Holding

The Supreme Court upheld the finding of professional misconduct and restored the five‑year suspension, setting aside the Bar Council of India's enhancement to ten years due to a breach of natural‑justice requirements.

Summary

The appellant, advocate D.P. Chadha, was engaged by his client, Triyugi Narain Mishra, to defend an ejectment suit. While the client was away, Chadha used a blank vakalatnama and blank paper signed by the client to fabricate a compromise petition and a receipt, causing a decree for eviction without the client’s knowledge. The State Bar Council found Chadha guilty of professional misconduct and suspended him for five years; the Bar Council of India later enhanced the suspension to ten years. Chadha appealed, arguing that he was unaware of the compromise, that the blank documents were not obtained from the client, and that the enhancement violated natural‑justice principles. The Supreme Court held that the use of blank documents to mislead the court and deprive the client of his rights constituted grave professional misconduct, and that the Bar Council of India failed to give Chadha a proper notice and hearing before enhancing the punishment. Consequently, the Court upheld the misconduct finding, restored the original five‑year suspension, and set aside the enhancement.

Issues considered

The use of a blank vakalatnama and blank paper to fabricate a compromise without the client’s knowledge amounts to professional misconduct under the Advocates Act, 1961.
Whether the Bar Council of India can enhance a disciplinary punishment without complying with the principles of natural justice (notice and hearing).
The necessity of personal appearance of parties for verification of a compromise under Order 23 Rule 3 of the CPC.
The maintainability of the appellate court’s order allowing a compromise to be recorded without the parties’ personal presence.
The correctness of the findings of the State Bar Council and the Bar Council of India.

Legislation cited

Advocates Act, 1961s. 37, s. 38
Code of Civil Procedure, 1908s. Order 23 Rule 3, s. Order 3 Rule 1, s. Order 43 Rule 1, s. Section 104

Subjects

professional misconductadvocates actbar council disciplinenatural justiceblank vakalatnamacompromise verificationCPC Order 23suspension of advocatedisciplinary proceedings

Judgment

D.P. CHADHA A
v.
TRIYUGl NARAIN MISHRA AND ORS.

DECEMBER 5, 2000

[DR. A.S. ANAND. CJ., R.C. LAHOTI AND B
K.G. BALAKRISHNAN, JJ.]

Advocates Act, 1961- Sections 37 and 38- Professional Misconduct.
meaning- Advocate, engaged by complainant in an ejectment suit, utilised
signed blank vakalatnarna and blank paper in a compromise petition to the C
detrimental to the interest of the complainant without his knowledge-
Decree passed against the complainant without personal presence of
complainant-State Bar Council and Bar Council of fndia holding advocate
guilty of professional misconduct Held, findings concurred with-Advocate
guilty of profesoional mis-conduct-.. ·Civil Procedure Code, 1908- --Order 23 D
Rule 3.

Power of Bar Council of India- Enhancement of Punishment Ji-om 5
years to JO years-Principles of Natural Justice-Held, enhancement of
punishment-Not be done without putting the guilty advocate on notice and
allowing an opportunity of being heard to the person aggrieved E
Judicial Orders--Record ofproceedings made by Court is sacrosanct-
Any one disputing correctness of facts stated therein must move the same
court for rectification.

Advocate· -Duty to Court-Must not drag in doubt a settled or non- F
controversial point of law-Misleading or deceiving Court to cause damage
to own clients interest is gravest professional misconduct.

Appellant-advocate was engaged by respondent-complainant, who was
running a school with 2000 students in suit-premises, for defending him in
a ejectment suit filed by landlord:company before Trial Court. While the G
proceedings in the suit was going on in the Trial Court, the complainant was
busy contesting some election. The appellant utilised a blank vakalatnama
and blank paper, which were signed by the compl;iinant and given to the
appellant for court proceedings, in fabricating a compromise petition without
the knowledge of the complainant. The blank vakalatnama was utilised in H
345

\
346 SUPREME COURT REPORTS [2000\ SllPP. 5 S.C.R.

A engaging another Advocate A to act on behalf of the complainant for
verification of compromise. The blank paper was utilised in preparing a
receipt purportedly executed by complainant acknowledging receipt of Rs. 5
lacs by way of damages from landlord for vacating the suit-premises. The
Trial Court directed personal presence of the parties for verification of the
compromise. The Advocate for landlord, instead, filed an appeal before
B Appellate Court against the order of the Trial Court challenging personal
presence of the parties. Notice was issued to the complainant through the
Advocate A, who filed a memo of appearance and not a vakalatnama for the
complainant. The complainant was not informed of the court proceedings.
The Appellate Court dismissed the appeal as not maintainable and the matter
C was remanded back to the Trial Court. The Trial Court again directed personal
appearance of the parties for verification of compromise. The appellant
contended before the Trial Court that the personal presence of the complainant
is not required and that the presence of the Advocate was enough for verification
of compromise. The Trial Court, by a detailed order and issuing a notice,
directed personal presence of the complainant on the next date of hearing.
D The Advocate for landlord again filed an appeal before the Appellate Court
against the order of the Trail Court challenging personal appearance of the
parties. The Appellate Court allowed the appeal and directed the Trial Court
to pass decree in terms of compromise without insisting on personal
appearance of parties. The Trial Court passed a decree in terms of compromise
E detrimental to the complainant in the presence of the advocates of landlord
and complainant. The decree directed the suit premises to be vacated by the
complainant.

A complaint was made to State Council for professional miscondurt by
the appellant who had colluded with other Advocates and the landlord to bring
F compromise without the knowledge of the complainant. The appellant was
held guilty of professional misconduct by the State Bar Council and punished
with suspension from practice for a period of 5 years. The appellant filed an
appeal under Section 37 of the Advocates Act, 1961 before Bar Council of
India. The Bar Council not only dismissed the appeal but also enhanced the
G punishment of appellant to I 0 years. Hence this appeal.

The appellant contended that he was not aware of the compromise
petition and the various proceedings relating thereto leading to verification
of the compromise and passing of the decree; that he never obtained blank
vakalatnama and blank paper signed from the complainant; that he had not
H appeared before the Trial Court; that the personal presence of the parties
O.P. CHADHA v. T.N. MISHRA 347
was not required for verification of compromise petition; that the Bar Council A
of India was not justified in enhancing the punishment by increasing the
period of suspension from practice from 5 years to 10 years; and that the
order enhancing the punishment is vitiated by non-compliance with principles
of natural justice.

