Madras High Court
Varadarajan vs The Secretary on 22 November, 2023
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P.(MD)No.26103 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.P.(MD)No.26103 of 2023
Varadarajan ... Petitioner
Vs.
1.The Secretary,
Bar Council of Tamil Nadu and Puducherry,
High Court Campus,
Chennai.
2.R.Sathasivam
3.The Superintendent of Police,
Tiruchirappalli District.
4.The Deputy Superintendent of Police,
Manapparai,
Tiruchirappalli District. ...Respondents
(R3 & R4 suo motu impleaded vide
order of this Court dated 22.11.2023
by SMSJ & VLNJ)
PRAYER: Petition filed under Article 226 of the Constitution of India, praying
to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the
1/14
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W.P.(MD)No.26103 of 2023
impugned order issued by the 1st respondent in its Letter in Confdl. No.1795/2023,
dated 27.04.2023 quash the same and consequently directing the 1st respondent to
take necessary action against the 2nd respondent Under Section 35 of the
Advocates Act.
For Petitioner : Mr.J.Lawrance
For Respondents : Mr.K.R.Laxman
Standing Counsel for R1
Mr.R.Sathasivam,
Party-in-Person / R2
Mr.Veeranthiran,
Government Advocate (Crl. Side),
for R3 & R4
ORDER
(Order of the Court was made by S.M.SUBRAMANIAM, J.)
The writ on hand has been instituted, challenging the order of the Bar
Counsel of Tamil Nadu and Puducherry, dated 27.04.2023, rejecting the complaint
given by the petitioner.
2. In nutshell, the petitioner is the landlord and the second respondent
Mr.R.Sathasivam is a lawyer and a tenant. Admittedly, R.L.T.O.P. instituted by
the writ petitioner / landlord in R.L.T.O.P.No.2 of 2020 is sub judice on the file of
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the R.L.T.O.P. Court at Manapparai. The petition is pending for about three years,
despite the fact that the Act contemplates disposal of the said petition within a
period of 90 days under Section 36(6) of the Tamil Nadu Regulation of Rights and
Responsibilities of Landlord and Tenants Act, 2017.
3. Since the complaint given by the petitioner before the Bar Council to
initiate action under Section 35 of the Advocates Act, 1961, was rejected, the
petitioner has chosen to prefer the present Writ Petition.
4. Learned counsel for the petitioner mainly contended that the petitioner
is a senior citizen, aged about 83 years and being harassed by the second
respondent, who is a practising lawyer at Manapparai.
5. Several allegations are raised by the petitioner against the second
respondent. Such allegations are being defended by the second respondent de hors
the fact remains that the relationship between the landlord and tenant is extremely
strained, which lead to filing of criminal cases between the parties.
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6. The Bar Council of Tamil Nadu and Puducherry, passed the impugned
order mainly on the ground that the tenant – landlord dispute cannot be a subject
matter of misconduct under Section 35 of the Advocates Act. Therefore, they have
declined to entertain the complaint. That apart, the learned Standing Counsel for
the Bar Council reiterated that there is no Advocate – Client relationship between
the parties, warranting initiation of disciplinary proceedings under Section 35 of
the Advocates Act and thus, the rejection is in consonance with the Advocates Act
and there is no infirmity.
7. Learned counsel for the petitioner further contended that the petitioner
is continuously being harassed and he being a senior citizen, aged about 83 years,
is at the fag end of his life and is not in a position to defend the second respondent,
who is an active practising lawyer at Manapparai. The complaint filed by the
petitioner before the Bar Council also reveals that criminal cases are registered
against the second respondent. That being so, the Bar Council atleast ought to
have examined the facts and circumstances, since Section 35(1) of the Advocates
Act enumerates that “where on receipt of a complaint or otherwise a State Bar
Council has reason to believe that any advocate on its roll has been guilty of
professional or other misconduct”.
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8. Misconduct means any act, which are unlawful in nature even though
they are inherently wrongful. Before the Advocates Act, 1961, there was an Act
called Legal Practitioners Act, 1879. Even though there is no definition given for
the term “misconduct” in the Act, the term “unprofessional conduct” is being used
in the Act. Some of the instances of professional misconduct are, dereliction of
duty, professional negligence, misappropriation, changing sides, contempt of
Court and improper behaviour before a Magistrate, furnishing false information,
giving improper advice, misleading the clients in Court, not speaking the truth,
disowning allegiance to the Court, moving application without informing that a
similar application has been rejected by another authority, suggesting to bribe the
Court officials, forcing the prosecution witness not to say the truth etc. The term
employed under Section 35 of the Advocates Act is wider enough to cover many
other misconduct falls under “other misconduct”.
