Case Law

JOHN D'SOUZA Vs. EDWARD ANI (AIR 1994 SC 975)

Background
In this case the respondent Edward Ani lodged the complaint with the Karnataka
State Bar Council alleging that the appellant with whom the will executed by his mother in
law Mrs. Mary Raymond was entrusted with safe custody refuse to return that will in spite of
two letters demanding to hand over the will.
Fact
The appellant who is an Advocate in Bangalore practising since 1942 was
proceeded against for professional misconduct on the basis of a complaint dated
7th November, 1986 lodged by the respondent, Mr. Edward Ani with the
Karnataka State Bar Council (Bangalore) under Section 35 of the Advocates Act
alleging that the appellant with whom a Will dated 1.7.1968 executed by his
mother-in-law, Mrs. Mary Raymond was entrusted for safe custody against
receipt dated 5th July, 1968 bearing serial no. 576 in his register of Wills refused
to return that Will in spite of two letters dated 4.1.1982 and 15.4.1986
demanding the appellant to hand over the Will kept in his custody and that the
appellant thereby has committed professional misconduct.
Mr. N.E. Raymond and his wife, Mrs. Mary Raymond were the clients of the
appellant. Mrs. Mary Raymond during her life time got her Will drafted by the
appellant and entrusted the same after execution with the appellant in respect of
which the appellant had given a receipt dated 5.7.1968 vide Ex. P.l. The fact that
the Will has been deposited with the appellant is supported by an entry in the
register of Wills maintained by the appellant. The executrix had appointed her
husband as the executor. Her husband, N.E. Raymond died in the year 1974. Mrs.
Mary Raymond changed her lawyer, the appellant herein and engaged one Mr.
George Dacosta as her advocate. According to the respondent, who is none other
than the son-in-law of Mrs. Mary Raymond and who claims to be the legal
representative of her estate that when Mr. George Dacosta requested the
appellant in 1978 to let him have his client's Will, the appellant denied having it.
Thereafter, Mrs. Mary Raymond was obliged to make another Will prepared by Mr.
George DaCosta on 24.6.78.
It is the case of the respondent that he wrote two letters to the appellant of
which one dated 4th January 1982 was sent on behalf of Mrs. Mary Raymond under
Certificate of Posting from Manchester (U .K.) marked as Ex. P.6 and. another letter dated
15th April 1986 by himself under Registered post with A/D marked as Ex. P .8. Both the
letters were addressed to the appellant requesting him to return the Will dated 1.7.68. But
the appellant did not reply to both the letters and kept conspicuous silence.
The second will executed in 1978 was probated on 21.2.1984 after the
death of Mrs. Mary Raymond on 29.10.1983.
On being aggrieved at the conduct of the appellant in not replying to his
letters and returning the Will kept in his custody, the respondent tiled a
complaint dated 7.11.1986 before the Karnataka Bar Council. By a resolution No.
110 of 1987 on 12.7.1987, the State Council rejected that complaint holding that there was
no prima facie case made out. The respondent preferred a revision before the Bar
Council of India which by its Order dated W.11.1988 set aside the Order of the
State Bar Council .. and allowed the revision holding that there existed prime
facie case of misconduct against the respondent (Advocate) and remitted the
matter to the Disciplinary Committee of the State Council.
Pursuant to the order of the Bar Council of India, the parties appeared before the
Disciplinary Committee of the State Bar Council The appellant filed his reply on 3.7.1989 to
which the respondent filed his A rejoinder on 12.8.1989. The Disciplinary Committee of the
State Bar Council by its order dated 7.6.1990 again held that the respondent was not guilty
of professional or other misconduct within the meaning of section 35 of the Advocates Act,
1961 as alleged by the appellant.
The Disciplinary Committee further suspended the appellant herein from practice for a
period of one year.
The appellant filed a stay petition No. 24/1993 under Section 14(2) of the Advocates
Act before the Disciplinary Committee of the Bar Council of India praying to stay the
operation of its order dated 4.6.1993 suspending him from practice, so as to enable him to
prefer an appeal before this Court. The Disciplinary Committee of the Bar Council of India