Partly allowing the appeal, the Court B

HELD : I. I. The State Bar Council and the Bar Council of India have
correctly arrived at the findings of the fact. There was nothing like emergency,
not even an urgency for securing verification of compromise and passing of
a decree in terms thereof. The counsel for the parties were replaced apparently C
for no reason. The Trial Court entertained doubts about the genuineness of
the compromise and therefore directed personal appearance of the parties
for verification of the compromise. The counsel appearing in the case made
all possible efforts at avoiding compliance with the direction of the Trial
Court and to see that the compromise was verified and taken on record
culminating into a decree without the knowledge of the complainant. Instead D
of securing the presence of the complainant before the Court, the counsel
preferred appeals twice and ultimately succeeded in securing an appellate
order, which too is collusive, directing the Trial Court to verify and take on
record the compromise without insisting on personal appearance of the
defendant. Such miscellaneous appeal was not maintainable under Section
104 or Order 43 Rule 1 of the C.P.C. or any other provision of law. In an E
earlier round the Appellate Court had expressed that view. The proceedings
in the Appellate Court and the Trial Court show an effort on the part of the
counsel appearing thereat to have the matter as to compromise disposed of
hurriedly, obviously with a view to exclude the possibility of the complainant
gathering any knowledge of what was transpiring. The Appellate Court F
allowed the appeal which was not even maintainable. But for the order, the
Trial Court would not have taken on record the compromise and passed decree
in terms thereof unless the parties had personally appeared before the Court.
The appellant was not right in resisting the order of the Trial Court requiring
personal appearance of the defendant for verifying the compromise. This
resistance speaks volumes of sinister design working in the minds of the G
guilty Advocates. Even during the course of these proceedings and also during
the course of hearing of the appeal before the Court there is not the slightest
indication of any justification behind resistance offered by the counsel to the
appearance of the complainant in the Trial Court.
(356-G, H; 357-A, B, C, D, E; 358-D, El H

-,
\
348 SUPREME COURT REPORTS [2000] SUPP. S S.C.R.

A 1.2. The correctness of the proceedings of the Trial Con rt cannot be
doubted. The record of proceedings made by the Court is sacrosanct. The
correctness thereof cannot be doubted merely by asking. The explanaticn
given by the appellant for not moving the Trial Court for rectification in the
record of proceedings is that the Presiding Judge of the Court was
B transferred and therefore it would have been futile to move for rectification.
Such an explanation is a ruse merely. The application for rectification should
have been moved as the only course permissible and, if necessary, the record
could have been sent to that very Judge for dealing with prayer of rectification
wherever he was posted. In the ab~ence of steps for rectification having been
taken, a challenge to the correctness of the facts recorded in the order sheet
C of the Court cannot be entertained, much less upheld.
1358-E; 359-E; 360-E, F]

2.1. The term 'misconduct' is an expression with a sufficiently wide
meaning. In view of the prime position which the Advocates occupy in the
process of administration of justice and justice delivery system, the Courts
D justifiably expect from the lawyers a high standard of professional and moral
obligation in the discharge of their duties. Any act or omission on the part
of a lawyer which interrupts or misdirects the sacred flow of justice or
which renders a professional unworthy of right to exercise the privilege of
the profession would amount to misconduct attracting the wrath of disciplinary
E jurisdiction. (360-G, H; 361-AI

2.2. A mere error of judgment or expression of a reasonable opinion
or taking a stand on a doubtful or debatable issue of law is not a misconduct;
the term takes its colour from the underlying intention. But at the same time
misconduct is not necessarily something involving moral turpitude. It is a
F relative term to be construed by reference to the subject matter and the
context wherein the t.erm is called upon to be employed. A lawyer in discharging
his professional assignment has a duty to his client, 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 and arrive at the place of righteous
G stand more so when there are conflicting claims. While discharging duty to
the court, a lawyer should never knowingly be a party to any deception, design
or fraud. While placing the law before the court a lawyer is at liberty to put
forth a proposition and canvass the same to the best of his wits and ability
so as to persuade an exposition which would serve the interest of his client
so long as the issue is capable of that resolution by adopting a process of
H reasoning. However, a point of law well settled or admitting of no controversy
D.P. CHADHA v. T.N. \1ISHRA 349
must not be dragged into doubt solely with a view to confuse or mislead the A
Judge and thereby gaining an undue advantage to the client to which he may
not be entitled. Such conduct of an advocate becomes worse when a view of
the law canvassed by him is not only unsupportable in law but if accepted
would damage the interest of the client and confer an illegitimate advantage
on the opponent. In such a situation the wrong of the intention and impropriety B
of the conduct is more than apparent. Professional misconduct is grave when
it consists of betraying the confidence of a client and is gravest when it is
a deliberate attempt at misleading the court or an attempt at practising
deception or fraud on the court. The client places his faith and fortune in
the hands of the counsel for the purpose of that case; the court places its
confidence in the counsel in case after case and day after day. A client C
dissatisfied with his counsel may change him but the same is not with the
court. And so the bondage of trust between the court and the counsel admits
of no breaking. (361-E, F, H; 362-A, B, q

2.3. Mutual confidence in the discharge of duties and cordial relations
between confidence in the discharge of duties and cordial relations between D
Bench and Bar smoothen the movement of chariot. As a responsible officer
of the Court, the counsel have an over all obligation of assisting the Courts
in a just and proper manner in the just and proper administration of justice.
Zeal and enthusiasm are the traits of success in profession but over
zealousness an misguided enthusiasm have no place in the personality of a E
professional. (362-F, GI

3.1. A charge of misconduct is a serious matter for a practising
Advocate. A verdict of guilt of professional or other misconduct may result
in reprimanding the Advocate, suspending the Advocate from practice for
such period as may be deemed fit or even removing the name of the Advocate F
from the roll of Advocates which would cost the counsel his career. Therefore,
an allegation of misconduct has to be proved to the hilt. The evidence adduced
should enable a finding being recorded without any element of reasonable
doubt. In the present case, both the State Bar Council and the Bar Council
of India have arrived at, on proper appreciation of evidence, a finding of G
professional misconduct having been committed by the appellant. No
misreading or non-reading of the evidence has been pointed out. The
involvement of the appellant in creating a situation resulting into recording
of a false and fabricated compromise, apparently detrimental to the interest
of his client, is clearly spelled out by the findings concurrently arrived at
with which there is no reason to interfere. f363-G, H; 364-A-BJ H

\
\
350 SUPREME COURT REPORTS (2000] SUPP. 5 S.C.R.

