Amarjit Singh Kalra (Through Lrs) ... vs Smt. Pramod Gupta (Through Lrs) ...
2004 Latest Caselaw 1012 Del

JUDGMENT

B.C. Patel, C.J.

1. This matter is concerned with rights of audience of an advocate in the Court. Such a right being in general is governed in this country by practice as well as by statute. Each High Court is entitled to make rules of its own. It is known that rules are required to be made in the interest of public. It is a matter concerning the dignity and the orderly functioning of the Court. The right of the advocate to practice envelopes a lot of acts to be performed by him in discharge of his professional duties. It is not necessary that the advocate is acting in that capacity in the Court alone. He may advise his client. He may give a written opinion pertaining to a matter or he may draft plaints, written statements or petitions. But all these things are connected with the highly qualified profession also. However, these are the acts to be performed by an advocate outside the Court. But, so far as his practice in the Court is concerned, the Court has the supervisory power. Hence, the court cannot be divested with the control or supervision of the Court merely because it may involve the right of an advocate.

2. Learned counsel appearing for the applicant submitted that the rule is in force indicating that it is not proper for an advocate to accept a brief in a matter where he has acted as a judicial officer. If one accepts the brief, then it is not in accordance with the propriety, modesty, good taste or good manners. To accept a brief in such a situation is not in accordance with the accepted standards of behavior or the profession.

3. This application is preferred in RFA No. 309/1980 by legal heir of Respondent No.27 urging violation of Rule 15 of Chapter VI-B framed under Section 15 of the Indian Bar Council Act, 1926 deemed to have been adopted under the Advocates Act, 1961. It is contended in the application that the appeal arises out of the judgment and decree made by Mr. P.L. Singla, Additional District Judge, Delhi dated 20.5.1980 in reference proceedings under Section 31(2) of the Land Acquisition Act, 1896. The Land Acquisition Collector acquired lands vide Award No. 2040 covering 720 bighas of land and vide Award No.2225 covering 3224 bighas 2 biswas out of a joint holding of 4307 bighas 18 biswas of land situated in Village Massoodpur, Tehsil Mehrauli, District Delhi.

4. There were three sets of claimants - (1) Gaon Sabha, (2) appellants before the Court and (3) transferees being the bhumidhars of the acquired land.

5. In this application, the Court is not required to examine the merits of the appeal as the grievance made by the applicant is that one of the learned counsel appearing for the appellants, who is arguing the matter, should not be allowed to argue this appeal before the Court. We are not referring in this order the name of the advocate, but we refer him as "Advocate Mr.A". It is the contention raised by the applicant that the judgment was delivered on 26.8.1965 by Mr.A, who was at the relevant time, Senior Sub Judge,Delhi, in respect of the lands under acquisition, dismissing the appeals filed by the Gaon Sabha, Masoodpur against the appellants who had filed suits against Gaon Sabha for declaration in the Court of another Sub Judge, Delhi for declaration that the order dated 14.7.1958 passed by the Revenue Assistant vesting the land in Gaon Sabha under Section 7 of the Delhi Land Reforms Act,1954, was wrong, illegal, ultra vires and without jurisdiction. It is contended in the application that the appellants have based their claim on other judgments delivered by Advocate Mr.A in his capacity as Additional District Judge, Delhi. It is further contended that the appellants and the other non-appealing co-proprietors filed suits against Gaon Sabha, Masoodpur, in the Court of Shri H.C.Gupta, Sub Judge First Class, Delhi, claiming declaration that the land in question was not agricultural land as defined in Section 3(13) of the Delhi Land Reforms Act,1954 and that the Delhi Land Reforms Act,1954 did not apply to the land and, consequently, order dated 14.7.1958 passed by the Revenue Assistant by which land stood vested in Gaon Sabha was ultra vires, void and without jurisdiction. The suits were filed on 12.3.1964 for an area of about 394 bighas and another area of 720 bighas of land, part of which was subject matter of acquisition for which notification under Section 4 of the Land Acquisition Act, was issued on 21.10.1961, and were acquired by Award Nos. 1944 and 2040. It is contended that in those suits Smt. Gulab Sundri and her transferees were not imp leaded as parties, namely, the third set of claimants. Shri H.C. Gupta, Sub Judge First Class, Delhi vide his order dated 10.3.1965 held that the vesting of land in Gaon Sabha was ultra vires, void and without jurisdiction. All the appeals which were filed against the said judgment and decree were heard by advocate Mr.A, who was at the relevant time Senior Sub Judge, Delhi, as the first appellate Court, and the appeals were dismissed vide judgment dated 26.8.1965 and it was held that the land in question was held or occupied for the purpose of quarry and hence was not included in the definition of "land" as per Delhi Land Reforms Act,1954 and was not a "waste land" and the appellants were holding the land as per Punjab Land Revenue Act which was applicable to the land in question. The land covered by a notification under Section 4 of the Land Acquisition Act, subsequently was the subject matter wherein decision was rendered by advocate Mr.A as a Judicial Officer, and, for which disputes were raised before the Reference Court and the claim is based on the aforesaid judgment Ex P-44 which is produced on record at pages 895 to 904 of Volume IV of the paper book.

