FIRST SHRI. Y.J.

YASASWY MEMORIAL MOOT COURT COMPITATION FOR THE STATE OF TELANGANA AND
ANDHRAPRADESH 2016

FIRST SHRI.N.J. YASASWY MEMORIAL MOOT COURT

COMPITATION FOR THE STATE OF TELANGANA AND ANDHRA

PRADESH 2016

RAM RAHIM &AJATHASHATRU

Vs.

KUMAR

ON SUBMISSION TO THE REGISTRY OF THE COURT

OF THE HON’BLE SUPREME COURT OF DELHI

MEMORIAL FOR THE PETITIONERS- Ram Rahim and AjathaShatru

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CAUSE TITLE
In the Hon’bleSupreme Court of Judicature-India

Original writ jurisdiction

(w.p.no. of 2016on)

In the matter of

RamRahim………………………………...Petitioner 1
AjathaShatru………………………………Petitioner 2

And
Kumar…………………………………….Respondent

Sd/-

Advocates for the Petitioner

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TABLE OF CONTENTS

Sno Content Page no

1. Index Of Authorities 3
2. Statement Of Jurisdiction 5
3. Statement Of Facts 6
4. Statement Of Issues 8
5. Grounds 9
6. Arguments In Advance 11
8. Prayer 19

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INDEX OF AUTHORITIES…

INDIAN CASES:

1. Section 2(1)(o) of Consumer Protection Act, 1986……………………………………….9

2. Haryana SEB v Dinesh Kumar,(1991)2 CPJ 38…………………………………………9
3. Kishore Lal v ESI Corp,(2007)4 SCC579:AIR2007 SC 1819(2007)2 CPJ 25…………9

4. State of UP v. UP State Law Officers Assn……………………………………………10

5. Nayakam v. Menon, AIR 1968 Ker. 213, Mathew, J.,………………………………..10

6.Sec2(g) of consumer protection act 1986……………………………………………….11

7.Sreenivasa General Traders v. State of Andhra Pradesh, AIR 1983 SC 1246: (1983)4 SEC
353…………………………………………………………………………………………12

8.BishambharDayal Chandra Mohan, v. State of Uttar Pradesh, AIR 1982 SC 33; P.P.
Enterprises v. Union of India, AIR 1 ……………………………………………………….12.
9.Sivani v. State of Maharashtra ,AIR 1995 SC 1770, at 1774 : (1995) 6 SCC 289982 SC 1016 :
(1982) 2 SCC 33. ……………………………………………………………………….12

10.InPrem's Judicial Dictionary, moral turpitude is defined……………………………13

11.Jordan v. DeGeorge 341 U.S.223 : 95 L ed.886, 289 U.S.422………………………13
12.Mangali v. Chakki Lal 1963 All.527 (528), see 1959 All 71; 1957 Punj.M 97.ere……….. 14

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STATEMENT OF JURISDICTION
WRIT PETITION U/ART 32 OF THE CONSTITUTION OF INDIA SEEKING
DIRECTIONS AGAINST THE RESPONDENTS.

To

The Hon’ble Chief Justice and his other companion Justices of the Hon’ble Supreme Court of
India.

The humble petition of the petitioners.

Most respectfully showeth that:

1.The present writ petition is being filed in infringement of fundamental rights under Article 32
of constitution of India, relating to grave violations of the article 19 (1) g, where national
consumer forum in excess of its jurisdiction and passing to pay compensation to respondents, is
violation of fundamental rights of the petitioner herein.

2.The advocates are regulated by particularly Advocates Act, 1961 and regulating body is bar
council of India or state bar council who have established to check the professional conduct and
complaints against the advocate professionals. But NCDRC WITHOUT any jurisdiction or
empowered to pass orders in this regard violated the fundamental rights of the petitioners.

3.If the honourable supreme court immediately not interfered in this matter there is multiple
cases and litigations being filed throughout the country in different consumer forums against
advocates as more than 2000 cases were filed after the decision of the national consumer forum,
hence if this honourable court urgently invoke its discretionary power and pass such appropriate
order or writ to stop legal ambiguity.

The petitioners have not approached honourable court or any other court for similar reliefs.