A 3.2. The power of the Court to direct personal presence of any party
is inherent and implicit in jurisdiction visiting in the Court to take decision.
This power is a necessary concomitant of Court's obligation to arrive at a
satisfaction and record the same as spelt out from the phraseology of Order
23 Rule 3 C.P.C. It is explicit in Order 3 Rule I. This position of law admits
B of no doubt. Strong resistance was offered to an innocuous and cautions
order of the Court by canvassing an utterly misconceived proposition, even
by invoking a wrong appellate forum and with an ulterior motive. The counsel
appearing for the complainant, including the appellant, did their best to see
that their own client did not appear in the Court and thereby gather knowledge
of such proceedings. At no stage, includini: the hearing before this Court,
C the appellant has been able to explain liOW and in what manner he was serving
the interest of his client, i.e. the defendant in the suit by raising the plea
which he did. The compromise was filed in the Court. The defendant was
away electioneering in his constituency. At best or at the worst, the reconling
of the compromise would have been delayed by a few days. In the facts and
circumstances of the case there is no reason to dislodge the finding of
D professional misconduct as arrived at by the State Bar Council and the Bar
Council of India. (364-0, E, F, G, Hf

4.1. Very wide jurisdiction has been conferred on the Bar Council of
India under Section 37 of the Advocates Act, 1961. While confirming the
E finding of guilt, the Bar Council of India may vary the punishment awarded
by the Disciplinary Committee of the State Bar Council which power to vary
would include the power to enhance the punishment. An order enhancing the
punishment, being an order prejudicially affecting the Advocate, the proviso
mandates the Advocate reasonable opportunity of being heard. The proviso
embodies the rule of fair hearing. Accordingly and consistently with the
F well-settled principles of natural justice, if the Bar Council of India proposes
to enhance the punishment it must put the guilty advocate specifically on notice
that the punishment imposed on him is proposed to be enhanced. The Advocate
should be given a reasonable opportunity of showing cause against such proposed
enhancement and then he should be heard. (365-E, F, G, H; 366-Af
G
4.2. The exercise by the Bar Council of India of power to vary the
sentence to the prejudice of the appellant is vitiated in the present case for
not giving the appellant reasonable opportunity of being heard. The appellant
is about 60 years of age. The misconduct alleged relates to the year 1993.
The order of State Bar Council was passed in December 1995. In the fact
H and circumstances of the case, the matter is not remitted back to the Bar
D.P. CHA.DHA v. T.N. MISHRA [LAHOTL J.] 351
Council of India for compliance with the requirements of proviso to sub- A
section (2) of Section 37 of the Act as it would entail further delay. The
punishment awarded by the State Bar Council meets the ends of justice.
(366-F, G]
•
Byram Pestonji Gariwala v. Union of India & Ors., AIR (1991) SC
2234; State of Maharashtra v. Ramdas Shrinivas Nayak & Anr., AIR (1982) B
SC 1249; Bhagwati Prasad & Ors. v. Delhi State Mineral Development
Corporation, AIR (1990) SC 371; Bar Council of Maharashtra v. M.V.
Dabholkar, [1976[ 2 SCC 291; George Frier Grahame v. Attorney-General,
Fiji, AIR (1936) PC 224 and Queen v. O'Connell, 7 Irish Law Reports 313,
referred to.
c
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1124 of
1998.

From the Judgment and Order dated 11.12.97 of the Disciplinary
Committee of the Bar Council of India, New Delhi in D.C.A. No. 3 of 1996. D
Dr. J.P. Verghese, Chand Kiran and Dr. Krishan Singh Chauhan for the
Appellant.

Shiv Pujan Singh for the Respondent.

The Judgment of the Court was delivered by E

R.C. LAHOTI, J. Shri D.P. Chadha, advocate, the appellant, has been
held guilty of professional misconduct by Rajasthan State Bar Council and
punished with suspension from practice for a period of five years. Shri Anil
Sharma, advocate was also proceeded against along with Shri D.P. Chadha, F
advocate and he too having been found guitty was reprimanded. An appeal
preferred by Shri D.P. Chadha, advocate under Section 37 of the Advocates
Act, 1961 has not only been dismissed but the Bar Council of India has
chosen to vary the punishment of the appetlant by enhancing the period of
suspension from practice to ten years. The Bar Council of India has also
directed notice to show cause against enhancement of punishment to be G
issued to Shri Anil Sharma, advocate. The Bar Council of India has further
directed proceedings for professional misconduct to be initiated against one
Shri Rajesh Jain, advocate. Shri D.P. Chadha, advocate has prefem:d this
appeal under Section 38 of the Advocates Act, 1961 (hereinafter the Act, for
short).
H
352 SCPREME COL RT REPORTS [2000] SUPP. 5 S.C.R.

A It is not disputed that Upasana Construction Pvt. Ltd. had filed a suit
for ejectment based on landlord-tenant relationship against the complainant
Shri Triyugi Narain Mishra, who was running a school in the tenanted premises
wherein about 2000 students were studying. Shri D.P. Chadha was engaged
by the complainant for defending him in the suit.

B It is not necessary to set out in extenso the contents of the complaint
made by Shri Triyugi Narain Mishra to the Bar Council. It would suffice to
notice in brief the findings concurrently arrived at by the State Bar Council
and the Bar Council of India constituting the gravamen of the charge against
tlie appellant. While the proceedings in the ejectment suit were going on in
C the Civil Court at Jaipur, the complainant was contesting an election in the
State of U.P. Polling was held on 18.11.1993 and again on 22.11.1993 on which
dates as also on the days intervening, Shri Triyugi Narain Mishra was in
Chilpur in the State of U.P. looking after the election and was certainly not
available at Jaipur. Shri D.P. Chadha was in possession of a blank vakalatnama
and a blank paper, both signed by the complainant, given to him in the first
D week of October, 1993. These documents were used for fabricating a
compromise petition whereby the complainant has been made to suffer a
decree for eviction. The blank vakalatnama was used for engaging Shri Anil
Sharma, advocate, on behalf of the complainant, who got the compromise
verified. Though the compromise was detrimental to the interest of the
E complainant yet the factum of compromise and its verification was never
brought to the notice of the complainant inspite of ample time and opportunity
being available for the purpose. The proceedings of the court show a deliberate
attempt having been made by three erring advocates to avoid the appearance
of the complainant before the court, to prevent the complainant from gathering
knowledge of the compromise filed in court and creating a situation whereby
F the court was virtually compelled to pass a decree though the court was
feeling suspicious of the compromise and wanted presence of complainant to
be secured before it before the decree was passed.