9. Abusing the process of Court, status as a lawyer is also to be
construed as “other misconduct”. Lawyer enjoys a special status in the society by
virtue of the position as a legally trained person. Acting unbecoming of the lawyer
both inside the Court and outside the Court in the Society is also to be construed
as a misconduct taking note of the nature of the allegations raised against the
lawyer by the complainant.
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10. Lawyers are the officers of the Court, they have duty not only
towards Court, litigants and opponent lawyer but also towards the society in
general. We are aware of the fact that certain complainants are filing motivated
complaints against the lawyers. Therefore, mere filing of the criminal or civil case
before the Court of law would not provide a cause for initiation of disciplinary
proceedings by the Bar Council. However, the Bar Council has to draw a clear
distinction between the professional misconduct and the other misconducts as
enumerated under Section 35 of the Act. Therefore, when the allegations raised by
the complainant fall under the definition “other misconducts” involving the abuse
of status, taking benefit of being an Advocate before the Court, then actions are
certainly warranted.
11. We have considered the order passed by the learned Single Judge in
the case of Mr.V.K.Kumaresan v. P.Jeyaseelan and another reported in 2020(3)
CTC 219 and paragraphs 16 and 17 of the said order reads as under:-
“16. A house is usually built or bought with the hard earned
money of an individual or the family makes, which is considered to be
the most expensive single purchase and the conduct of the petitioner in
attempting to squat on such property is condemnable. Though this
Court, as already observed above, had given him an ample of
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opportunity to correct himself, he has not shown any respect or
indulgence to this Court and is remorseless. Therefore, this Court has no
other option, but to issue the following directions against him taking
note of the serious misconduct committed by the petitioner by wearing
the mask of an Advocate:
i) The Petitioner is directed to vacate the premises within a
period of two weeks from the date of receipt of a copy of this order,
failing which, it is open to the respondent to seek the assistance of the
Police for taking possession of his property in the light of the judgment
of the Hon'ble Division Bench of this Court in the case of Radhika Sri
Hari .vs. The Commissioner of Police, Coimbatore, reported in
2014(2)CTC 695;
ii) It is made clear that pendency of R.C.A.No.11 of 2018 is
not a bar for the Police to enter the premises by using its Force;
iii) The respondent is at liberty to prefer complaint against the
petitioner before the Bar Council of Tamil Nadu and Puducherry and on
receipt of any such complaint from the respondent, the Bar Council of
Tamil Nadu and Puducherry shall act upon the same in the light of the
provisions of The Advocates Act, 1961, more particularly Section 35,
referred to supra.
17. Though the directions issued by this Court may appear
beyond the purview of a Transfer Petition, this Court is empowered to
mould the relief by invoking the inherent powers of this Court as
provided under Section 151 of CPC to pass orders to meet the ends of
justice or to prevent abuse of the process of the Court. Unless such
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person with unprofessional conduct is dealt with an iron hand, the
noble profession cannot be safeguarded and if this kind of Advocate
is not taught a lesson, it will definitely set a bad precedent to the
Public and create a bad image about Lawyers in the society, as the
person like the petitioner ought to be nipped at the bud itself and it
is for the Bar Council to decide on the same.”
12. With reference to the R.L.T.O.P. proceedings, Section 34(6) of the
Tamil Nadu Regulation of Rights and Responsibilities of Landlord and Tenants
Act, 2017, stipulates that all the applications under clauses (a), (b), (c), (e), (f) and
(h) of sub-section (2) of section 21 shall be decided within 90 days of filing of
application to the Rent Court. However, in the present case the R.L.T.O.P. filed in
the year 2020 by the writ petitioner is kept pending for the past about 3 years and
the petitioner being a senior citizen, aged about 83 years, is not in a position to
defend and dispose of the R.L.T.O.P. Proceedings. Under these circumstances, we
are of the considered opinion that in the near future the second respondent will not
allow the Rent Control Proceedings to come to an end.
13. Pertinently, the petitioner produced a copy of the undertaking given
by the second respondent before the Deputy Superintendent of Police, Manapparai
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dated 19.08.2020. The said undertaking given by his own hand reads as under:-
“cah;jpU. fhty;Jiw Jiz fz;fhzpg;ghsh;> kzg;ghiw
mth;fs; Kd;ghf>
jpUr;rp khtl;lk;> kzg;ghiw tl;lk;> kzg;ghiw lt[d;>
fhpf;fhd;Fsk; bjU> Jsrp gpUe;jh ,y;yj;jpy; FoapUf;Fk; ghyKj;J kfd;
gh.rjhrptk; taJ 50 Mfpa ehd;
nkw;go FoapUg;gpy; gpur;rid Vw;gl;ljhy; tPl;od; chpikahsh;
kw;Wk; Mrphpah; c\huhzp kw;Wk; rpyh; kPJ 13.11.2019 g[fhh; bfhLj;njd;.