Petitioner 1

Petitioner 2

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STATEMENT OF FACTS

1. Kumar resident of Devanahalli owns a 10 acre land under survey number 10/5. Before
Civil Judge (Jr.Dn) he filed a suit for declaration and injunction that he is absolute owner
of the land which was in dispute with Neeraj.
2. Neeraj appeared the court upon receiving the summons and also filed a counter claim
through his advocate.
3. The suit was decreed in favour of Kumar restraining Neeraj from peaceful enjoyment of
the said 10acers land.
4. Aggrieved by this, Neeraj filed regular appeal before First Appellate Court against
Judgment and decree in O.s.239/2010.
5. Kumar engaged Mr. Ram Rahim, famous lawyer in Devanahalli to represent his case
before First Appellate court and paid fifty thousand rupees as initial payment.
6. When appeal was posted for hearing, Advocate representing Neeraj completed his side
but Ram Rahim; Advocate of Kumar did not turn up. Instead he sought adjournments.
Same was the situation for final hearing too.
7. Appellate Court decreed the counter claim and also observed that court had no assistance
from advocate of Kumar in deciding the matter.
8. Kumar enquired his advocate for his absence but could not get a proper answer. But for
filing the second appeal, he suggested Adv. AjathaShatru.
9. Kumar paid one lakh rupees as fees for the second appeal and this advocate took his own
time in filing the appeal. By the time second appeal was filed, the limitation period was
over. An application for condonation of delay was filed along with second appeal. The
delay was not condoned by the court and appeal was dismissed. Further, Advocate
Ajathashatru advised Kumar to approach Supreme Court.
10. The land is in the possession of Neeraj after the first appellate court had decreed the
possession in his favour.

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11. Having lost the means of livelihood for him and his family, Kumar, approached National
Consumer Dispute Redressal Commission(NCDRC) at New Delhi for Deficiency of
service and claimed one crore rupees as compensation.
12. Both advocates appeared and argued that :
(i) Advocates are immune from any legal action under consumer protection act 1986,
as Kumar is not a consumer.
(ii) Their relationship as client and advocate is a ‘contract of personal service’ not
‘contract for personal service’
(iii) They are merely agents of Kumar in the court and court officers.
(iv) No legal action can be initiated for actions done in the course of judicial
proceeding.
(v) It is for the court to decide the case on its merits and no advocate can guarantee
the result.
13. NCDRC however allowed the claim of Mr. Kumar and found that there was deficiency in
service on the part of both advocates and ordered both for payment of one crore rupees as
compensation.
14. Aggrieved by the order both advocates approached the Supreme court of India
challenging the decision of NCDRC

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ANDHRAPRADESH 2016

STATEMENT OF ISSUES

1. Whether the Advocates fall within the provisions of the consumer protection act,
1986?

(i) Is the relation between a client and advocate a “contract of personal service” or
“contract for personal service”
(ii) In the present case, is there any deficiency of service evident?

2. Whether the award is in violation on of fundamental right to practice any profession,

or to carry on any occupation as contemplated under Article 19(1)(g) of the
constitution of India?

(i)Whether the Advocates’ right to practice is a fundamental right guaranteed by the

constitution of India?
(ii)What is the scope of BarCouncil of India in regulating the Profession of Advocacy?

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GROUNDS

1. Whether the Advocates fall within the provisions of the consumer protection act, 1986?

A lawyer cannot be brought under purview of Consumer protection; merely his services are
being paid. He is an agent of the concerned client. He acts as a court officer, as an agent of the
client and holds an office of dignity.

Order IV rule 1 of the civil Procedural Code reads “Every suit shall be instituted by
presenting to the Court or such officer as it appoints in this behalf…………..”

The nexus of an advocate, while dealing with a case, will be with the court, the client and also
his office bear a fiduciary relation to the public at large.

To fall within the ambit of Consumer Protection Act 1986, client and advocate relation must be
of consumer and service provider.

A person is a consumer of services if he satisfy the following criteria :

SERVICES ARE HIRED OR AVAILED OF - The term ‘hired’ has not been defined under
the Act. Its Dictionary meaning is - to procure the use of services at a price. Thus the term ‘hire’
has also been used in the sense of ‘avail’ or ‘use’. Accordingly it may be understood that
consumer means any person who avails or uses any service.

Example : A goes to a doctor to get himself treated for a frac-ture. Here A is hiring the services
of the doctor. Thus he is a consumer.

Examining the client and Advocate relation, though the service rendered is being paid, the scope
of services is not merely hiredoravailed.