The proceedings of the court and the several documents relating thereto
G go to show that earlier the plaintiff company was being represented by Shri
Vidya Bhushan Sharma, advocate. An application was moved on behalf of the
plaintiff discharging Shri Vidya Bhushan Sharma from the case and instead
engaging Shri Rajesh Jain, advocate on behalf of the plaintiff and in place of
Shri Vidya Bhushan Sharma, advocate. On 17.11.1993 Shri D.P. Chadha was
present in the court though the defendant was not present when an
H adjournment was taken from the court stating that there was possibility of an
D.P. CHADHA v. T.N. MISHRA [LAHOTI, J.] 353
amicable settlement between the parties whereupon hearing was adjourned to A
14.2.1994 for reporting compromise or framing of issues. On 20.11.1993, which
was not a date fixed for hearing, Shri Rajesh Jain and Shri Anil Shanna,
advocates appeared in the court on behalf of the plaintiff and the defendant
respectively and filed a compromise petition. Shri Anil Sharma filed Vakalatnama
purportedly on behalf of the complainant.
B
The compromise petition purports to have been signed by the parties
as also by Shri Rajesh Jain, advocate on behalf of the plaintiff and Shri Anil
Sharma, advocate on behalf of the defendant. The compromise petition is
accompanied by another document purporting to be a receipt executed by the
complainant acknowledging receipt of an amount of Rs.5 lakhs by way of C
damages for the loss of school building standing on the premises. The receipt
is typed but the date 20.11.1993 is written in hand. A revenue stamp of 20
p. is fixed on the receipt in a side of the paper and at a place where ordinarily
the ticket is not affixed. The factum of the defendant having received an
• amount of Rs.5 lakhs as consideration amount for the compromise does not
find a mention in the compromise petition. D

The Learned Additional Civil Judge before whom the compromise petition
was filed directed the parties to remain personally present before the court
on 17 .12.1993 so as to verify the compromise. Instead of complying with the
orders, Shri Rajesh Jain, advocate filed a misce. civil appeal raising a plea that E
the trial court was not justified in directing personal appearance of the parties
and should have recorded the compromise on verification by the advocates.
The complainant Shri Triyugi Narain Mishra was impleaded as respondent
'through advocate Shri Anil Shanna'-as stated in the cause title of memo
of appeal. The appeal was filed on 20.12.1993. Notice of appeal was not issued
to the complainant; the same was issued in the name of Shri Anil Shanna, F
advocate, who accepted the same. Shri Anil Shanna, advocate did not file any
vakalatnama on behalf of the complainant in the appeal and instead made his
appearance by filing a memo of appearance reciting his authority to appear
in appeal on the basis of his being a counsel for the complainant in the trial
court. This appeal was dismissed by the Learned Additional District Judge G
on 24.1.1994 holding the appeal to be not maintainable.

On 30.1.1994, the trial court's record was returned to it by the appellate
court. On 17 .12.1993 also the trial court had directed personal appearance of
the parties. On 16.2.1994 the counsel appearing for the parties (the names of
the counsel not mentioned in the order sheet dated 16.2.1994) took time for H
354 SUPREME COURT REPORTS (2000] SUPP. S S.C.R.

A submitting case law for the perusal of the court. Similar prayer was made on
21.2.1994 and 18.3.1994. On 8.4.1994, the plaintiff was present with his counsel.
The defendant/complainant was not present. Shri D.P. Chadha, advocate
appeared on behalf of the defendant and argued that personal presence of
Shri Triyugi Narain Mishra was not required for verification of compromise
B and the presence of the advocate was enough for the court to verify the
compromise and take the same on record. The court was requested to recall
its earlier order directing personal appearance of the parties. A few decided
cases were cited by Shri D.P. Chadha, advocate before the court for its
consideration. The trial court suspected the conduct of the counsel and
passed a detailed order directing personal presence of the defendant to be
C secured before the court. The trial court also directed a notice to be issued
to the defendant for his personal appearance on the next date of hearing
before passing any order on the compromise petition.

Shri Rajesh Jain, advocate again filed an appeal against the order dated
8.4.1994. Again the complainant was arrayed as a respondent in the cause title
•
D 'through Shri Anil Sharma, advocate'. An application was moved before the
appellate court seeking a shorter date of hearing as defendant was likely to
go out. On 21.8.1994 the appellate court directed the record of the trial court
to be requisitioned. Shri Anil Sharma, advocate appeared in the appellate
court without filing any vakalatnama from the complainant. He conceded to
E the appeal being allowed and personal appearance of the defendant not being
insisted upon for the purpose of recording the compromise. The appellate
court was apparently oblivious of the legal position that such a misce. appeal
was not maintainable under any provision of law.

Certified copy of the order of the appellate court was obtained in hot
F haste. Unfortunately, the Presiding Officer of the trial court, who was dealing
with the matter, had stood transferred in the meanwhile. An application was
filed before the successor Trial Judge by Shri Rajesh Jain, advocate requesting
compliance with the order of the appellate court and to record the compromise
and pass a decree in terms thereof dispensing with the necessity of personal
G presence of the parties. On 23. 7. l 994, the Trial Judge, left with no other
option, passed a decree in terms of compromise in the presence of Shri Rajesh
Jain & Shri Anil Sharma, advocates. The decree directed the suit premises to
be vacated by 30. l l.1993 (the date stated in the compromise petition).

Shri Triyugi Narain Mishra, the complainant, moved the State Bar Council
H complaining of the professional misconduct of the three advocates who had
D.P. CHADHA v. T.N. MISHRA [LAHOTI, J.] 355
colluded to bring the false compromise in existence without his knowledge A
and also made all effort to prevent the complainant gathering knowledge of
the alleged compromise.

In response of the notice issued by the State Bar Council, Shri Anil
Sharma, advocate submitted that he did not know Shri Triyugi Narain Mishra B
personally. The vakalatnama and the compromise petition were handed over
to him by Shri D.P. Chadha, advocate for the purpose of being filed in the
court. Shri Anil Sharma was told by Shri D.P. Chadha, advocate that he was
not well and if there was any difficulty in securing the decree then he was
available to assist Shri Anil Sharma. In the two misce, civil appeals preferred
by Shri Rajesh Jain, advocate, Shri Anil Sharma accepted the notices of the C
appeals on the advice of Shri D.P. Chadha, advocate.

Shri D.P. Chadha, advocate took the plea that he was not aware of the
compromise petition and the various proceedings relating thereto leading to
verification of the compromise and passing of the decree. He submitted that
he never obtained blank paper or blank vakalatnama signed by any one at any D
time and not even Shri Triyugi Narain Mishra, the complainant. He also
submitted that on 8.4.1994 his presence has been wrongly recorded in the
proceedings and he had not appeared before the court to argue that the
personal presence of the parties was not required for verification of compromise
petition filed in the court and counsel was competent to sign 2.nd verify the E
compromise whereon the court should act.