6. It is contended that the appellants are placing reliance on the said judgment. Various contentions are raised in this behalf and we do not wish to deal with them in detail. It is further pointed out that the reference proceedings in the present case were dealt with by advocate Mr.A in the capacity of Additional District Judge. Some allegations were made against the Judicial Officer before the commencement of proceedings and the District Judge considering the merits of the application, rejected the application for transfer of the reference proceedings and thus it is clear that the application for transfer of proceedings was filed and was rejected vide order dated 7.10.1971.

7. It is further averred in the application that advocate Mr.A in his capacity as Judicial Officer hearing the matter, from which these appeals are arising, dealt with the same from October, 1971 till he was transferred to another Court. It is further averred that the appeals arising out of the impugned judgments were heard by a Division bench. After the arguments of the appellants concluded, the respondents concluded their submissions and the appellants were given an opportunity to submit their arguments in rejoinder. It is alleged in the application that by that time advocate Mr. A retired as a Judge of the High Court and after his retirement, this matter was taken over by him and he commenced arguments on behalf of the appellants. However, on account of strike by Advocates the matter could not be taken up and thereafter one of the Judges of the Division Bench, who heard the matter earlier, was elevated as Chief Justice of the Andhra Pradesh High Court. Since long Advocate Mr.A is conducting this matter.

8. In reply it is submitted by learned Advocate Mr.A that merely because in past he had, at some stage, dealt with the case as a Judicial Officer, it is not improper on his part to accept a brief. Even as stated in the application itself it was known to the present applicant that Advocate Mr.A was appearing since long in this matter and after the remand of the matter by the Apex Court such an argument should not be accepted. It is contended that with a view to delay the matter these submissions are made. It was pointed out that the matter was heard in 1987-88, but no grievance was made for 16 years. Thus for 16 years no grievance was raised at any time and when the matter is taken up for final hearing, grievance raised in this application should not be allowed to be raised.

9. We are not examining the matter on account of allegations made in the application. Suffice it to say that the matter was placed before advocate Mr.A while discharging his duties as Additional District Judge. The matter was placed on several occasions before him and evidence was recorded by him. If some casual orders were passed, matter would be different. But in the judicial proceedings when a Judicial Officer has recorded evidence of number of witnesses, then how the matter is to be dealt by the judicial officer, subsequently practicing as a counsel is required to be determined by this Court in the light of Rule 15 of the Delhi High Court Rules which is invoked by the present applicant. The said rule reads as under:-

"15. It is not proper for an Advocate to accept a retainer or a brief in a case in which he has acted in a Judicial or quasi-judicial character as Commissioner or Arbitrator."

10. There is some confusion about Rule 15 of Chapter VI-B framed under Section 15 of the Indian Bar Councils Act,1926 deemed to have been adopted under the Advocates Act,1961. With great difficulties we could trace notification issued by the High Court of Judicature for the State of Punjab at Chandigarh dated 3rd March,1959 which was published in the Punjab Government Gazette on 27th March,1959. Notification makes it clear that the provisions of Sections 3 to 16 of the Indian Bar Councils Act,1926 having come into force in respect of the East Punjab High Court by virtue of East Punjab Government, Home/Judicial notification 5056-JJ-48/52532, dated the 28th September,1948, Hon'ble the Chief Justice and Judges of the Punjab High Court were pleased to sanction the rules framed by the Bar Council under Section 15 of the said Act and the rules were published for general information under Section 18 of the Act. It is these Rules which are applicable.

11. It would also be relevant at this stage to refer to an order dated 7.10.1971 made by District Judge. It was known to the applicant that earlier opinion was expressed in respect of the matter and, therefore, application was made, inter alia, praying that the reference should not be tried by advocate Mr.A who was at the relevant time a judicial officer and that it should be transferred. The District Judge expressed an opinion while rejecting the contention that mere fact that in some other case an opinion is expressed, then his views about certain matter cannot be treated as a good ground for transferring the case from his court. The District Judge also pointed out that the matter decided by the Judicial Officer was subject matter of the appeal. This order was not further challenged and the parties accepted this order and it is thereafter the matter was heard by advocate Mr.A in his capacity as a Judicial Officer.

12. However, the question is whether in the present appeal, the Judicial Officer, who had conducted the matter, can appear subsequently in the same matter as an Advocate? There is no decision of any Court of this country as argued by the counsel for the applicant. Learned counsel took time to search and ultimately submitted that they are not in a position to point a finger on any decision touching the subject involved in the matter. However, on behalf of the applicant it was pointed out that ordinarily no advocate would appear in a matter wherein he has acted as a Judicial Officer.

