grossly improper conduct in the discharge of his professional duty within Section 13(b) of the Legal Practitioners Act - Bir Kishore Roy Vs Emperor

                                                         In the Patna High Court

Bir Kishore Roy

Vs.

Emperor

Date:on 8 May, 1919
Equivalent citations: 52 Ind Cas 599
Author: D Miller
Bench: D Miller, Coutts

JUDGMENT
Dawson Miller, C.J.

1. This is a petition on behalf of Bir Kisbore Rai, a Pleader practising at Puri, in the Courts subordinate to the District Court of Cuttack, praying for leave to appeal to His Majesty in Council from an order passed by a Full Bench of this Court, under Section 13 of the Legal Practitioners Act, 1879, suspending him from practice for a period of six months from the 7th February 1918. The circumstances under which the petitioner was suspended appear from the judgment of the Court in the matter of Emperor v. Bir Kishore Rai 45 Ind. Cas. 684 : 3 P.L.J. 390 : 19 Cr.L.J. 636. There were three charges against him of accepting briefs for both sides. The first was a mortgage suit in which he appeared for the plaintiffs and signed the plaint and subsequently accepted a vakalatnama from the mortgagor, one of the defendants, and filed a written statement admitting the claim although other defendants, transferees, were contesting it. In the second case he appeared for a decree-holder in an execution case, and subsequently appeared for the judgment-debtor praying for an order to set aside the sale obtained in execution. In the third case he first appeared for the decree holder in execution, then appeared for an adverse claimant under Order XXI, Rule 58, in the same proceedings, and when that claim was dismissed and the property sold, finally appeared for the judgment-debtor seeking to set aside the sale. This Court found that this was grossly improper conduct in the discharge of his professional duty within Section 13(b) of the Legal Practitioners Act and suspended him accordingly.

2. We are now asked to grant a certificate that the case is a fit one for appeal to His Majesty in Council.

3. A preliminary objection has been raised that the Court has no jurisdiction to grant leave to appeal in such a case as the present, as no appeal lies unless their Lordships should decide for special reasons to admit it.

4. There is no provision in the Legal Practitioners Act conferring a right of appeal from an order passed by the High Court under Section
13. It is contended, however, that under Clause 31 of the Letters Patent by which this Court is constituted an appeal lies to His Majesty in Council. That clause provides that an appeal shall lie to His Majesty in Council in any matter not being of criminal jurisdiction (inter alia) any final order made in the exercise of original jurisdiction not coming under the operation of Clause 10. Admittedly, the case is not covered by Clause 10, which provides for appeals to the High Court itself from the decision of a Single Judge, or of two or more Judges where they are equally divided in opinion. There is a proviso to Clause 31 that the sum or matter at issue shall be of the amount or value of not less than Rs. 10,000, or that the judgment, decree, or order appealed from shall involve a claim, demand or question respecting property of the like amount or value, and an appeal is also allowed.
From any other final judgment, decree, or order made on appeal or otherwise as aforesaid when the said High Court declares that the case is a fit one for appeal.

5. The words or otherwise as aforesaid" clearly refer to judgments, decrees, or orders passed in the exercise of original jurisdiction not being criminal jurisdiction or covered by Clause 10.