Amongst other witnesses the complainant and the three counsel have
all been examined by the State Bar Council and cross examined by the parties
to the disciplinary proceedings. The defence raised by the appellant has been
discarded by the State Bar Council as well as by the Bar Council of India in F
their orders. Both the authorities have dealt extensively with the improbabilities
of the defence and assigned detailed reasons in support of the findings
arrive~ at by them. Both the a';lthorities have found the charge against the
appellant proved to the hilt. The statement of the complainant has been
believed that he had never entered into any compromise a'!d he did not even G
have knowledge of it. His statement that Shri D.P. Chadha, the appellant, had
obtained blank paper and blank vakalatnama signed by him and the same
have been utilised for the purpose of fabricating the compromise and appointing
Shri Anil Sharma, advocate, has also been believed. Here it may be noted that
Shri D.P. Chadha had denied on oath having obtained any blank paper or
vakalatnama from Shri Triyugi Narain Mishra. However, while cross-examining H
356 SUPREME COCRT REPORTS [2000] SUPP. 5 S.C.R.

A the complainant first he was pinned down in stating that only one paper and
one vakalatnama (both blank) were signed by him and then Shri D.P. Chadha
produced from his possession one blank vakalatnama & one blank paper
signed by the complainant. The Bar Council has found that the blank paper,
so produced by the appellant, bore the signature of the complainant almost
at the same place of the blank space at which the signature appears on the
B disputed compromise. Production of signed blank vakalatnama and blank
paper from the custody of the complainant before the Bar Council belied the
appellant's defence emphatically raised in his written statement. On 8.4.1994
the presence of the appellant is recorded by the trial court at least at two
places in the order sheet of that date. It is specifically recorded in the context
C of his making submissions before the court relying on several rulings to
submit that personal appearance of the party was not necessary to have the
compromise verified and taken on record. The appellant had not moved the
court at any time for correcting the record of the proceedings and deleting
his appearance only if the order sheet did not correctly record the proceedings
D of the court. On and around the filing of the compromise petition before the
trial court the appellant was keeping a watch on the proceedings and noting
the appointed dates of hearing though he was not actually appearing in the
court on the dates other than 8.4.1994. In short, it has been found both by
the State Bar Council and the Bar Council of India that the complainant had
not entered in any compromise and that he was not even aware of it. Blank
E vakalatnama and blank paper entrusted by him in confidence to his counsel,
i.e. the appellant, were used for the purpose of bringing a false compromise
into existence and appointing Shri Anil Sharma, advocate for the defendant,
without his knowledge, to have compromise verified and brought on record
followed by a decree. Shri Vidya Bhushan Sharma, the counsel originally
appointed by the plaintiff might not have agreed to a decree being secured
F in favour of the plaintiff on the basis of a false compromise and that is why
he was excluded from the proceedings and instead Shri Rajesh Jain was
brought to replace him. The decree resulted into closure of the school,
demolition of school building and about 2000 students studying in the school
being thrown on the road.
G
We have heard the learned counsel for the parties at length. We have
also gone through the evidence and the relevant documents available on
record of the Bar Council. We are of the opinion that the State Bar Council
as well as the Bar Council of India have correctly arrived at the findings of
the fact and we too find ourselves entirely in agreement with the findings so
H
D.P. CHADHA v. T.N. MISHRA [LAHOTI, J.] 357
arrived at. A
In the very nature of things there was nothing like emergency, not even an
urgency for securing verification of compromise and passing ofa decree in terms
thereof. Heavens were not going to fall ifthe recording of the compromise was
delayed a little and the defendant was personally produced in the court who was
certainly not available in Jaipur being away in the State ofU .P. contesting an election. B
The counsel forthe parties were replaced apparently forno reason. The trial court

- entertained doubts about the genuineness ofthe compromise and therefore directed
personal appearance ofthe parties for verification ofthe compromise. The counsel
appearing in the case made all possible efforts at avoiding compliance with the
direction ofthe trial court and to see that the compromise was verified and taken on C
record culminating into a decree without the knowledge of the defendant/
complainant. Instead of securing presence of the defendant before the court, the
counsel preferred misce. appeals twice and ultimately succeeded in securing an
appellate order, which too is collusive, directing the trial court to verify and take on
record the compromise without insisting on personal appearance ofthe defendant.
Such miscellaneous appeal, as was preferred, was not maintainable under Section D
I04 or0rder43 Rule I ofthe C.P .C. or any other provision oflaw. In an earlier round
the appellate court had expressed that view. The proceedings in the appellate court
as also before the trial court show an effort on the part of the counsel appearing
thereatto have the matter as to compromise dis pl ;ed of hurriedly, obviously with
a view to exclude the possibility of the defendant-complainant gathering any E
knowledge of what was transpiring.

Order 23 Rule 3 of the C.P.C. reads as under:-

"Compromise ofsuit.-Where it is proved to the satisfaction of the Court
that a suit has been adjusted wholly or in part by any lawful agreement F
or compromise, in writing and signed by the parties, or where the
defendant satisfies the plaintiff in respect of the whole or any part of the
subject-matter of the suit, the Court shall order such agreement,
compromise or satisfaction to be recorded, and shall pass a decree in
accordance therewith so far as it relates to the parties to the suit, whether
or not the subject matter of the agreement, compromise or satisfaction is G
the same as the subject-matter of the suit.

xx!('

Byram Pestonji Gariwala v. Union ofIndia & Ors., AIR (1991) SC 2234 H
358 SUPREME COURT REPORTS (2000) SUPP. 5 S.C.R.