13. In this very Court it so happened very recently that a counsel argued Income Tax References. After some arguments when a question was put about the reference for one year which was not included in the group, he requested that time may be given to enable him to give the number to the Registry so that all the references can be heard together. Accordingly, the matters were adjourned. In some routine matter dealt with by a Judicial Officer he may not even remember that he dealt with such a case. In this case, we are pointing out that the counsel had no idea about the fact that he also decided one of the matters following earlier decisions of the Tribunal. When on the adjourned date the matter was called out, the counsel fairly stated and asked the question whether he should appear or not. It was a difficult task for him because for the last year reference of that group, the Tribunal decided the appeal and he was a Member of the Tribunal. He was hesitating to proceed with the matter and ultimately counsel stated that the matters will be transferred to another counsel who will appear in all the matters. Sometimes it may happen that the Judge hearing the matter after many years may not be in a position to remember. Even a counsel may not remember his appearance in some off-shoots of the main matters or even sometime his appearance may not be for really contesting party.

14. Section 34 of the Advocates Act,1961 being relevant is required to be considered. The said provision is as under:-

34. Power of High Courts to make rules -- (1) The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto.

(1A) The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable by costs by any party in respect of his adversary's advocate upon all proceedings in the High Court or in any other Court subordinate thereto.

(2) Without prejudice to the provisions contained in sub-section (1), the High Court at Calcutta may make rules providing for the holding of the Intermediate and Final examinations for articled clerks to be passed by the persons referred to in section 58A for the purpose of being admitted as advocates on the State roll and any other matter connected therewith.

(3) Omitted."

15. Thus, powers are given to the High Court to make rules laying down the conditions subject to which an advocate shall be permitted to practise in High Court and the courts subordinate thereto. However, until the High Court makes the rules under the Advocates Act in view of the deeming provision the earlier rules framed by the High Court under the Indian Bar Council Act will continue to apply. Section 49(1)(c) of the Advocates Act,1961, empowers the Bar Council of India to make rules for discharging its functions under the Advocates Act. The rule may prescribe the standards of professional conduct and etiquette to be observed by advocates. Section 50 is a repealing provision. Section 15 of the Indian Bar Councils Act,1926 has been repealed. Section 15 of the Indian Bar Councils Act,1926 reads as under:-

15. General power of Bar Councils to make rules.- A Bar Council may, with the previous sanction of the High Court for which it is constituted, make rules consistent with this Act to provide for and regulate any of the following matters namely:-

(a) the rights and duties of the advocates of the High Court and their discipline and professional conduct;

(b) the conditions subject to which advocates of other High Courts may be permitted to practise in the High Court;

(c) the giving of facilities for legal education and training and the holding and conduct of examinations by the Bar Council;

(d) the charging of fees payable to the Bar Council in respect of enjoyment of educational facilities provided, or of the right to appear at examinations held, by the Bar Council;

(e) the investment and management of the funds of the Bar Council; and

(f) any other matter in respect of which the High Court may require rules to be made under this section.

16. It is also relevant at this juncture to refer to Section 14 of the Indian Bar Councils Act,1926 and the same is reproduced as under:-

14. Right of advocates to practice.-(1) An advocate shall be entitled as of right to practise-

(a) subject to the provisions of sub-section (4) of Section 9, in the High Court of which he is an advocate, and

(b) save as otherwise provided by sub-section (2) or by under any other law for the time being in force in any other Court and before any other Tribunal or person legally authorised to take evidence, and

(c) before any other authority or person before whom such advocate is by or under law for the time being in force entitled to practice.

(2) Where rules have been made by any High Court within the meaning of clause (24) of Section 3 of the General Clauses Act,1897, or in the case of a High Court for which a Bar Council has been constituted under this Act, by such Bar Council under Section 15, regulating the conditions subject to which advocates of other High Courts may be permitted to practise in the High Court, such advocates shall not be entitled to practise therein otherwise than subject to such conditions.

(3) Nothing in this section shall be deemed to limit or in any way affect the power of the High Court of Judicature at Fort William in Bengal or of the High Court of Judicature at Bombay to make rules determining the persons who shall be entitled respectively to plead and to act in the High Court in the exercise of its original jurisdiction.

17. Under the Indian Bar Councils Act,1926 rules were framed by the Punjab High court. The Act known as Delhi High Court Act,1966 was made to provide for the constitution of High Court for the Union Territory of Delhi. It is under this Act the Delhi High Court is established. Section 6 of the Delhi High Court Act,1966 is relevant and is quoted hereunder:-

6. Power to enrol legal practitioners etc.-(1) The High Court of Delhi shall have like powers to approve, admit, enrol, remove and suspend legal practitioners, and to make rules with respect to them, as are, under the law in force immediately before the appointed day, exercisable by the High Court of Punjab.

(2) The right of audience in the High Court of Delhi shall be regulated in accordance with the like principles, as, immediately before the appointed day, are in force with respect of the right of audience in the High Court of Punjab;

Provided that subject to any rule made or direction given by the High Court of Delhi in the exercise of the powers conferred by this Section, any person who immediately before the appointed day is an advocate entitled to practise or an attorney entitled to practise or act, as the case may be, in the High Court of Delhi.