vide its order dated 23.6.1993 suspended the impugned order for one month from the date
of communication of the order.
The present appeal has been preferred by the appellant along with an application for
stay. When the matter was mentioned on 20. 7.193, this Court stayed the operation of the
impugned Order.
Mr. Ram Jethamalani, the learned senior counsel appearing for the appellant after
taking us through the relevant documents assailed the impugned findings contending that
the respondent has not substantiated the allegations that Mr. DaCosta requested the
appellant to let him have the Will of Mrs. Mary Raymond entrusted to him and that the
appellant denied of having it. On the other hand, the letter dated 1.5.1990 written by Mr.
George Dacosta to the Chairman, Disciplinary Committee of Karnataka Bar Council stating,
'I should like to clarify my own position and to emphasize and state very clearly that at no
time did I make any request of John D'Souza for the return of her 1968 Will nor did she
require it. There was, therefore, no question arising for Mr. John D'Souza having denied
being in possession of it. Mr. John D'Souza made no such denial ........... " unambiguously
falsifies the allegations of the respondent.
According to Mr. Jethamalani, the Will in question had been revoked and returned on
13.1.1982 presumably to Mrs. Mary Raymond who was then alive. That fact is supported. by
an endorsement made by the appellant's wife in the register of Wills and that even
assuming that the Will had not been returned, the appellant cannot be said to have
committed any breach of trust by retaining the revoked will which after its revocation had
become a mere scrap-paper; that the appellant cannot even by imagination said to have
entertained any dishonesty or oblique motive or gained any pecuniary profit by keeping the
revoked Will which had become res nullius and indisputably was a worthless paper having
no value.
In passing, Mr. Jethamalani stated that his client though admits of having received
the second letter (Ex. P-8) disputes the demand of Will by his alleged first letter dated
4.1.1982 and adds that the respondent has not proved the charges by examining Mr.
DaCosta.
The respondent appearing in person took much pains to sustain the findings of the
Disciplinary Committee of the Bar Council of India submitting inter-alia, that the appellant
who kept the Will in his custody was in the nature of a Trustee and as such he was entitled
to return the Will on demand and that the question of oblique motive or private gain has no
relevance. As neither the testatrix, Mrs. Mary Raymond nor the respondent being the legal
representative of the estate of the testatrix had abandoned the Will which was their
property, it cannot be said that Will had become res nullius. He asserts that the appellant
should have received the first letter of at least deemed to have received that letter (Ex.P-6)
which had been posted from Manchester (U.K.) Under Certificate of Posting (Ex. P-6A).
According to the respondent, the facts and circumstances of the case have amply
proved that the appellant had patently violated the relationship of the client and the
attorney created under law and betrayed the trust and confidence reposed by the
respondent in him. Both parties in support of their respective plea cited certain decisions
which we do not recapitulate here as we have decided to dispose of the matter purely on
the facts of the case.
However, it may be mentioned that Mr. Ram Jethamalani in his reply has given up the
argument that the document had become res nullius but reiterated his stand on the other
grounds.
Though the State Bar Council has found that the conduct of the appell
ant has not amounted to "misconduct much less a professional misconduct to punish the
respondent' and that 'he has not proved any 'Mens Rea" on the part of the appellant in
withholding the Will and given too much emphasis on the point of delay and the strained
relationship between the parties, observed :
 'However, we hope the respondent will be hereafter careful in dealing with this type
of matters.'
The Disciplinary Committee of the Bar Council of India after examining the matter in
detail disapproved the findings of the State Bar Council holding thus:
"The Disciplinary Committee of the State Bar Council gave too much emphasis on the
point of delay in filing the complaint. It also -' referred to some strained relations between