A is an authority for the proposition that inspite of the 1976 Amendment in
Order 23 Rule 3 of the C.P.C. which requires agreement or compromise between
the parties to be in writing and signed by the parties, the implied authority
of counsel engaged in the thick of the proceedings in court, to compromise
or agree on matters relating to the parties, was not taken away. Neithe~ the
B decision in Byram Pestonji Gariwala nor any other authority cited on 8.4.1994
before the trial court dispenses with the need of the agreement or compromise
being proved to the satisfaction of the court. In order to be satisfied whether
the compromise was genuine and voluntarily entered into by the defendant,
the trial court had felt the need of parties appearing in person before the court
and verifying the compromise. In the facts & circumstances of the case the
C move of the counsel resisting compliance with the dil ection of the court was
nothing short of being sinister. The learned Additional District Judge who
allowed the appeal preferred by Shri Rajesh Jain unwittingly fell into trap. It
was expected of the learned Additional District Judge, who must have been
a senior judicial officer, to have seen that he was allowing an appeal which
was not even maintainable. But for his order the learned Judge of the trial
D court would not have taken on record the compromise and passed decree in
terms thereof unless the parties had personally appeared before him. In our
opinion the appellant Shri D.P. Chadha was not right in resisting the order of
the trial court requiring personal appearance of the defendant for verifying the
compromise. This resistance speaks volumes of sinister design working in the
E minds of the guilty advocates. Even during the course of these proceedings
and also during the course of hearing of the appeal before us there is not the
slightest indication of any justification behind resistance offered by the
counsel to the appearance of the defendant in the trial court. The correctness
of the proceedings dated 8.4.1994 as recorded by the court cannot be doubted.
The order sheet of the trial court dated 8.4.1994 records as under:
F
8.4.94

(Cutting). Plaintiff with counsel present. Defendant's counsel Shri
D.P. Chadha present. Arguments heard. Judicial precedents A.LR.
1980 Cal 51, A.1.R. 1976 Raj. 195, A.LR. 1991 SC 2234 cited by Shri
G D.P. C'hadha perused. In the matter under consideration, compromise
was filed on 20.11.93 and the same day the counsel wern directed to
keep the parties present in court but parties were not produced. On
behalf of the plaintiff-appellant, an appeal was also preferred against
the order dated 20.11.93 before the Hon 'ble Distt. & Sessions Judge
H but the order of trial court being not appealable, appeal has been
D.P. CHADHA v. T.'1. MISHRA [LAHOTI. .l.j 359
dismissed. A
Para No.40 of the decision AIR (I 991) SC 2234 is as under:

- "Accordingly, we are of the view that the words 'in writing and signed
by the parties' inserted by the CPC(Amendment) Act. 1976 must
necessarily mean to borrow the language of Order III R. l CPC. B
"Any appearance ......... or by a pleader appearing applying or

-- acting as the case may be on his behalf.

Provided that any such appearance shall if the court so desires be
made by the party in person."
c
Thus in my view the court can direct any party to be present in
court under Order III R. l in compliance with the said decision of
Hon 'ble Supreme Court. The counsel for the defendant has not
produced the defendant in court. Therefore, notice be issued to the
defendant to appear personally in court. For service of notice, the D
case be put up on 5.5.94. Before (cutting) preparing the decree on the
basis of compromise, I deem it proper in the interest of justice to direct
the opposite party to personally appear in the court.

• . Sd/- Illegible
Seal of Addi. Civil Judge & Addi. E
Chief Judi. Magistrate No.6, Jaipur City.
[underlining by us]

The record of the proceedings made by the court is sacrosanct. The
correctness thereof cannot be doubted merely for asking. In State of
Maharashtra v. Ramdas Shrinivas Nayak & Anr., AIR (1982) SC 1249, this F
court has held

" .......... the Judges' record was conclusive. Neither lawyer not
litigant may claim to contradict it, except before the Judge himself, but
nowhere else. The court could not launch into inquiry as to what
transpired in th.: High Court.
G
lhe Court is bound to accept the statement of the Judges recorded
in their judgment. as to what transpired in court. It cannot allow the
statement of the Judges to be contradicted by statements at the Bar
or by affidavit and other evidence. If the Judges say in their judgment
that something was done, said or admitted before them, that has to H
360 SUPREME COURT REPORTS [2000] Sl:PP. 5 S.C.R.

A be the last word on the subject. The principle is well settled that
statements of fact as to what transpired at the hearing, recorded in the
judgment of the court, are conclusive of the facts so stated and no
one can contradict such statements by affidavit or other evidence. If

B
a party thinks that the happenings in court have been wrongly recorded
in a judgment, it is incumbent upon the party, while the matter is still
fresh in the minds of the Judges, to call the attention of the very
-
Judges who have made the record to the fact that the statement made
with regard to his conduct was a statement that had been made in
error. That is the only way to have the record corrected. If no such
step is taken, the matter must necessarily end there."
-
c Again in Bhagwati Prasad & Ors. v. Delhi State Mineral Development
Corporation, AIR (1990) SC 371 this Court has held:

"It b now .;ettled law that the statement of facts recorded by a
Court or Quasi-Judicial Tribunal in its proceedings as regards the
D matters which transpired during the hearing before it would not be
permitted to be assailed as incorrect unless steps are taken before the
same forum. It may be open to a party to bring such statement to the
notice of the Court/Tribunal and to have it deleted or amended. It is
not, therefore, open to the parties or the Counsel to say that the
proceedings recorded by the Tribunal are incorrect."
E
The explanation given by the appellant for not moving the trial court
for rectification in the record of proceedings is that the presiding judge of the
court had stood transferred and therefore it would have been futile to move
for rectification. Such an explanation is a ruse merely. The application for
rectification should have been moved as the only course permissible and, if
F necessary, the record could have been sent to that very judge for dealing with
prayer of rectification wherever he was posted. In the absence of steps for
rectification having been taken a challenge to the correctness of the facts
recorded in order sheet of the court cannot be entertained, much less upheld.
We agree with the finding recorded in the order under appeal that the
G proceedings dated 8.4.1994 correctly state the appellant having appeared in
the court and argued the matter in the manner recited therein.