When a client hires a lawyer, it is a unilateral contract executed by the client, giving authority to
the lawyer to appear and represent the matter on his behalf without any specific assurance or
undertaking.

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2. Whether the award is in violation on of fundamental right to practice any profession, or

to carry on any occupation as contemplated under Article 19(1)(g) of the constitution of
India?

The advocates are regulated by particularly Advocates Act, 1961 and regulating body is Bar
Council of India or state bar council which was established to check the professional conduct and
complaints against the advocate professionals. But NCDRC WITHOUT any jurisdiction or
empowered to pass orders in this regard violated the fundamental rights of the petitioners.

The award pronounced by NCDRC in this context, is violative of the freedom of professing the
profession of Advocacy, for this will discourage advocates in involving into the litigation. An
advocate is a agent of the client at the court, representing his cause for dispute. The cases are
adjudicated depending upon the merits of the same.

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ARGUMENT ADVANCED

Is the relation between a client and advocate a “contract of personal service” or “contract
for personal service”

1. Service, within the provisions of Consumer Protection Act 1986 service of any
description which is made available to potential users and includes the provisions of
facilities in connection with banking, finance, insurance, transport, processing, supply of
electrical or other energy, board or lodging or both, entertainment, amusement or
purveying news or other information but does not include the rendering of any service
free of charge or under the contract of personal service.1

2. Service would include all kinds of professional service, be it the routine service of a
barber or the technical services of a highly-qualified person.2

3. My submission is that advocate services fall in the term expression of “contract of

personal service”. The expression ‘contract of personal service’’ and ‘contract for
services’ ‘are two different category of services. A contract of service is an employment
and therefore outside the concept of consumer. A contract for service implies a contract
under which one party undertakes to render a service; the service provider is not subject
to detailed directions and control. He exercises professional or technical skill and uses his
own knowledge and direction. A contract of service of implies a relationship of master
and servant. It is excluded from the category of service to a consumer.3

4. My further submission is that an analyzing the definition of consumer, a consumer of

service is the one who avails services for the purpose of a person who purchases goods
and services for personal use.
5. A lawyer cannot be brought under purview of Consumer protection; merely his services
are being paid.

1
Section 2(1)(o) of consumer protection act 1986
2
Haryana SEB v Dinesh Kumar,(1991)2 CPJ 38
3
Kishore Lal v ESI Corp,(2007)4 SCC579:AIR2007 SC 1819(2007)2 CPJ 25.

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6. He is an agent of the concerned client. He acts as a court officer, as an agent of the client
and holds an office of dignity.
7. The lawyers are basically the officers of the court who had a duty to assist the court and
not to act as a mouthpiece of the client.
8. When a client hires a lawyer, it is a unilateral contract executed by the client, giving
authority to the lawyer to appear and represent the matter on his behalf without any
specific assurance or undertaking.
9. The relationship between a lawyer and his client, the lawyer is the agent and the client is
the principal.
10. "The relationship between the lawyer and his client is one of trust and confidence. The
client engages a lawyer for personal reasons and is at liberty to leave him also, for the
same reasons. He is under no obligation to give reasons for withdrawing his brief from
his lawyer. He is essentially an advisor to his client and is rightly called a Counsel in
some jurisdictions. Once acquainted with the facts of the case, it is the lawyer's discretion
to choose the facts and the points of law which lie would advance. Being a responsible
Officer of the Court and an important adjunct of the administration of justice, the lawyer
also owes a duty to the Court as well as to the opposite side."4
11. “Counsel has a tripartite relationship; one with the public, another with the Court and the
third with his client. That is a unique feature. Other professions or callings may include
one or two of these relationships but no other has the triple duty."5

12. The apex consumer court committed a grave error in law by encroaching upon the
jurisdiction of Bar Council, a statutory body entitled to handle complaint against advocates.

13. Bar Council, under Advocates Act 1961, is authorized to execute orders for regulation of the
profession namely advocacy along with conducting regulatory and disciplinary proceedings in
case of any misconduct, negligence, misappropriation of funds etc., by the Advocates.

14.The enactment suffices the purpose of regulating the profession of advocacy, for it is being
drafted keeping in view the uniqueness of profession.

