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 by this AOR into a
profession of cheating. An AOR, whom the litigant has never
briefed
or engaged, has lent 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.
-----------------------
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