18. Thus it is very clear that this High Court can make rules in exercise of the powers in the same manner in which the powers are exercisable by the High Court of Punjab and the right of audience in the High Court is to be regulated in accordance with the like principles, as immediately before the appointed day, were in force in respect of the right of audience in the High Court of Punjab. Proviso to Section 7 also makes it clear that the rules made by High Court of Punjab shall apply until varied or revoked by the rules or orders made by the High Court of Delhi. The said proviso reads as under:-

Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court of Punjab shall, until varied or revoked by rules or orders made by the High Court of Delhi, apply with the necessary modifications in relation to practice and procedure in the High Court of Delhi as if made by that High Court.

19. So far as Punjab High Court is concerned, an order known as the High Courts (Punjab) Order,1947, made in exercise of powers conferred by Section 9 of the Indian Independence Act,1947 issued vide notification dated 11.8.1947 is required to be considered. As per said order, from 15th day of August,1947, a High Court was established known as High Court for the Province of East Punjab which would exercise all original or appellate powers even in the province of Delhi. Order 6 being relevant in this behalf is reproduced as under:-

(1) The High Court of East Punjab shall have the like powers to approve, admit, enrol, remove and suspend advocates, vakils and attorneys, and to make rules with respect to advocates, vakils and attorneys, as are, under the law in force immediately before the appointed day, exercisable by the High Court at Lahore.

(2) The right of audience in the High Court of East Punjab shall be regulated in accordance with the like principles as, immediately before the appointed day, are in force with respect to the right of audience in the High Court at Lahore.

Provided that, subject to any rule made or direction given by the High Court of East Punjab in the exercise of powers conferred by this Article, any person, who, immediately before the appointed day is an advocate, vakil or attorney entitled to practice in the High Court at Lahore, shall be recognized as an advocate, vakil or attorney entitled to practise in the High Court of East Punjab.

20. Order 7 being relevant is reproduced below:-

7. Subject to the provisions of this Order, the law in force immediately before the appointed day with respect to practise and procedure in the High Court at Lahore shall, with the necessary modifications, apply in relation to the High Court of East Punjab, and accordingly that High Court shall have all such powers to make rules and orders with respect to practise and procedure as are immediately before the appointed day exercisable by the High Court at Lahore;

Provided that any rules or orders which are in force immediately before the appointed day with respect to practise and procedure in the High Court at Lahore shall, until varied or revoked by rules or orders made by the High Court of East Punjab, apply with any necessary modifications in relation to practise and procedure in the High Court of East Punjab as if made by that Court.

21. It appears that the High Court of Delhi has not so far made any rules under the Advocates Act,1961. However, the rules made by Punjab High Court are made applicable here also. In view of the provisions contained in Delhi High Court Act and particularly Sections 6 & 7 the rules framed by the High Court of Punjab shall apply until they are varied, revoked or cancelled. It is in view of this background Rule 15 made under Section 15 of the Indian Bar Councils Act,1926, is to be considered.

22. The High Court of Punjab and Haryana has made rules in 1970 under Section 34(1) of the Advocates Act,1961. Obviously the rules having been made after constitution of this Court are not applicable. However, rules originally framed by the Punjab High Court would be applicable. So far as Section 50 of the Advocates Act,1961 is concerned, the date on which a State Bar Council is constituted under the Advocates Act,1961, the provisions Section of s 3 to 7 (inclusive) sub-sections (1),(2) and (3) of Sections 9, 15 to 20 of Indian Bar Councils Act,1926 shall stand repealed in the territory for which the State Bar Council is constituted. The Bar Council of Punjab & Haryana was set up on 16th December,1961, while the Bar Council of Delhi was set up on 22nd January,1962. In view of Section 6 of the Delhi High Court Act,1966, the right of audience in the High Court of Delhi is to be regulated in accordance with the like principles as immediately before the Act came into force were in force with respect to the right of audience in the High Court of Punjab. We have also indicated that in view of proviso to Section 7 of the Delhi High Court Act,1966, the rules made by the High Court of Punjab shall apply until varied or revoked by the rules or orders made by the High Court of Delhi. It is in view of the provisions contained in Sections 6 and 7 of the Delhi High Court Act,1966, the rules made by the Punjab High Court which are duly published in the notification dated 27th March,1959 will apply.

23. According to the learned counsel for the applicant, an advocate has a right of audience provided he is acting in consonance with the provisions of the Advocates Act,1961 which are applicable. On the other hand, it was submitted by the appellants that Rule 15 only states that it would not be proper for an advocate to accept a brief in which he has acted in a judicial capacity. This rule does not prohibit an advocate in appearing in a matter where in past before many years he may have acted as a Judicial Officer.

24. When Rule 15 was framed, there was no question of delay and the proceedings were terminated within a short period and in view of this there would be no occasion for a judicial officer to conduct the matter as an advocate, which was dealt with by him as a judicial officer. In view of unhealthy delay and the delay caused on account of various reasons would it be justified considering the present scenario to prohibit an advocate appearing in the matter which was conducted by him many years ago.