4
State of UP v. UP State Law Officers Assn
5
Nayakam v. Menon, AIR 1968 Ker. 213, Mathew, J.,

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15. NCDRC therefore is not competent authority to adjudicate the professional negligence of
advocates and imposition of such penalty is violative of advocates’ basic right to practice.

 In the present case, is there any deficiency of service evident?

1. Analysing the definition of “deficiency in service” according to consumer protection act
1986, Section 2(g) “deficiency” means any fault, imperfection, shortcoming or
inadequacy in the quality, nature and manner of performance which is required to be
maintained by or under any law for the time being in force or has been undertaken to be
performed by a person in pursuance of a contract or otherwise in relation to any service;6
2. The deficiency in service cannot be alleged without attributing fault, imperfection,
shortcoming or inadequacy in the quality, nature and manner of performance which is
required to be performed by a person in pursuance of a contract or otherwise in relation to
any service.7

3. Observing the allegations on the advocate pertaining to deficiency of service, there is no

fault , imperfection shortcoming or inadequacy in the quality ,nature and manner of
performance of the advocates while filing the appeal of the respondent. After appeal is
filed, the question of law is decided by the court, counsel of the party concerned have a
lesser role to play. Mere absence to the court proceeding cannot be enumerated as
deficiency in rendering the services.
4. As such in the present case, there is no deficiency of service.
 What is the scope of Bar Council of India in regulating the Profession of Advocacy?

Law and its practice is a professional responsibility.

As envisaged by Justice Krishna Iyyer “Law is not a trade, not briefs, not
merchandise, and so the heaven of commercial competition should not vulgarize the
legal profession”

6
Sec2(g) of consumer protection act 1986.
7
M/S Interglobe Aviation Ltd vs N.Satchidanand

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The Indian Bar Councils Act, 1926 was passed to unify the various grades of legal
practice and to provide self-government to the Bars attached to various Courts. The Act
required that each High Court must constitute a Bar Council made up of the Advocate
General, four men nominated by the High Court of whom two should be Judges and ten
elected from among the advocates of the Bar. The duties of the Bar Council were to
decide all matters concerning legal education, qualification for enrolment, discipline and
control of the profession. It was favourable to the advocates as it gave them authority
previously held by the judiciary to regulate the membership and discipline of their
profession.

The Advocates Act, 1961 was a step to further this very initiative. As a result of the
Advocates Act, admission, practice, ethics, privileges, regulations, discipline and
improvement of the profession as well as law reform are now significantly in the hands of
the profession itself.
The Advocates Act 1961 aims at regulating the professional conduct of Advocates. It also
speaks at length through its provisions for constitution of disciplinary committees and
State Bar councils apart from the apex, Bar Council of India.

Section 36 of the Advocates Act 1961 speaks about Disciplinary powers of Bar Council
of India.—
(1) Where on receipt of a complaint or otherwise the Bar Council of India has
reason to believe that any advocate 3[***] whose name is not entered on any State roll
has been guilty of professional or other misconduct, it shall refer the case for disposal to
its disciplinary committee.
(2) Notwithstanding anything contained in this Chapter, the disciplinary committee of the
Bar Council of India may, 4[either of its own motion or on a report by a State Bar
Council or on an application made to it by any person interested], withdraw forinquiry

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before itself any proceedings for disciplinary action against any advocate pending before
the disciplinary committee of any State Bar Council and dispose of the same.
(3) The disciplinary committee of the Bar Council of India, in disposing of any case
under this section, shall observe, so far as may be, the procedure laid down in section 35,
the references to the Advocate-General in that section being construed as references to
the Attorney-General of India.
(4) In disposing of any proceedings under this section the disciplinary committee of the
Bar Council of India may make any order which the disciplinary committee of a State
Bar Council can make under sub-section (3) of section 35, and where anyproceedings
have been withdrawn for inquiry 5[before the disciplinary committee of the Bar Council
of India] the State Bar Council concerned shall give effect to any such order.

Widening the scope of Bar Council of India, it was held in Adv.P.Nagaraj vs Bar
Council Of Kerala theBar Council in its wider scope of supervision over the conduct of
Advocates in their professional duties comes across any instance of such misconduct it is
the duty of the Bar Council concerned to refer the matter to its Disciplinary Committee.8

Section 42 of the Advocates Act 1961 speaks of .Powers of disciplinary committee.

