested with the power of considering whether discretion has been properly exercised cannot loose sight of such conduct.

Bombay High Court

Vasant Vithal Gawand vs Shantaram Tukaram Gawand (Decd) ... on 28 October, 2015

Bench: R.M. Savant

                                                  
   CIVIL APPELLATE JURISDICTION

    WRIT PETITION NO.9929 OF 2015

Citation;2016(2) ALLMR 235

Print Page

Whether Advocate can take brief from opposite party of his former client?

 Regulation 33 of Section II of Part VI of Bar Council of India Rules, which is said to have been violated by the Appellant, reads as under:

An advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party.

 The spirit contained in the Rule 33, quoted above, is that where a lawyer has committed breach of his duty in respect of fiduciary obligation arising out of the relationship between himself and his client, he is guilty of misconduct of conflict of interest. The above rule restrains a lawyer from acting for another client on the ground of conflict of interest as the duty of the lawyer owed to his former client, not to act prejudicially to his interest, does not come to an end with the termination of the earlier case of his client with whom he had shared confidential information. The basis of Rule 33 is that there is likelihood or possibility of misuse of the instructions given to the lawyer by his former client.

 In V.C. Rangadurai v. D. Gopalan and Ors. MANU/SC/0029/1978 : (1979) 1 SCC 308, this Court has held that where advocate finds there would be conflict of interest in taking up a case of his client, he should not accept the brief of such client, against interest of his earlier client. Defining the word "misconduct", this Court in Noratanmal Chourasia v. M.R. Mulri and Anr.MANU/SC/0361/2004 : (2004) 5 SCC 689, has explained that misconduct is a transgression of some established and definite rule of action.

 In O.P. Sharma and Ors. v. High Court of Punjab and Haryana MANU/SC/0571/2011 : (2011) 6 SCC 86, this Court has made following observations in paragraphs 37 to 39 relating to ethical standards in the judicial system, and the same are reproduced as under:

37. A court, be that of a Magistrate or the Supreme Court is sacrosanct. The integrity and sanctity of an institution which has bestowed upon itself the responsibility of dispensing justice is ought to be maintained. All the functionaries, be it advocates, Judges and the rest of the staff ought to act in accordance with morals and ethics.
38. An advocate's duty is as important as that of a Judge. Advocates have a large responsibility towards the society. A client's relationship with his/her advocate is underlined by utmost trust. An advocate is expected to act with utmost sincerity and respect. In all professional functions, an advocate should be diligent and his conduct should also be diligent and should conform to the requirements of the law by which an advocate plays a vital role in the preservation of society and justice system. An advocate is under an obligation to uphold the rule of law and ensure that the public justice system is enabled to function at its full potential. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. Ignoring even a minor violation/misconduct militates against the fundamental foundation of the public justice system.
39. An advocate should be dignified in his dealings to the court, to his fellow lawyers and to the litigants. He should have integrity in abundance and should never do anything that erodes his credibility. An advocate has a duty to enlighten and encourage the juniors in the profession. An ideal advocate should believe that the legal profession has an element of service also and associates with legal service activities. Most importantly, he should faithfully abide by the standards of professional conduct and etiquette prescribed by the Bar Council of India in Chapter II, Part VI of the Bar Council of India Rules.

 In Dhanraj Singh Choudhary v. Nathulal Vishwakarma MANU/SC/1490/2011 : (2012) 1 SCC 741, discussing the nobility of the profession of lawyers, this Court has made following observations:

25. Any compromise with the law's nobility as a profession is bound to affect the faith of the people in the rule of law and, therefore, unprofessional conduct by an advocate has to be viewed seriously. A person practising law has an obligation to maintain probity and high standard of professional ethics and morality.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2581 and 2633 of 2005

Decided On: 17.03.2015

Chander Prakash Tyagi
Vs.
 Benarsi Das and Ors.

Coram:T.S. Thakur and Prafulla C. Pant, JJ.

Citation;AIR2015 SC 2297 , (2015 )8 SCC506

Print Page

BCI suspends 15 lawyers for Madras HC violence

Echoing the Supreme Court’s view that legal profession has fallen to new depths, the Bar Council of India (BCI) took an “extraordinary” measure by suspending 15 advocates who allegedly indulged in the Madras High Court violence.

They were suspended without being given  an opportunity to be heard first. But the BCI justified that the law allowed it to take extraordinary measures in exceptional cases when the health of the legal profession was at stake. These advocates have also been  debarred from practising before any court or authority pending a disciplinary probe against them for “gross professional misconduct.”

The BCI directed the Tamil Nadu State Bar Council to conclude the disciplinary proceedings against them in a month.

The 15 advocates were zeroed in on the basis of communications from the BCI, by the Chairman of the Tamil Nadu Bar Council and the Registrar General of the Madras High Court. The Registrar General’s list had the names of two law college students who allegedly participated in the violence, the seven-page September-22 order authored by BCI Chairman and senior advocate Manan Kumar Mishra noted.

Print Page