CHANDER PRAKASH TYAGIversusSHRI BENARSI DAS(DEAD) BY LRS. AND OTHERS

                   [2015) 2 S.C.R. 1029


              CHANDER PRAKASH TYAGI                           A
                             v.
              SHRIBENARSI DAS(DEAD)
                BY LRS. AND OTHERS
                                                              B
             (Civil Appeal No. 2581 of 2005)

                    MARCH 17, 2015.

     [T.S. THAKUR AND PRAFULLA C. PANT, JJ.)                  C
     Advocates Act, 1961; Bar Council of India Rules: Part
VI; Section II Regulation 33 - Misconduct - Collusion of
Advocate. with opponents - Complaint against appellant-
Advocate that he having accepted the fee from the D
complainant for contesting a case for guardianship of his
grandson, also subsequently accepted brief from opponents
for filing suit against complainant's grandson - Complaint
dismissed by State Bar Council on the ground that the
appellant had withdrawn his Vakalatnama from two suits E
and that the two proceedings were of different nature -
On appeal, Bar Council of India held the appellant guilty of
misconduct and suspended his right to practice for one year
- Held: The spirit contained in Regulation 33 is that where
a lawyer commits breach of his duty in respect of fiduciary F
obligation arising out of the relationship between himself and
his client, he is guilty of misconduct of conflict of interest -
Therefore, appellant was rightly held guilty of misconduct.

    Dismissing the appeals, the Court
                                                             G
   HELD: Regulation 33 of Section II of Part VI of Bar
Council of India Rules restrains a lawyer from acting

                           1029
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1030      SUPREME COURT REPORTS                 [2015] 2 S.C.R.


 A 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
 B basis of Rule 33 is that there is likelihood or possibility
   of misuse of the instructions given to the lawyer by his
   former client. The argument advanced on behalf of the
   appellant cannot be accepted that the appellant has
   committed no misconduct as the proceedings in which
 C the appellant appeared for and against the sarrie client
   were different in nature, particularly, in view of the fact
   that the property involved in both the cases was the
   same. The appellant was given proper opportunity to
   explain his conduct by the Disciplinary Committee of
 0
   B.C.I., as there was no violation of proviso to sub-
   section (2) of Section 37 of the Advocates Act, 1961.
   [Paras 11, 12, 16] [1036-B, D-F] [1038-G] [1039-A-B]

       11.C. Rangadurai v. D. Gopalan and Ors. (1979) 1 SCC
 E 308: 1979 (1) SCR 1054; Noratanmal Chourasia v. M.R.
   Mulri and Anr. (2004) 5 SCC 689: 2004 (1) Suppl. SCR
   266; O.P. Shanna and Ors. v. High Court of Punjab and
   Haryana (2011) 6 SCC 86:2011 (6) SCR 301; Dhanraj
 F Singh Choudhary v. Nathulal Vishwakanna (2012) 1 SCC
   741:2011 (16) SCR 240 - relied on.

                       Case law reference

       1979 (1) SCR 1054            reliedon.       Para 13
 G
       2004 (1) Suppl. SCR 266      relied on.      Para 13

       2011 (6) SCR 301             relied on.      Para 14

       2011 (16) SCR 240            relied on.      Para 15
 H
  CHANDER PRAKASH TYAGI v. .SHRI BENARSI DAS 1031
               (DEAD) BY LRS .
                 •
    CIVIL APPELLATE JURISDICTION: Civil Appeal No. · A
2581 of 2005.

    From the Judgment and Order dated 30.06.2002 of the
Disciplinary Committee of the Bar Council of India in D.C.
Appeal No. 36 of 2001.                                       B
                              with

    C. A. No. 2633 of 2005.

    Sushil Kumar Jain, Sonal Jain for the Appellants.        c
    Ardhendumauli Kumar Prasad, Aviral Shukla, Amit A.
Pai, M. Qamaruddin for the Respondents.

    The Judgment of the Court was delivered by
                                                             D
      PRAFULLA C. PANT, J. 1. This appeal (Civil Appeal
 No. 2581 of 2005), preferred under Section 38 of the
Advocates Act, 1961, is directed against order dated
30.6.2002, passed by the Disciplinary Committee of Bar
Council of India (B.C.I.) whereby the appellant Chander E
 Prakash Tyagi, Advocate, has been held guilty of violation
of Rule 33 of Section II contained in Part VI of Bar Council
of India Rules. Consequently, appellant has been
suspended from practicing for a period of one year, and
directed to pay cost of Rs.2,0001-, out of which Rs.1,0001- F
to be paid to the respondent-complainant and rest of the
amount is directed to be deposited with the Advocates'
Welfare Fund of B.C.I. The appellant is further d.irected to
pay cost of Rs.3,0001- vide order passed on review.
application, dismissed by the Disciplinary Committee, which G
is also challenged through special leave in the connected
Civil Appeal No. 2633 of 2005.

    2. We have heard learned counsel for the parties at
~~h.                                                         H
1032         SUPREME COURT REPORTS                  [2015] 2 S.C.R.