The term 'misconduct' has not been defined in the Act. However, it is
an expression with a sufficiently wide meaning. In view of the prime position
which the advocates occupy in the process of administration of justice and
H justice delivery system, the courts justifiably expect from the lawyers a high
D.P :HADHA v. T.N. MISHRA [LAHOTL J.] 361
standard of profe,sional and moral obligation in the discharge of their duties. A
Any act or omission on the part of a lawyer which interrupts or misdirects
the sacred flow of justice or which renders a professional unworthy of right
to exercise the privilege of the profession would amount to misconduct
attracting the wrath of disciplinary jurisdiction. In the Bar Council of
Maharashtra v. M. V Dabholkar, [ 1976] 2 SCC 291, Krishna Iyer, J. said that B
the vital role of the lawyer depends upon his probity and professional lifestyle.
The central function of the legal profession is to promote the administration
of justice. As monopoly to legal profession has been statutorily granted by
the nation, it obligates the lawyer to observe scrupulously those norms which
make him worthy of confidence of community in him as a vehicle of justice
--social justice. The Bar cannot behave with doubtful scruples or strive to C
thrive on litigation. Canons of conduct cannot be crystalised into rigid rules
but felt by the collective conscience of the practitioners as right. "Law is no
trade, briefs no merchandise." Foreseeing the role which the legal profession
has to play in shaping the society and building the nation, Krishna Iyer, J.
goes on to say·-
D
"For the practice of Law with expanding activist horizons,
professional ethics cannot be contained in a Bar Council rule nor in
traditional cant in the books but in new canons of conscience which
will command the members of the calling of justice to obey rules of
morality and utility, clear in the crystallized case-law and concrete
when tested on the qualms of high norms--simple enough in given E
situations, though involved when expressed in a single sentence."
A mere error of judgment or expression of a reasonable opinion or
taking a stand on a doubtful or debatable issue of law is not a misconduct;
the term takes its colour from the underlying intention. But at the same time
misconduct is not necessarily something involving moral turpitude. It is a F
relative term to be construed by reference to the subject matter and the
context wherein the term is called upon to be employed. A lawyer in discharging
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 and arrive at the G
place of righteous stand more so when there are conflicting claims. While
discharging duty to the court, a lawyer should never knowingly be a party
to any deception, design or fraud. While placing the law before the court a
lawyer is at liberty to put forth a proposition and canvass the same to the
best of his wits and ability so as to persuade an exposition which would serve
the interest of his client so long as the issue is capable of that resolution by H
362 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A adopting a process of reasoning. However, a point of law well settled or
admitting of no controversy must not be dragged into doubt solely with a
view to confuse or mislead the Judge and thereby gaining an undue advantage
to the client to which he may not be entitled. Such conduct of an advocate
becomes worse when a view of the law canvassed by him is not only
unsupportable in law but if accepted would damage the interest of the client
B and confer an illegitimate advantage on the opponent. In such a situation the
wrong of the intention and impropriety of the conduct is more than apparent.
Professional misconduct is grave when it consists of betraying the confidence
of a client and is gravest when it is a deliberate attempt at misleading the court
or an attempt at practising deception or fraud on the court. The client places
C his faith and fortune in the hands of the counsel for the purpose of that case;
the court places its confidence in the counsel in case after case and day after
day. A client dissatisfied with his counsel may change him but the same is
not with the court. And so the bondage of trust between the court and the
counsel admits of no breaking.

D In George Frier Grahame v. Attorney-Genera/, Fiji, AIR (1936) PC 224
the Privy Council has approved the following definition of 'professional
misconduct' given by Darling J. in Re A Solicitor ex parte the Law Society
((1912) 1KB302] -

"If it is shown that an Advocate in the pursuit of his profession
E has done something with regard to it which would be reasonably
regarded as disgraceful or dishonourable by his professional brethren
of good repute and competency, then it is open to say that he is guilty
of professional misconduct."

It has been a saying as old as the profession itself that the court and
F counsel are two wheels of the chariot of justice. In adversarial system it will
be more appropriate to say-while the Judge holds the reigns, the two
opponent counsel are the wheels of the chariot. While the direction of the
movement is controlled by the Judge holding the reigns, the movement itself
is facilitated by the wheels without which the chariot of justice may not move
G and may even collapse. Mutual confidence in tlie discharge of duties and
cordial relations between Bench and Bar smoothen the movement of chariot.
As a responsible officer of the court, as they are called---and rightly, the
counsel have an over all obligation of assisting the courts in a just and proper
manner in the just and proper administration of justice. Zeal and enthusiasm
are the traits of success in profession but over- zealousness and misguided
H enthusiasm have no place in the personality of a professional.

(
I
D.P. CHADHA v. T.N. MISHRA [LAHOTI, J.] 363
An advocate while discharging duty to his client, has a right to do A
every thing fearlessly and boldly that would advance the cause of his client.
After all he has been engaged by his client to secure justice for him. A
counsel need not make a concession merely because it would please the
Judge. Yet a counset, in his zeal to earn success for a client, need not step
over the well defined limits or propriety, repute and justness. Independence B
and fearlessness are not licences of liberty to do anything in the court and
to earn success to a client whatever be the cost and whatever be the sacrifice
of professional norms.

A lawyer must not hesitate in telling the court the correct position of
law when it is undisputed and admits of no exception. A view of the law C
settled by the ruling of a superior court or a binding precedent even if it does
not serve the cause of his client, must be brought to the notice of court
unhesitatingly. This obligation of a counsel flows from the confidence reposed
by the court in the counsel appearing for any of the two sides. A counsel,
being an officer of court, shall apprise the Judge with the correct position of
law whether for or against either party. D
Mr. Justice Crampton, an Irish Judge, said in Queen v. O'Connell, 7
Irish Law Reports, at page 313:

"The advocate is a representative but not a delegate. He gives to
his client the benefit of his learning, his talents and his judgment; but E
all through he never forgets what he owes to himself and to others.
He will not knowingly misstate the law, he will not wilfully misstate
the facts, though it be to gain the case for his client. He will ever bear
in mind that if he be an advocate of an individual and retained and
remunerated often inadequately, for valuable services, yet he has a F
prior and perpetual retainer on behalf of truth and justice and there
is no Crown or other license which in any case or for any party or
purpose can discharge him from that primary and paramount retainer."

We are aware that a charge of misconduct is a serious matter for a
practising advocate. A verdict of guilt of professional or other misconduct G
may result in reprimanding the advocate, suspending the advocate from
practice for such period as may be deemed fit or even removing the name of
the advocate from the roll of advocates which would cost the counsel his
career. Therefore, an allegation of misconduct has to be proved to the hilt.
The evidence adduced should enable a finding being recorded without any
element of reasonable doubt. In the present case, both the State Bar Council H
364 SUPREME COURT REPORTS (2000] SUPP. 5 S.C.R.

A and the Bar Council of India have arrived at, on proper appreciation of
evidence, a finding of professional misconduct having been committed by the
appellant. No misreading or non-reading of the evidence has been pointed
out. The involvement of the appellant in creating a situation resulting into
recording of a false and fabricated compromise, apparently detrimental to the
B interest of his client, is clearly spelled out by the findings concurrently arrived
at with which we have found no reason to interfere. The appellant canvassed
a proposition of law before the court by pressing into service such rulings
which did not support the interpretation which he was frantically persuading
the court to accept. The provisions of Rule '3 of Order 23 are clear. The crucial
issue in the case was not the authority of a counsel to enter into a compromise,
C settlement or adjustment on behalf of the client. The real issue was of the
satisfaction of the court whether the defendant had really, and as a matter of
fact, entered into settlement. The trial judge entertained a doubt about it and
therefore insisted on the personal appearance of the party to satisfy himself
as. to the correctness of the factum of compromise and genuineness of the
statement that the defendant had in fact compromised the suit in the manner
D set out in the petition of compromise.