mjd;gpd;g[ vd; kPJ c\huhzp Mrphpah; 10.12.2023 g[fhh; bfhLj;J
cs;shh;. ,J rk;ge;jkhf ,Ujug;gpdiua[k; tprhuiz bra;jPh;fs;. ehd;
bfhLj;j g[fhh; rk;ge;jkhf ve;jtpjkhd nky; eltof;ifa[k; vLf;f
ntz;lhk; vd;Wk; ,dp vjph;fhyj;jpy; nkw;go FoapUg;gpy; cs;sth;fsplk;
vd;dhy; ve;jtpj gpur;rida[k; Vw;glhJ vd;W cWjp mspj;Jk;> nkw;go
FoapUf;Fk; tPl;il 2021> nk khjk; fhyp bra;J tpLfpnwd; vd;gij
bjhptpj;Jf; bfhs;fpnwd;.”
14. As per the said undertaking, the second respondent has said that he
will vacate the subject premises and hand over vacant possession to the writ
petitioner in May, 2021. But 2 ½ years lapsed and still the second respondent is
adamant by stating that he requires four more years to vacate the premises. The
tenor of arguments advanced by the second respondent who appeared in person
before us would be sufficient to form an opinion that he has no idea to vacate the
premises in the near future. Curiously, he being the tenant has gone to the extent
of denying the title of the landlord / writ petitioner.
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15. We have carefully considered the facts and circumstances placed
before us. The arguments advanced by the second respondent advocate before us
in person are neither candid nor convincing but the tone reveals that he is not
intending to vacate the subject premises and hand over vacant possession to the
landlord, who is aged about 83 years, who is also present before us.
16. The second respondent / tenant mainly argued that several false
allegations are raised against him by the petitioner / landlord. At this juncture, we
posed a question before the writ petitioner, whether he is interested in
withdrawing the allegations raised by him against the second respondent. When
the answer is in positive, the second respondent negatived the same by stating that
he requires four more years for vacating the premises. Further, the second
respondent has admitted the undertaking given before the Deputy Superintendent
of Police, Manapparai dated 19.08.2020. Thus, the second respondent is
approbating and reprobating in respect of his own statements and we are not
convinced with the stand taken by the second respondent.
17. We are aware that that landlord – tenant dispute is pending before
the R.L.T.O.P. Court from the year 2020. The said proceedings are being
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prolonged and protracted at the instance of the second respondent, who has filed
four interlocutory applications, which all are pending. The idea of second
respondent to prolong the R.L.T.O.P. proceedings are explicit since he has filed an
application to examine a third party in a rent control proceedings.
18. Therefore, we have no hesitation in forming an opinion that the
second respondent has abused his position as a lawyer against the writ petitioner,
who is a senior citizen, aged about 83 years and the landlord in the present case.
19. Considering the unique facts and circumstances and taking note of
the status of the second respondent as an active practising lawyer and further
considering the fact that the petitioner / landlord is a senior citizen, aged about 83
years old, and there is no possibility of completing the litigations in the near
future, we are inclined to invoke the extraordinary jurisdiction conferred on us
under the Constitution of India and mould the relief in the Writ Petition, especially
to prevent the abuse of process of Court at the instance of the second respondent.
Accordingly, the following directions are issued:-
(i) for the purpose of executing our orders, it is necessary to suo motu
implead the Superintendent of Police, Tiruchirappalli District, and the Deputy
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Superintendent of Police, Manapparai, Tiruchirappalli District, as respondents 3
and 4 and Mr.Veeranthiran, learned Government Advocate takes notice for the
respondents 3 and 4.
(ii) The second respondent is directed to vacate the subject premises
belonging to the writ petitioner on or before 06.12.2023.
(iii) In the event of failure on the part of the second respondent in
vacating the premises on or before 06.12.2023, the respondents 3 and 4 are
directed to vacate the subject premises and handover vacant possession to landlord
writ petitioner within a period of two days from 07.12.2023 and submit a report
before this Court on 12.12.2023.
20. Accordingly, the Writ Petition stands allowed and the Registry is
directed to list the matter for reporting compliance on 12.12.2023 at 10.30 a.m. No
costs.
(S.M.S., J.) & (V.L.N., J.)
22.11.2023
NCC : Yes / No
Index : Yes / No
SJ
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To
1.The Superintendent of Police,
Tiruchirappalli District.
2.The Deputy Superintendent of Police,
Manapparai,
Tiruchirappalli District.
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S.M.SUBRAMANIAM, J.
AND
V.LAKSHMINARAYANAN, J.
SJ
22.11.2023
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