 A          3. Succinctly, factual matrix of the case is that the
       respondent-complainant Banarsi Das instituted case No.
       137 of 1994 before District Judge, Saharanpur, for his
       appointment as guardian of his grandson Komal Arora
       under Section 7 of the Guardians and Wards Act, 1890, as
 B     complainant's son Avtar Singh (father of the minor Komal
       Arora) had died in the year 1992. In said case, appellant
       Chander Prakash Tyagi, advocate, was engaged as his
       counsel. It is alleged by the complainant that the appellant
       did not contest his case properly as he was in collusion with
 C     the "opponents", namely, Dilawar and Nazim, sons of Raja
       Hasan, and the petition for appointment of guardian was
       dismissed for non-prosecution on 2.1.1995. The
       complainant had shown all papers relating to the case to
 D     the appellant and paid his fee. Later, appellant-advocate
       accepted brief of Dilawar for filing suit against complainant's
       grandson Komal Arora in subsequently filed proceedings.
       On this, complainant gave notice to the appellant on
       30.7.1998 to get himself disengaged from Dilawar in suit
 E     Nos. 565 of 1995 and 573 of 1995, instituted before Civil
       Judge, Senior Division, Saharanpur, against Komal Arora
       and others. However, he did not care, on which complainant
       made a complaint, supported by affidavit and other papers,
       to the Bar Council of Uttar Pradesh, Allahabad (for short
 F     "the State Bar Council").

        4. The State Bar Council registered above complaint as
   Disciplinary Case No. 13 of 1999 and issued notice to
   appellant Chander Prakash Tyagi (Advocate). In his reply
 G before Disciplinary Committee of the State Bar Council, the
   appellant admitted that he was engaged by Dilawar and
   Nazim in suit Nos. 565 of 1995 and 573 of 1995 against
   Komal Arora. However, he pleaded that no sooner he came
   to know that he had been counsel for Komal Arora in the
 H earlier proceedings, he withdrew his Vakalatnama from the
  CHANDER PRAKASH TYAGI v. SHRI BENARSI DAS 1033
     (DEAD) BY LRS. (PRAFULLA C. PANT, J.]

above mentioned suits. It is. further pleaded by him that A
the case for appointment of guardian and the suit for
specific performance of contract were of different nature,
and he did not commit·any misconduct. He further pleaded
that the respondent-complainant had taken papers back
from him; as such, he was not obliged thereafter to B
prosecute his case No. 137 of 1994, which was dismissed
on 2.1.1995 for non-prosecution.

    5. The Disciplinary Committee of the State Bar Council
dismissed the complaint, vide order dated 6.6.2000, in view C
of the fact that the advocate (present appellant) had
withdrawn his Vakalatnama from the two suits, and
accepted the plea that the two proceedings, one filed on
behalf of Komal Arora and the other two filed against him,
were of different nature.                                   D

     6. Aggrieved by the order passed by the Disciplinary
Committee of the State Bar Council, the complainant,
resorting to Section 37 of the Advocates Act, 1961, preferred
D.C. Appeal No. 36 of 2001 before the Bar Council of India. E
The Disciplinary Committee of B.C.I., after hearing both the
side,s, opined that Chander Prakash Tyagi, Advocate, is
guilfy of misconduct, and his right to practice as an advocate
was suspended for a period of one year and he was further
directed to pay cost of Rs.2,000/-, out of which Rs.1,000/- F
was required to be deposited with Advocates' Welfare Fund
of B.C.l.

     7. The review petition filed by the appellant was also
dismissed by the Disciplinary Committee ofB.C.I., upholding G
its earlier order, and it further directed the erring advocate
to pay Rs.3,000/- as cost of the review petition, out of which
Rs.1,000/- to be paid to the respondent-complainant and
rest of the amount was to be deposited with the Bar Council
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1034         SUPREME COURT REPORTS                  [2015] 2 S.C.R.


 A     of India Advocates' Welfare Fund. Hence, these appeals.

         8. Learned counsel for the appellant argued before us
   that neither any charge was framed against the appellant
   nor principles of natural justice were adhered to by the
 B Disciplinary Committee of B.C.I., as such, the impugned
   orders passed by said authority are liable to be set aside.
   It is further contended that the proceedings under Section
   7 of the Guardians and Wards Act, 1890, in which he was
   engaged by the complainant for his appointment as
 C guardian of his minor grandson Komar Arora, and the suits
   filed on behalf of Dilawar, though in respect of same
   property, were of totally different nature, as such it cannot
   be said that the appellant has committed any misconduct.
   It is also submitted on behalf of the appellant that since the
 D complainant did not pay the fee and took the papers back
   from him, and he (complainant) himself was prosecuting the
   case under Guardians and Wards Act, 1890 personally, the
   appellant is not responsible for dismissal of the case for
   non-prosecution.
 E
        9. On the other hand, on behalf of the respondents,
   defending the impugned orders, it is argued that the guilt
   of misconduct on the part of the advocate was established
   on record from the certified copies of the papers and the
 F admissions made by the appellant. It is further argued that
   the impugned orders passed by the Disciplinary Committee
   of B.C.I. are justified in the facts and circumstances of the
   case.