25. After retirement, a judicial officer will not get salary and/or the perks, which are available to a judicial officer. Considering the hard realities that the cost of living is day by day increasing and, more particularly, in metropolitan cities it becomes very difficult for a retired judicial officer to have a comfortable living. In view of this, a retired judicial officer is bound to engage himself in the profession where he was earlier before entering the judiciary.

26. Here, in this country it is not like a western country where there is no retirement age of a judge but in view of the early compulsory retirement, a judicial officer is required to work for survival. If after many years, he is appearing in a matter, would it be a just ground to state that it is not proper for him to appear as an advocate because he conducted the matter as a judicial officer in the past. Retiral benefits are also of poor value. It is considered that an advocate is an officer of the Court. Even in such a situation, would it be proper debarring an advocate from appearing in a matter, more particularly, when he conducted the said matter for a number of years. When Rule 15 was drafted, the situation was quite different. When one talks about arbitration, it is known that the arbitrators are selected by the parties, yet no grievance is made by and large with regard to the decision rendered by arbitrators. When a situation like this is prevailing, why a ground should be made that before many years an advocate in his capacity as a judicial officer conducted the matter, he should not be allowed to appear in the same matter now. If the reverse would have been the situation that the advocate was appearing in the matter and in his judicial capacity subsequently he is required to decide the matter, then it can be said that he may not conduct the case. Even there the counsel who had appeared before many years in a matter which may be off shoot of the main matter or his appearance may be for a non-contesting party, still it would deprive him from conducting the matter. Any way Rule 15 is not challenged before us and, therefore, we have to examine Rule 15 as it stands today.

27. Our attention was drawn to some rules to point out that there is a prohibition for certain aspects. For example, Rule 3 states that no advocate should appear before a local authorised (sic- "authority") of which he is a member. Likewise Rule 4 states that no advocate shall appear in a case against a local authority of which he is a member. If the High Court had thought it fit and proper, then the rules should have couched differently, i.e., "No advocate shall appear in a matter where he has acted as a Judicial Officer". According to the learned counsel for the appellant it only states that it is not proper for an advocate to accept a retainer or brief in a case in which he has acted as a judicial officer. Learned counsel submits that it does not prohibit an advocate from appearing in the matter, even if he had acted as a Judicial Officer in the same matter.

28. So far as the standard of professional conduct and etiquette is concerned, rules framed under Section 49(1)(c) of the Advocates Act are relevant. The preamble of Chapter II pertaining to Standard of Professional Conduct and Etiquette reads as under:-

"An Advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and more for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an Advocate..............."

29. Thus, an advocate has to bear in mind that as a member of the Bar even while acting in his non-professional capacity he has to ensure that the way in which he is acting is not improper. Therefore, for all times to come, whether arguing a matter in a Court of Law or acting in a non-professional capacity an advocate is required to bear in mind that whatever he does must be proper.

30. Learned counsel for the applicant drew our attention to Corpus Jurisdiction Secundum, Volume 7 wherein it is pointed out as under:-

"... The courts have the power and duty and responsibility to control and supervise members of the bar, and the duty to maintain the high ethical standards of the legal profession." (Pages 895-896)

"...The validity of provisions of canone of ethics or codes of professional responsibility has been upheld in various instances. The ethical rules encompassed in such codes are highly persuasive and due the utmost consideration, and the courts should not denigrate such provisions by indifference. Indeed, such provisions are evidence of the proper standards of conduct for the legal profession, and, in addition, for the protection of the public. A code of professional responsibility does not delineate rules of evidence but only sets forth strictures on the conduct of attorneys.

Attorneys are subject to a code of professional responsibility, and they must adhere to the moral standards prescribed by rules of ethics. (Pages 897 & 898)

Under a disciplinary rule of a code of professional responsibility, the validity of which has been upheld, an attorney should not accept employment with respect to a matter in which he had substantial responsibility while he was a public employee. Furthermore, he should not accept employment as an advocate in any matter upon the merits of which he acted in a judicial capacity. ... (Pages 928 & 929)

A court is obliged to take measures against unethical or unprofessional conduct occurring in connection with any proceeding before it. The duty to enforce standards of ethical responsibility places responsibility on a court to restrain conduct which has a potential for evolving into a breach of ethics before the conduct becomes ripe for disciplinary action. Under some authorities, the trial court has inherent and statutory power to intervene on its own initiative and to inquire into any appearance of impropriety, and to control the proceedings to remedy the defect; but some courts lack the power to impose any restraint on communications between a plaintiff or his attorney and third parties for the purpose of preventing the recruitment of additional parties plaintiff or the solicitation of financial or other support to maintain a class action.

(Page 932)

31. Our attention was also drawn to Corpus Jurisdiction Secundum Volume 7A, page 171 which reads as under:-

" Judicial or quasi-judicial capacity. An attorney should not accept employment in any matter upon the merits of which he has previously acted in a judicial capacity, and it is improper for an unsuccessful conciliator to act as trial counsel for one of the parties. A referee appointed by a state agency to conduct a fair hearing with respect to a claimant against the state is a quasi-judicial officer and he should not serve as an attorney to represent another agency of the state in a subsequent proceeding in the same case."