the parties. We are not inclined to agree with these findings. A mere delay or strained
relations between the parties per-se would not make a complaint false. These are the points
which should put us on grounds while appreciating the contentions raised on behalf of
either side. But in a case in which -most of the facts are admitted there is little to do except
holding that non return of the property of the complainant does not amount to professional
misconduct on the part of the Advocate. The respondent tried to submit that" Will had been
returned but no convincing evidence to that effect was produced.'
On the basis of the above findings, the impugned Order was passed. The fact that Mr.
George DaCosta requested the appellant to hand over the Will cannot be said to be an
after-thought and invented only at the time of filing the complaint. Even in Ex. P- 6, it is
mentioned that 'Mr. George DaCosta requested the appellant to hand over the Will of Mrs.
Mary Raymond prepared in 1968 and held in his safe custody and that it was understood
that the appellant denied that the Will was in his custody'. In the second letter dated
15.4.1986 marked as Ex.P-8 which has been admittedly received by the appellant, the facts
of demand made by Mr. Dacosta to return the Will and the appellant having denied of it are
made mention of. In addition, the respondent has stated that he wrote a letter on 4.1.1982
to which there was no reply. The only document on which the appellant attempts to
substantiate his case that there was no such demand as well as denial by him is the letter
dated 1.5.1990 sent by Mr. DaCosta to the State Bar Council. This letter has been sent only
after the proceedings before the State Bar Council had been completed but, of course,
before the Order was passed. However, the Order of the State Bar Council did not have any
reference to this letter, obviously for the reason that this document was not produced
before the proceedings were over. Though Mr. Jethamalani has insisted that this letter was
filed only on consent, the very fact that the letter did not come into existence earlier to
1.5.1990 and that Mr. Dacosta was not examined, demands not to place much reliance on
this letter, especially in the teeth of the averments found in Ex. P-6 and Ex. P-8. As pointed
out by the Bar Council of India, there was no convincing evidence that the appellant had
returned the Will. As pleaded by the respondent, the Will though revoked was the property
of Mrs. Mary Raymond and on her death had become his property and that the said
document was not abandoned by either of them.
It is disheartening to note that the documentary evidence and the circumstances
wearing the case leave an irresistible inference that the entry dated.13.1.1982 in the
register of Wills should have been manipulated as if the document had been returned.
No doubt, in a disciplinary proceeding of this nature, the rule is that the charging
party has the burden of proving the charge of misconduct of the respondent. On an overall
evaluation of the facts and circumstances of the case we hold that the respondent has
proved that the appellant had not returned the Will. It has to be remembered, in this
connection, that his earlier stand was that he did not have the Will. He changed the position
later and came out the case that he had returned it in 1982 and for this purpose he relied
upon an endorsement made by his wife in his register of documents. We are left with the
irresistible conclusion, in the circumstances, that he had not returned the Will though
demands were made first by the testatrix, then by her new lawyer and by the respondent
who was also holding the power of attorney from the testatrix when he wrote the first letter
and was the executor appointed under the second Will. The conduct of the appellant in not
returning the Will even on demand is unworthy of an advocate belonging to a noble
profession. The appellant has no right to withhold the Will. On the other hand, he was
bound in duty to return the said will when demanded because the instrument was entrusted
to his custody by the testatrix, Mrs. Mary Raymond only on trust.
Under these circumstances, we do not find any reason much less compelling reason
to interfere with the impugned Order of the Disciplinary Committee of the Bar Council of
India.
 The Appeal is accordingly dismissed, and the stay granted by this Court shall
vacated. No. costs.
Appeal dismissed.
Issue