 G          10. Before further discussion, we think it just and proper
       to quote the relevant provisions of law, which are applicable
       to this case. Section 35 of the Advocates Act, 1961, reads
       as under: -

 H         "35. Punishment of advocates for misconduct. - (1)
 CHANDER PRAKASH TYAGI v. SHRI BENARSI DAS 1035
    (DEAD) BY LRS. [PRAFULLA C. PANT, J.]

Where on receipt of a complaint or otherwise a State Bar A
Council has reason to believe that any advocate on its roll
has been guilty of professional or other misconduct, it shall
refer the case for disposal to its disciplinary committee.

    (1A} The State Bar Council may, either of its own motion B
    or on application made to it by any person interested,
    withdraw a proceeding pending before its disciplinary
    committee and direct the inquiry to be made by any
    other disciplinary committee of that State Bar Council.
                                                               c
    (2) The disciplinary committee of a State Bar Council
    shall fix a date for the hearing of the case and shall
    cause a notice thereof to be given to the advocate
    concerned and to the Advocate-General of the State.
                                                               D
    (3) The disciplinary committee of a State Bar Council
    after giving the advocate concerned and the Advocate-
    General an opportunity of being heard, may make any
    of the following orders, namely: -

  (a) Dismiss the complaint or, where the proceedings were     E
       initiated at the instance of the State Bar Council,
       direct the proceedings be filed;

  (b) Reprimand the advocate;
                                                               F
  (c) Suspend the advocate from practice for such period
      as it may deem fit;

  (d) Remove the name of the advocate from the State
      roll of advocates.
                                                               G
   (4) Where an advocate is suspended from practice
   under clause (C) of sub-section (3), he shall, during the
   period of suspension, be debarred from practicing .in
   any court or before any authority or person in India.
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1036         SUPREME COURT REPORTS                  [2015) 2 S.C.R.


 A         (5) Where any notice is issued to the Advocate-General
       under sub-section (2), the Advocate-General may appear
       before the disciplinary committee of the State Bar Council
       either in person ·or through any advocate appearing on his
       behalf."
 B
            11. 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: -

 C          "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."

        12. The spirit contained in the rule 33, quoted above,
 0
   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
 E 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
 F of Rule 33 is that there is likelihood or possibility of misuse
   of the instructions given to the lawyer by his former client.

            13. In 11.C. Rangadurai v. D. Gopalan and others',
       this Court has held that where advocate finds there would
 G     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


 H     1 (1979) 1 sec 30s
  CHANDER PRAKASH TYAGI v. SHRI BENARSI DAS 1037
      (DEAD) BY LRS. [PRAFULLA C. PANT, J.]

Court in Noratanma/ Chourasia v. M.R. Mulri and A
another, has explained that misconduct is a transgression
of some established and definite rule of action.

   14. In O.P. Sharma and others v. High Court of .
Punjab and Haryana3, this Court has made following B
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 c
     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. AU the functionaries, be it advocates,
   · Judges and the rest of the staff ought to act in D
     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 E
     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 F
    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 G
    an advocate is unfortunate and unacceptable. Ignoring

3 (2011) 6 sec 86

2 (2004) s sec 689                                            H
1038         SUPREME COURT REPORTS                   [2015] 2 S.C.R.


 A          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
 B          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
 C          associates with legal service activities. Most importantly,
            he should faithfully abide by the standards of
            professional conduct and etiquette prescribed by the
            Ba~ Council of India in Chapter II, Part VI of the Bar
            Council of India Rules."
 D
            15. In Dhanraj Singh Choudhary v. Nathulal
       Vishwakarma', discussing the nobility of the profession of
       lawyers, this Court has made following observations: -

 E          "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
 F          high standard of professional ethics and morality."

        16. In view of the above discussion, we are unable to
   accept the argument advanced on behalf of the appellant
   that the appellant has committed no misconduct as the
 G proceedings in which the appellant appeared for and against
   the same client are different in nature, particularly, in view
   of the fact that the property involved in both the cases was


 H     4 (2012) 1 sec 741
  CHANDER PRAKASH TYAGI v. SHRI BENARSI DAS 1039
     (DEAD) BY LRS. [PRAFULLA C. PANT, J.]

the same. We agree with the learned counsel for the B.C.I. A
that the appellant was given proper opportunity to explain
his conduct by the Disciplinary Committee of B.C.I., as is
evident from the impugned orders, there is no violation of
proviso to sub-section (2) of Section 37 of the Advocates
Act, 1961.                                                 B

     17. Therefore, we find no force in these appeals which
are liable to be dismissed and the same are dismissed with
no order as to costs. Copy of this order shall be sent to
the Bar Council of Uttar Pradesh, Allahabad as also to the     C
District Judge, Saharanpur.
Devika Gujral                             Appeals dismissed.