The power of the court to direct personal presence of any party is
inherent and implicit in jurisdiction vesting in the court to take decision. This
power is a necessary concomitant of court's obligation to arrive at a satisfaction
E and record the same as spelt out from the phraseology of Order 23 Rule 3
C.P.C. It is explicit in Order 3 Rule I. This position of law admits of no doubt.
Strong resistance was offered to an innocuous and cautious order of the
court by canvassing an utterly misconceived proposition, even by invoking
a wrong appellate forum and with an ulterior motive. The counsel appearing
for the defendant, including the appellant, did their best to see that their own
F client did not appear in the court and thereby gather knowledge of such
proceedings. At no stage, including the hearing before this court, the appellant
has been able to explain how and in what manner he was serving the interest
of his client, i.e. the defendant in the suit by raising the plea which he did.
What was the urgency of having the compromise recorded witl10ut producin
the defendant in-person before the court when the court was insisting on
G such appearance? The compromise was filed in the court. The defendant was
away electioneering in his constituency. At best or at the worst, the recording
of the compromise would have been delayed by a few days. In the facts and
circumstances of the case we find no reason to dislodge the finding of
professional misconduct as arrived at by the State Bar Council and the Bar
H Council of India.

r
D.P. CHADHA v. T.N. MISHRA [LAHOTI, J.]

It has been lastly contended by the learned counsel for the appellant A
that the Bar Council of India was not justified in enhancing the punishment
by increasing the period of suspension from practice from 5 years to 10 years.
It is submitted that the order enhancing the punishment to the prejudice of
the appellant is vitiated by non-compliance with principles of natural justice
and also for having been passed without affording the appellant a reasonable E
opportunity of being heard.

Section 3 7 of the Advocates Act, 1961 provides as under:-

37. Appeal to Bar Council of India.--{ I) Any person aggrieved
by an order of the disciplinary committee of a State Bar Council made
under Section 35 [or the Advocate General of the State] may. within C
sixty days of the date of communication of the order to him, prefer an
appeal to the Bar Council of India.

(2) Every such appeal shall be heard by the disciplinary committee
of the Bar Council of India which may pass such order [including an
order varying the punishment awarded by the disciplinary committee C
of the State Bar Council] thereon as it deems fit :

[Provided that no order of the disciplinary committee of the State
Bar Council shall be varied by the disciplinary committee of the Bar
Council of India so as to prejudicially affect the person aggrieved
without giving him reasonable opportunity of being heard.} E
Very wide jurisdiction has been conferred on the Bar Council of India
by sub-section (2) of Section 3 7. The Bar Council of India may confirm, vary
or reverse the order of the State Bar Council and may remit or remand the
matter for further hearing or rehearing subject to such terms and directions
as it deems fit. The Bar Council of India may set aside an order dismissing F
the complaint passed by the State Bar Council and convert it into an order
holding the advocate proceeded against guilty of professional or other
misconduct. In such a case, obviously, the Bar Council of India may pass an
order of punishment which the State Bar Council could have passed. While
confirming the finding of guilt the Bar Council of India may vary the punishment G
awarded by the Disciplinary Committee of the State Bar Council which power
to vary would include the power to enhance the punishment. An order
enhancing the punishment, being an order prejudicially affecting the advocate,
the proviso mandates the exercise of such power to be performed only after
giving the advocate reasonable opportunity of being heard. The proviso
embodies the rule of fair hearing. Accordingly, and consistently with the well- H
\
\
366 SUPREME COCRT REPORTS [2000) SUPP. 5 S.C.R.

A settled principles of natural justice, if the Bar Council of India proposes to
enhance the punishment it must put the guilty advocate specifically on notice
that the punishment imposed on him is proposed to be enhanced. The advocate
should be given a reasonable opportunity of showing cause against such
proposed enhancement and then he should be heard.

B In the case at hand we have perused the proceedings of the Bar Council
of India. The complainant did not file any appeal or application before the Bar
Council of India praying for enhancement of punishment. The appeal filed by
the appellant was being heard and during the course of such hearing it
appears that the Disciplinary Committee of the Bar Council of India indicated
C to the appellant's counsel that it was inclined to enhance the punishment.
This is reflected by the following passage occurring in the order under
appeal:-

"While hearing the matter finally parties were also heard as to the
enhancement of sentence."
D
The appellant himself was not present on the date of hearing. He had
prayed for an adjournment on the ground of his sickness which was refused.
The counsel for the appellant was heard in appeal. It would have been belll:r
if the Bar Council of India having heard the appeal would have first placed
its opinion on record that the findings arrived at by the State Bar Council
E against the appellant were being upheld by it. Then the appellant should have
been issued a reasonable notice calling upon him to show cause why the
punishment imposed by the State Bar Council be not enhanced. After tiving
him an opportunity of filing a reply and then hearing him the Bar Council
could have for reasons to be placed on record, enhanced the punishment.
F Nothing such was done. The exercise by the Bar Council of India of power
to vary the sentence to the prejudice of the appellant is vitiated in the present
case for not giving the appellant reasonable opportunity of being heard. The
appellant is about 60 years of age. The misconduct alleged relates to the year
1993. The order of State Bar Council was passed in December 1995. In the fact
and circumstances of the case we are not inclined to remit the matter now to
G the Bar Council of India for compliance with the requirements of proviso to
sub-section (2) of Section 37 of the Act as it would entail further delay and
as we are also of the opinion that the punishment awarded by the State Bar
Council meets the ends of justice.

For the foregoing reasons the appeal is partly allowed. The finding that
H the appellant is guilty of professional misconduct is upheld but the sentence
r
(
D.P. CHADHA v. T.N. MISHRA [LAHOTI, J.] 367
awarded by the Rajasthan State Bar Council suspending the appellant from A
practice for a period of five years is upheld and restored. Accordingly, the
order of the Bar Council of India, only to the extent of enhancing the
punishment, jg set aside. No order as to the costs.

The Bar Council of India, by its order under appeal, directed notices to
be issued to Shri Rajesh Jain & Shri Anil Sharma, Advocates, respectively, B
for initiating proceedings for professional misconduct and for enhancement
of punishment. During the course of hearing we had enquired from the
learned counsel for the parties as to what was the status of such proceedings.
We were told that the proceedings were lying where they were presumably
because the records of the State E\ar Council and the Bar Council of India C
were requisitioned here. The records shall be sent back and the proceedings,
directed to be i11itiated, shall now be commenced without any further loss of
time. We, however, express no opinion regarding that aspect of the matter at
this stage.

B.S. Appeal partly allowed.

\