Decision
The Supreme Court held that the advocate has committed breach of his professional duty
and found him guilty of profession misconduct.
Reason

Law Provision
Advocates Act 1961 Section 35 – Professional Misconduct

Referred Case
NA

Critical / Suggestion by Court

Principle

Case Law
JOHN D'SOUZA Vs. EDWARD ANI (AIR 1994 SC 975)
Background
In this case the respondent Edward Ani lodged the complaint with the Karnataka State Bar
Council alleging that the appellant with whom the will executed by his mother in law Mrs. Mary
Raymond was entrusted with safe custody refuse to return that will in spite of two letters demanding to
hand over the will.
Facts
The appellant who is an Advocate in Bangalore, was proceeded against for professional
misconduct on the basis of a complaint lodged by the respondent, Mr. Edward Ani with the Karnataka
State Bar Council (Bangalore) under Section 35 of the Advocates Act 1971 alleging that the appellant
with whom a Will executed by his mother-in-law, Mrs. Mary Raymond was entrusted for safe custody
against receipt in his register of Wills refused to return that Will in spite of two letters demanding the
appellant to hand over the Will kept in his custody and that the appellant thereby has committed
professional misconduct.
The rule is that the charging party has the burden of proving the charge of misconduct of the
respondent. On an overall evaluation of the facts and circumstances of the case SC hold that the
respondent has proved that the appellant had not returned the will. It has to be remembered, in this
connection, that his earlier stand was that he did not have the Will. He changed the position later and
come out with the case that he ad returned it in 1982 and for this purpose he relied upon an
endorsement made by his wife in his register of documents. SC left with the irresistible conclusion, in the
circumstances, that he had not returned the will though demands were made first by the testatrix, then
by her new lawyer and by the respondent who was also holding the power of attorney from the testatrix
when he wrote the first letter and was the executor appointed under the second will. The conduct of
appellant in not returning the Will even on demand is unworthy of an advocate belonging to a noble
profession. The appellant has no right to withhold the Will. He bound to return the said Will when
demanded because the instrument was entrusted to his custody by the testatrix, Mrs. Mary Raymond
only on trust.
Issue
“Whether Professional Misconduct was happened by the Appellant (Advocate) or not.”
Decision
“The Supreme Court held that the advocate has committed breach of his professional duty and found
him guilty of profession misconduct. The appeal dismissed, and the stay granted by SC shall stand
vacated. No costs.”
Reasons
Documentary evidences and the circumstances bearing the case leave an irresistible inference the entry
in the register of Will have been manipulated, also the Appellant in his earlier stand that he did not have
the Will, later come out with the case that he had returned the will on 1982.
Law Provision
Advocates Act 1961 Section 35 – Professional Misconduct
Referred Case
NA
Critical / Suggestion by Court
The conduct of Appellant in not returning the Will even on demand is unworthy of an advocate
belonging to a noble profession. Appellant was bound to return the Will on demand by the Respondent.
Principle
Professional Misconduct was happened by the Appellant (Advocate).

Case Law
Vishram Singh Raghubanshi Vs. State of UP (AIR 2011 SC 2275)
Background
In this case there are two grounds – Appellant who is an Advocate questions in a loud voice by
threatening the witness, he was asked to cross-examine witness politely, Appellant reached on the dias
of the court and attempted to snatch papers of statement from Presiding Officer and uttered abusive
language.
In second ground the Appellant appeared in the court of different dates on behalf of accused
person. Om Prakash presented before court in a fake name of Sri Ram Krishna who was wanted in this
case.
Facts

Issue
“Whether the Appellant (Advocate) has done the criminal contempt in the court proceedings or not.”
Decision
High Court
Supreme Court
“The Supreme Court held that
Reasons
Documentary evidences and the circumstances bearing the case leave an irresistible inference the entry
in the register of Will have been manipulated, also the Appellant in his earlier stand that he did not have
the Will, later come out with the case that he had returned the will on 1982.
Law Provision
Section 2(c) of the contempt of Court Act 1971 – Criminal Contempt.
Referred Case
Ishwar Chand Jain v. High Court of Punjab and Haryana (AIR 1988 SC 1395)
Critical / Suggestion by Court
No litigant, far less an advocate, has any right to take the law in his own hands. The act of the contemnor
to which the second chare relates, also amounts to grave criminal contempt.
Principle
Appellant (Advocate) has done the criminal contempt in the court proceedings.

Case Law
Vijay Singh Vs. Murarilal (AIR 1979 SC 1719)
Background

Facts

Issue
“Whether the Appellant (Advocate) on its roll has been guilty of professional or other misconduct in the
court proceedings or not.”
Decision
Supreme Court
“The Supreme Court held that
Reasons
Appellant managed certification of solvency of the surety improperly for an accused person, his client,
which was against professional conduct.
Law Provision
Section 35 of Advocate Acts 1961 – Advocate on its roll has been guilty of professional or other
misconduct.
Referred Case
Moti Ram v. State of MP (AIR 1978 SC 1594)
Critical / Suggestion by Court
The Supreme Court reprimanded the appellant and directed that the Appellant shall not violate the
norm of professional conduct and shall uphold the purity and probity of the profession generally.
Principle
Appellant (Advocate) on its roll has been guilty of professional and other misconduct in the court
proceedings.