32. Learned counsel for the applicant submitted that even in England every Court or Tribunal has an inherent jurisdiction to regulate its own practice and proceedings unless fettered by statute possibly by ancient usage and it is an incident of this inherent jurisdiction that a Court has power to determine what persons should be permitted to appear before it as advocates. Learned counsel has drawn our attention to certain paragraphs of Halsbury's Laws of England, Fourth Edition, page 308, which are reproduced below:-

"Every court or other tribunal has an inherent jurisdiction to regulate its own practice and proceedings, unless fettered by statute or, possibly, by ancient usage, and it is an incident of this inherent jurisdiction that a court has power to determine what persons should be permitted to appear before it as advocates.

In deciding whether to impose or remove restrictions on rights of audience the judges should have regard solely to what is required in the public interest for the efficient and effective administration of justice and not to the interests of the lawyers concerned. There is a recognized public interest in limiting the categories of person whom the courts are prepared to hear as advocates to ensure that the advocates appearing in a particular court have the requisite standard of skill and a high standard of probity.

33. The Apex Court in the case In re 'M', an Advocate pointed out in para 14 at page 163 as under:-

"... It appears to us that the fact of there being no specific rules governing the particular situation, which we are dealing with, on facts found by us, is not any reason for accepting a less rigid standard. If any, the absence of rules increases the responsibility of the members of the profession attached to this Court as to how they should conduct themselves in such situations, having regard to the very high privilege that an Advocate of this Court now enjoys as one entitled, under the law, to practice in all the Courts in India."

34. At this juncture it would be relevant to quote para 18 of the Apex Court decision delivered in Pravin C. Shah vs. K.A. Mohd. Ali and Another :-

"18. In the above context it is useful to quote the following observations made by a Division Bench of the Allahabad High Court in Prayag Das v. Civil Judge, Bulandshahr :

The High Court has a power to regulate the appearance of advocates in courts. The right to practise and the right to appear in courts are not synonymous. An advocate may carry on chamber practice or even practise in courts in various other ways, e.g. drafting and filing of pleadings and vakalatnama for performing those acts. For that purpose his physical appearance in courts may not at all be necessary. For the purpose of regulating his appearance in courts the High Court should be the appropriate authority to make rules and on a proper construction of Section 34(1) of the Advocates Act it must be inferred that the High Court has the power to make rules for regulating the appearance of advocates and proceedings inside the courts. Obviously the High Court is the only appropriate authority to be entrusted with this responsibility."

35. A lawyer in discharge of 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 in arriving at the place of right stand. The real question is that why, while framing the rules the rule maker instead of using language in the nature of prohibiting an advocate from appearing in the matter, indicated that it is not proper for an advocate to appear in a matter which was dealt with by him as a Judicial Officer. Many times mandate is not required to be given. Rule 15 is used for indicating impropriety, it is only for the understanding and putting in practice only by the persons who had experience in the judiciary. It is clear from the intention of the rule maker that by indicating "not proper" persons who had experience in judiciary will understand the spirit of the rule and shall not appear in the matter once conduced as a judicial officer. The governing factor is the meaning and the intent of the rule maker and that is to be gathered not merely from the words used by the rule maker but from several circumstances. Thus, even reading the language of Rule 15 it is very clear that the rule maker indicated that the person who has acted as a Judicial Officer in a proceedings subsequently in the same proceedings he shall not appear as an advocate.

36. In Corpus Jurisdiction Secundum, Volume 73, meaning of the word "proper" is given at pages 155 & 156 as under:-

" PROPER. The word "proper" is an adjective. It is not necessarily a relative term, but in some connections the word may be definite and specific, particularly when used in connection with a definite subject matter.

"Proper" is variously defined as meaning conforming to a standard of usage or action; appropriate; right; consistent with propriety; and in what has been said to be its ordinary significance, it means that which is fit, suitable, essential, adapted and correct. It sometimes is employed as meaning something equivalent to the words "useful" or "aidful".

"Proper" has been held to be equivalent to, or synonymous with, "competent" see C.J.S. definition Competent, "correct" see the C.J.S definition Correct, "reasonable"; and "suitable".

37. In "Words and Phrases" Volume 34A published by St. Paul, Minn. West Publishing Co has given meaning of the word "Proper" as under:-

The word "proper" means fit, suitable, and appropriate. Kirschoff v. Hohnsbehn Creamery Supply Co., 123 N.W. 210,212,148 Iowa, 508; Miller v. Cedar Rapids Sash & Door Co., 134 N.W. 411, 153 Iowa, 735.

"proper" being synonymous with "fit". Hanes v. Southern Public Utilities Co., 131 S.E 402, 406, 191 N.C. 13.

38. Black's Law Dictionary, sixth edition, at page 1216 has given the meaning of the word "proper" as under:-

"Proper. That which is fit, suitable, appropriate, adapted, correct. Reasonably sufficient. Peculiar; naturally or essentially belonging to a person or thing; not common; appropriate; one's own."