(1) The disciplinarycommittee of a Bar Council shall have the same powers as are vested in a
civil court under the Code of Civil Procedure, 1908 (5of 1908), in respect of the following
matters, namely:—

(a) summoning and enforcing the attendance of any person

and examining him on oath;

(b) requiring discovery and production of any documents;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copies thereof from any

8
Adv.P.Nagaraj vs Bar Council Of Kerala

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court or office;

(e) issuing commissions for the examination of witness or documents;

(f) any other matter which may be prescribed:

Provided that no such disciplinary committee shall have the right to require the attendance of—

(a) any presiding officer of a Court except with the previous sanction of the High Court to which
such court is subordinate;

(b) any officer of a revenue court except with the previous sanction of the State Government.

(2) All proceedings before a disciplinary committee of a Bar Council shall be deemed to be
judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code,
1860

(45 of 1860), and every such disciplinary committee shall be deemed to be a civil court for
the purposes of sections 480, 482and 485 of the Code of Criminal Procedure, 1898 (5 of 1898).

(3) For the purposes of exercising any of the powers conferred by sub-section (1), a disciplinary
committee may send to any civil court in the territories to which this Act extends, any summons

or other process, for the attendance of a witness or the production of a document required by the
committee or any commission which it desires to issue, and the civil court shall cause such
process to be served or such commission to be issued, as the case may be, and may enforce any
such process asif it were a process for attendance or production before itself.

42A. Powers of Bar Council of India and othercommittees.—

The provisions of section 42 shall, so far as maybe, apply in relation to the Bar Council of India,
the enrolment committee, the election committee, the legal aid committee, or any other
committee of a Bar Council as they, apply in relation to the disciplinary committee of a Bar
Council.

Upon analysis of aforementioned provisions, it can be conveniently said that the Bar council of
India is the competent authority to adjudicate the competence and misconduct of the Advocates.

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In the present case, the contention of respondent that there is deficiency in the service rendered ,
is reported to a wrong forum. Proper forum in the first instance will be the concerned Diciplinary
committee under the agies of State Bar Council. All proceedings before a disciplinary committee
of a Bar Council shall be deemed to be judicial proceedings within the meaning of sections 193
and 228 of the Indian Penal Code, 1860.

This forum is refered by the petitioners, for a proper adjudication of matters, which involve
technicalities which a forum like NCDRC is not competent enough to resolve.

Neither NCDRC bear a jurisdiction nor authority to adjudicate competence and service
deficiency of an advocate.

 Can negligence in rendering services by advocates, in this case be challenged?

1. The test which should ordinarily be applied and which should in most cases be
sufficient for judging whether a certain offence does or does not involve moral
turpitude appears to be

(i) whether the act leading to a conviction was such as could shock the moral conscience
of society in general,

(ii) whether the motive which led to the act was a base one and whether an account of the
act having been committed the perpetrator could be considered to be of a deprived
character or a person who was to be looked down upon by the society.9

9
In Prem's Judicial Dictionary, moral turpitude is defined

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2. The expression 'moral turpitude' is not defined anywhere. But it means anything done
contrary to justice, honesty, modesty or good morals.10
3. Negligence on the other hand may be mere or gross. Gross negligence involves moral
turpitude.
4. Error of judgment cannot be completely eliminated in all human affairs and mere
negligence may not necessarily show that the Advocate who was guilty of it can be
charged with misconduct, Negligence, error of judgment on the part of an Advocate
will not amount to professional misconduct.11
5. In dealing with matters of professional propriety, we cannot ignore the fact that the
profession of law is an honorable profession and it occupies a place of pride in the
liberal professions of the country.
6. In the instant case, we can find no negligence on the part of advocates either gross or
mere.
7. It is for the court to decide the case on its merits and no advocate can guarantee the
result.

10
Jordan v. DeGeorge 341 U.S.223 : 95 L ed.886, 289 U.S.422.
11
Mangali v. Chakki Lal 1963 All.527 (528), see 1959 All 71; 1957 Punj.M 97.ere

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PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsel for the
Petitioner humbly prays that:

1. The award passed by the NCDRC may be quashed for that being violative of the
professional freedom of Advocates.
2. And pass such order this Hon’ble court may deem fit in the interest of equity, justice and
good conscience.

And for this act of kindness, the counsel for the petitioner shall duty bound forever pray.

Sd/-

(Counsel for Petitioner)

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