Case Law
Ex.-Capt Harish Uppal Vs. Union of India (AIR 2003 SC 739)
Background

Facts
The petitioner was commissioned in the Indian Army (Artillery Regiment) in June 1965. He was in the unit which
was sent to Bangladesh in connection with military operations there in December 1971. In respect of certain
irregularities committed by the petitioner, a court-martial was held against him at which he was found guilty and he
was awarded the punishment of (a) dismissal and (b) two years' rigorous imprisonment. This punishment was
imposed after giving the petitioner an opportunity of pre-confirmation hearing as provided by Section 164(1) of the
Army Act, 1950.

The final orders imposing the said punishment were passed on 14-8-1972 and communicated to the petitioner
on 3-9-1972.

4.While the petitioner was in prison, his advocate sent a post-confirmation petition under Section 164(2) of the
Army Act to the Government of India. The petitioner says that he received the Government of India's reply on the
said representation only on 11-11-1983 (i.e. about 11 years later), whereas respondents' case is that the order
rejecting the said post-confirmation petition was duly communicated to his advocate, Shri Suresh Vohra on 18-9-
1973 vide Letter No. 7(17)/72/D(AG-1) dated 18-9-1973. It is also stated that the petitioner's elder brother filed Writ
Petition No. 456 of 1972 for issuance of a writ of habeas corpus in this Court seeking the release of the petitioner.

The writ petition was dismissed by this Court on 27-11-1972.

In 1983, the petitioner approached this Court by way of another writ petition being Writ Petition No. 12590 of 1983,
which was dismissed in limine directing the Government of India to communicate its orders upon the petitioner's
post- confirmation petition, if not already communicated. The petitioner says that it was only thereafter that he
received the orders of the Government upon his post-confirmation petition. He then approached the Delhi High
Court by way of Writ Petition No. 827 of 1984 which has been dismisseed summarily as stated hereinbefore.
The Apex Court while dealing with the case of Ex- Capt. Harish Uppal v. Union of India
and Anr., AIR 2003 Supreme Court 739 while referred to the above decision, in para
31,32,33, 34 and 36 observed-
"31. It must also be remembered that an Advocate is an officer of the Court and enjoys
special status in society. Advocates have obligations and duties to ensure smooth
functioning of the Court.... The principles is that those who have duties to discharge in
a Court of justice are protected by the law and are shielded by the law to discharge
those duties, the advocates in return have duty to protect the Courts....
32. It was expected that having known the well-settled law and having been that
repeated strikes and boycotts have shaken the confidence of the public in the legal
profession and affected administration of justice, there would be self regulation. The
above mentioned interim order was passed in the hope that with self restraint and self
regulation the lawyers would retrieve their profession from lost social respect. The
hope has not. fructified. Unfortunately strikes and boycott calls are becoming a
frequent spectacle.,,, ,,,,,,The judicial system is being held to ransom. Administration
of law and justice is threatened. The rule of law is undermined.
33. It is held that submission made on behalf of Bar Councils of U.P. merely need to be
stated to be rejected. ... Bar Council of India is enjoined with the duty of laying down
standard of professional conduct and etiquette for advocates. This would mean that
the Bar Council of India ensures that Advocates do not behave in unprofessional and
unbecoming manner, Section 48A gives a right to Bar Council of India to give
directions to State Bar Councils. The Bar Associations may be separate bodies but all
Advocates who are members of such Association are under disciplinary jurisdiction of
the Bar Councils and thus the Bar Councils can always control their conduct ...
34. In the case of Abhay Prakash Sahay Lalan v. High Court of Judicature at Patna , it
has been held that Section 34(1) of the Advocates Act empowers High Courts to frame
rules laying down conditions subject to which an Advocate shall be permitted to
practice in the High Court and Courts subordinate thereto. It has been held that the
power under Section 34 of the Advocates Act is similar to the power under Article 145
of the Constitution of India. It is held that other Sections of the Advocates Act cannot
be read in a manner which would render Section 34 ineffective."
36. It must be noted that Courts are not powerless or helpless. Section 38 of the
Advocates Act provides that even in disciplinary matters the final Appellate Authority
is the Supreme Court. Thus even if the Bar Councils do not rise to the occasion and
perform their duties by taking disciplinary action on a complaint from a client against
an advocate for non-appearance by reason of a call for strike or boycott, on an Appeal
the Supreme Court can and will,, apart from this, as set out in Romans Services' case,
every Court now should and must mulct. Advocates who hold Vakalats but still refrain
from attending Courts in pursuance of a strike call with costs,. Such costs would be in
addition to the damages which the Advocate may have to pay for the loss suffered by
his client by reason of his non-appearance.