6. Clauses 9 to 27 of the Letters Patent deal with the different clauses of jurisdiction which are conferred on the High Court. They are civil, criminal, admiralty, testamentary, and intestate and matrimonial jurisdiction, appellate and original. The next three clauses deal with procedure, and Clauses 31 to 34 deal with appeals to the Privy Council. In my opinion, the clauses dealing with the right of appeal to His Majesty in Council were meant to be con-fined to the different clauses of jurisdiction above enumerated and not to the administrative or disciplinary powers conferred on the Court by earlier clauses in the Letters Patent or by Statute. The use of the word "jurisdiction" in Clause 31 clearly seems to indicate that the appeals referred to are appeals from judgments, decrees, and orders passed in the exercise of one or other of the clauses of jurisdiction conferred by Clauses 9 to 27 where the word jurisdiction is used. In the clauses conferring administrative and disciplinary powers the word jurisdiction is nowhere need to describe such powers. In fact, the powers of it moving or suspending from practice granted by Clause 8 of the Letters Patent are confined to the oases of Advocates, Vakils, and Attorneys. The like power in the case of Pleaders is conferred only by Section 13 of the Legal Practitioners Act, and is not a power referred to in the Letters Patent at all. It has been held, however, by the High Court at Bombay that the right of appeal to His Majesty in Council granted by Clause 39 of the Letters Patent of that High Court (corresponding to Clause 31 in those of this Court) did not apply to orders passed suspending a Vakil in the exercise of the disciplinary powers granted to that Court similar to those contained in the present Clause 8. [See G.S.D. v. Government Header 32 B. 106 : 10 Bom L.R. 21]. It was also held by the Supreme Court of Bombay in Morgan v. Leech 2 M.I.A. 428 : 3 Moo. P.C. 368 : 1 Sar. P.C.J. 215 : 18 E.R. 362 in 1841 that the Charter granting an appeal from a "judgment or determination" did rot apply to a rule of the Court refusing to strike a person off the rolls. Matters of this nature have generally been held to be the subject of special leave. In Re: James Minchin 4 M.I.A. 220 : 6 Moo. P.C. 43 : 18 E.R. 683 was a case where the Supreme Court of Madras made an order dismissing the Master of that Court from his office for alleged misconduct. On appeal to Her Majesty in Council it was pointed out by their Lordships of the Judicial Committee that there was no right of appeal under the Charter, and that the order was not made in the course of a judicial proceeding. The clause in the Charter in question was as follows:
And it is our further will and pleasure and we do direct establish and ordain that if any person or persons shall find him, her or themselves aggrieved by any judgment or determination of the paid Supreme Court of Judicature at Madras in any case 'whatsoever it shall be lawful for him, her or them to appeal to us our heirs or successors in our or their Privy Council in such manner and under such restrictions and qualifications as are hereinafter mentioned, that is to say, in all judgments and determinations made by the Supreme Court of Judicature at Madras in any civil cause the party or parties against whom or to whose immediate prejudice the said... determination shall be or tend may by his or their humble petition to be preferred for that purpose to the said Court pray leave to appeal to us our heirs or successors in our or their Privy Council stating in such petition the cause or causes of such appeal.

7. Special leave was subsequently granted, and the appeal was heard on the merits. The words "in any civil cause" in the Charter quoted do not appear to me to be less comprehensive than the words in Clause 31 of this Court's Letters Patent which restrict appeals to judgments, decrees or orders passed in the exercise of appellate or original jurisdiction, such jurisdiction having already been defined in the preceding clauses, the only possible class which might apply to the present case being that described as civil jurisdiction. In Safford and Wheeler's Privy Council Practice, at page 789, the practice relating to this class of cases is referred to as the subject of special leave, and there can be little doubt that they have been so treated by the Judicial Committee for a considerable period. The judgment of the Bombay High Court in the case of G.S.D. v. Government Pleader 32 B. 106 : 10 Bom L.R. 21, above mentioned, refers to three earlier oases where the High Courts of Calcutta and Allahabad appeared to have granted leave, but, as pointed out in that judgment, those cases are of doubtful authority. In one of them, Parbati Charan Chatterji, In the matter of 17 A. 498 (P.C.) : 22 I.A. 193 : 6 Sar. P.C.J. 635 : 8 Ind. Dec. (N.S.) 644, it does not appear from the report whether leave was granted and in another [Sashi Bhusan Sarbadhicary. In the matter of 34 I.A. 41 : 4 A.L.J. 34 : 9 Bom. L.R. 9 (P.C.) : 17 M.L.J. 74 : 11 C.W.N. 273: 5 C.I.J. 130 : 2 M.I.T. 1 : 29 A. 95 : 5 Cr.L.J. 152] special leave was obtained.

8. In my opinion this petition should be refused.
Coutts, J.

9. I agree.