39. It was submitted by the original appellant that even reading Rule 15, who has to decide whether the act is proper or not? According to the counsel it has to be decided by the advocate appearing in the matter and if he is of the opinion that it is not proper, then he need not appear. But if he feels that it is proper for him to appear in the matter, he can appear. Particularly, in the instant case, when he is appearing since a number of years now there should be no objection. If it is a professional misconduct, then it would be for the Bar Council to take action and not for the Court restraining the advocate from appearing in the matter. It is submitted that he is appearing as a Senior Advocate since 1986 and in this matter he is appearing almost on all the dates fixed for hearing. He had argued the matter before the Court during the period from 1987 to 1990 and thereafter he has appeared in this matter when it was subject matter of an appeal before the Apex Court. It is under these circumstances it is submitted by him that the application suffers from the vice of mala fides and has been deliberately and designedly moved with delay and to cause delay. According to the counsel for the appellant the advocate is an officer of the Court and it is for him to decide in view of the allegations made by one of the respondents in this appeal with mala fides. The Court's attention was drawn to the decision of the Karnataka High Court in the case of M.B. Bul Chand and Others vs. Presiding Officer wherein the learned Single Judge had an occasion to consider Rule 11. In that case the Court pointed out that there is no legal bar against the advocates appearing for a particular nationalized bank from appearing against any other nationalized bank and that the nationalized banks are distinct entities, separate in its management and other formalities. It is in this background whether objection was raised or not would be irrelevant. Here the facts are quite different. What is important to note is what the Court has held in para 12, which is quoted below:-

"In my opinion, the Advocates are members of the highly honourable and learned profession and it was expected that they would do nothing which would adversely affect the reputation and good name of the profession to which they belong. On ethical and professional ground if it appeared that continuance on the part of an advocate in a case was liable to objection, I hope and trust in that event, the advocate would dissociate himself keeping in view the highest traditions of the profession. Interference by a Court in the matter of regulation of conduct of the advocates should be, in my opinion, only in very exceptional circumstances and the Court must desist from any action which is likely to injure or jeopardize the interests of the profession. It is left to the advocate concerned to judge for himself whether it would be proper for him to continue to conduct the case on behalf of the parties."

40. We would say that when Rule 15 says that it is not proper for an advocate to appear in a matter where he has acted as a Judicial Officer, the case deserves different considerations. The case before the Karnataka High Court was quite different and cannot be relied on as an authority to say that it must be left to the advocate despite the clear language of Rule 15.

41. We would like to refer a case of Albert Martin Cohen vs. Denis M. Hurley 366 US 117, 6 L ed 2d 156, 81 S Ct 954 wherein the Court has pointed out at page 157 about attorneys and functions of attorneys as under:-

"5. English and American courts have for centuries possessed disciplinary powers over members of the bar, incident to their broader responsibility for keeping the administration of justice and the standards of professional conduct unsullied."

42. In view of what is stated hereinabove and in view of the decisions of the Apex Court in case of Ex-Capt. Harish Uppal vs. Union of India & Another and Pravin C. Shah vs. K.A. Mohd. Ali and Another , along with the provisions which we have discussed, we pointed out to Advocate Mr.A that it would not be proper for him to appear in the matter. However, it was insisted that the Court should give a ruling and hence, considering the provisions, as discussed above, this Court is of the opinion that an advocate who has dealt with the matter in a judicial capacity earlier should refrain from appearing in such matters. Therefore, we would not permit Advocate Mr.A to appear in this matter. The application is required to be allowed and is allowed accordingly.

CHIEF JUSTICE

Badar Durrez Ahmed, J.

September, 2004.

rg/vsp

Badar Durrez Ahmed, J.

1. I entirely agree with the Chief Justice that Mr A ought not to be permitted to appear and be heard in this case. The Chief Justice has dealt with the facts and the law in great detail. However, I would like to add some supplementary comments in support of the view taken by us:-

1. The facts need not be repeated. Mr A handled the case in the trial court in his judicial capacity. He now appears for one of the parties (the appellant) thereto in the appeal before us. The vexed question is - should he be permitted to appear in this case in which he has acted in a Judicial character earlier? The respondents rely upon Rule 15 of Chapter 6-B, Volume V of the Delhi High Court Rules to urge that Mr A cannot be allowed to appear. The said Rule 151 reads as under:-

"15. It is not proper for an Advocate to accept a retainer or brief in a case in which he has acted in a Judicial or quasi-judicial character as Commissioner or Arbitrator."

Mr A, on the other hand contends that this rule does not cover his case as it pertains only to those cases where the advocate concerned had been a Commissioner or an arbitrator. In short, he urged that it did not apply to a former Judge. He further contended that, in any event, it was for the advocate himself to consider whether it was "proper" or not to accept a brief in such a case. And, he did not see any impropriety and was willing to face any action that the Bar Council may take in this regard.