Issue
“Whether the Appellant (Advocate) on its roll has been guilty of professional or other misconduct in the
court proceedings or not.”
Decision
Supreme Court
“The Supreme Court held that
Reasons
Appellant managed certification of solvency of the surety improperly for an accused person, his client,
which was against professional conduct.
Law Provision
Section 35 of Advocate Acts 1961 – Advocate on its roll has been guilty of professional or other
misconduct.
Referred Case
Moti Ram v. State of MP (AIR 1978 SC 1594)
Critical / Suggestion by Court
The Supreme Court reprimanded the appellant and directed that the Appellant shall not violate the
norm of professional conduct and shall uphold the purity and probity of the profession generally.
Principle
Appellant (Advocate) on its roll has been guilty of professional and other misconduct in the court
proceedings.

?:

Case Law
Vishwanath Swami Vs. Bar Council of India (AIR 2013 SC 3589)
Background
The petitioner, who has filed this writ petition in public interest is filed in the background of the call
for boycott of Courts given, on the basis of a resolution and the subsequent boycott of Courts for a
few days thereafter particularly in Bangalore.
Facts
The petitioner, with reference to the case of Harish Uppal, has filed this writ petition in public
interest in the background of the call for boycott of Courts given, on the basis of a resolution and the
subsequent boycott of Courts for a few days thereafter particularly in Bangalore, the matter has not
been considered on the aforesaid factual background but in the context of the directions issued by
the Hon'ble Supreme Court in Harish Uppal and Section 34 of the Act.
In the petitions before the Hon'ble Supreme Court, a declaration was sought that such strikes and/or
calls for boycotts are illegal. The Constitution Bench of the Apex Court heard the matter.
Issue
“Whether the lawyers have a right to strike and/or give a call for boycott of Courts”.
Decision
Supreme Court
“The Supreme Court held that lawyers have no right to go on strike or give a call for boycott, not
even on a token strike. The protest, if any is required, can only be by giving press statements, TV
interviews, carrying out of court premises banners and/or placards, wearing black or white or any
colour armbands, peaceful protest marches outside and away from court premises, going on
dharnas or relay fasts etc. It is held that lawyers holding vakalats on behalf of their clients cannot
not attend courts in pursuance of a call for strike or boycott. All lawyer can be visited with
any adverse consequences by the Association or the Council and no threat or coercion of any nature
including that of expulsion can be held out. It is held that no Bar Council or Bar Association can
permit calling of a meeting for purposes of considering a call for strike or boycott and requisition,
if any, for such meeting must be ignored. It is held that only in the rarest of rare cases where the
dignity, integrity and independence of the Bar and/or the Bench are at stake, courts may ignore
(turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified
that it will be for the court to decide whether or not the issue involves dignity or integrity or
independency of the Bar and/or the Bench. Therefore, in such cases the President of the Bar must
first consult the Chief Justice or the District Judge before advocates decide to absent themselves
from court. The decision of the Chief Justice or the District Judge would be final and have to be
abided by the Bar. It is held that courts are under no obligation to adjourn matters because
lawyers are on strike. On the contrary, it is the duty of all courts to go on with matters on their
boards even in the absence of lawyers. It is held that if a lawyer, holding a vakalat of a client,
abstains from attending court due to a strike call, he shall be personally liable to pay costs which
shall be in addition to damages which he might have to pay his client for loss suffered by him.
Reasons
Petitions before the Hon'ble Supreme Court, that such strikes and/or calls for boycotts are illegal.
Law Provision
Section 34 of Advocate Acts 1961 –
Referred Case
Harish Uppal v. Union of India (AIR 2003 SC 739)
Principle
Lawyers have no right to go on strike or give a call for boycott, not even on a token strike.
Critical / Suggestion by Court
If a lawyer, holding a vakalat of a client, abstains from attending court due to a strike call, he shall be
personally liable to pay costs which shall be in addition to damages which he might have to pay his
client for loss suffered by him.