2. In the light of these submissions, I pondered at some length over the language of the said Rule 15. Why is it regarded as improper for an Advocate to accept a retainer or a brief in a case in which he has acted in a judicial or quasi-judicial character as Commissioner or Arbitrator? To arrive at an answer, the question ought to be turned around. What is the impropriety in a Judge hearing a matter in which he was earlier an Advocate for one of the parties? The answer lies in the well known principle of natural justice that "justice must not only be done but must manisfestly be seen to be done". People might, even if the Judge decided without bias, have the lingering suspicion that he was influenced as, he was, at some earlier stage, an Advocate in the case. So, if this principle were to apply in the "reverse" situation would it not apply to the case at hand? It could be argued that while bias attributable to a judge is a serious matter and any decision rendered as a consequence of such bias would be a nullity, here, Mr A is not acting a Judge now. He acted in a judicial capacity earlier but, now he appears as an Advocate. The principle of bias would not vitiate his conduct as an advocate. Although attractive, this line of thought misses an important aspect. It is improper for Mr A to accept the brief not because it reflects on the propriety of his conduct in his "avatar" as an Advocate, but, because it casts doubts on his conduct of the case when he acted judicially. It is not that there was any actual bias. There is none. But, that is not sufficient, it must also appear that there was no bias. There could be a reasonable apprehension in the minds of the litigants that, because Mr A now appears for the appellant, he knew them well enough even when he dealt with the matter earlier in his capacity as a judge. And, this is where the impropriety lies.

3. The issue that though this rule may be applicable in the cases where the advocate concerned earlier acted as an Arbitrator or Commissioner, it is not applicable to a situation where the advocate concerned was previously a judge, has only to be stated to be rejected. When the standard applicable is strict enough to include situations where the concerned advocate had previously acted even in a quasi-judicial capacity as an Arbitrator or Commissioner, it would be hard to fathom that the rule does not relate to his earlier conduct where he acted in a judicial capacity as a judge. In fact, if at all, the rules of propriety ought to be stricter in the case where he acted in a judicial capacity as a Judge. To my mind, the focus is not on the position previously held but on the function discharged. If he performed a judicial or quasi-judicial function the rule of propriety would bar him from accepting a brief in the same matter subsequently in his capacity as an advocate. Thus, the said Rule 15 would clearly apply to the case at hand.

4. Once it is found that it was not proper on the part of Mr A to accept a brief in this case, can it be said that that is a matter for Mr A alone to consider or, at the most, it is an issue between Mr A and the Bar Council and the Court has no say at all? The right of audience in the High Court is within its jurisdiction and control. A person may be a qualified advocate or a designated senior advocate but that alone does not give him the absolute right of audience before the High Court. And, the Court may in its wisdom refuse to be addressed by a particular advocate. There may be a situation where an advocate displays contumacious conduct during arguments. The conduct may also amount to contempt. In such a situation, can such an advocate be heard to contend that he must be permitted to continue to appear in the matter? That would certainly not be the case. Even in less extreme cases particularly where issues of propriety are involved, it is always open to the High Court to regulate the right of audience that advocates have before it. In this context the Supreme Court in the case of Ex-Capt. Harish Uppal v. Union of India: held as under:

"34. One last thing which must be mentioned is that the right of appearance in courts is still within the control and jurisdiction of courts. Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in court can only be within the domain of courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an advocate) can practise in the Supreme Court and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self-restraint is exercised, courts may now have to consider framing specific rules debarring advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of the Bar Councils. It would be concerning the dignity and orderly functioning of the courts."

The Supreme Court further held that:-

"Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by them in exercise of their disciplinary powers. The right to practise, no doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate."

And :-

"An advocate appears in a court subject to such conditions as are laid down by the court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a court. Even if Section 30 were to be brought into force control of proceedings in court will always remain with the court. Thus even then the right to appear in court will be subject to complying with conditions laid down by courts just as practice outside courts would be subject to conditions laid down by the Bar Council of India."

From the aforesaid, it is clear that within the Court, the right of audience of an advocate is to be regulated by the Court itself. Thus, it cannot be said that the Court cannot prevent an advocate from continuing to appear in the matter even though the Court feels that it would be improper to do so. The said Rule 15 clearly shows that it is improper for Mr A to have accepted the brief in this case. Therefore, this Court can certainly prevent Mr A from continuing to appear in this case.

5. Even apart from the question of such a rule being applicable, since it is a matter of propriety, it is always within the powers of the Court to stop an advocate from appearing in a matter in which it would be improper for him to appear. That issue has been settled by the Supreme Court in the case of Harish Uppal (supra). Thus, in whichever way one looks at the case in hand, Mr A cannot be permitted to appear in this matter. Accordingly, I agree with the Chief Justice and allow the application.

Badar Durrez Ahmed, J.

September 30, 2004.

There was some discussion on the genesis of this Rule however, parties were agreed that this rule was extant. It may only be noted that the Delhi High Court inherited this Rule from the Punjab High Court Rules which were notified in 1959. They became applicable to Delhi High Court by virtue of Section 6(2) of the Delhi High Court Act, 1966.