CASE 45 (Negligence in Conducting Case) 14(3)

1987 IBR 488 D.C. Appeal No. 40/1986

G vs. M Shri M.L. Garg (Chairman) and

Shri R.S. Mahendra and Shri N.N.
Mathur (Members)
Judgement Dated 27th April, 1987
Complainant’s Contentions
• In order to stop her husband from getting
married a second time, the complainant secured
a temporary injunction. The lawsuit was
subsequently dismissed for lack of
prosecution.Her spouse took advantage of this
and remarried on February 25, 1985. As a result
of the negligence of theRespondent in
conducting the case, the Complainant is
subjected to severe loss.
Respondent’s Contentions
• Respondent sincerely admitted that the
dismissal of the lawsuit was due to his failure to
appear in court on the scheduled day. On the
specified date, he had to attend a relative's
wedding and had asked one of his coworkers to
fill in for him. The Complainant withdrew the
brief from the Respondent before he could
initiate an application for restoration.
Proceedings of the case
• In addition to providing no proof, no side led. The D.C. of the S.B.C.
determined the case solely based on the pleadings. It was determined
that while the Respondent was negligent in failing to file the
restoration application, he was not negligent in failing to prosecute the
case. As such he was held guilty of misconduct and was reprimanded
• The Complainant appealed to the Court of District and Sessions Judge,
expressing concern that her husband would remarry, and the
Respondent provided a certified copy of that application in the appeal.
The application was submitted in July 1985. This demonstrated the
falsity of the complainant's claim that her spouse had remarried on
May 2, 1985. To address the discrepancy, the Complainant did not
show up before the D.C. of the B.C.I. Hence, the D.C. of the B.C.I.
dismissed the Complainant's claim that the Respondent's negligence
allowed her spouse a chance to remarry.
• Furthermore, the D.C. of the B.C.I. found no
reason to doubt the Respondent's claim that the
Complainant had not given him the chance to
submit a restoration application, especially as
the claim had not been refuted by the
Complainant. Thus, it was determined that the
D.C. of the S.B.C.'s assertion that the
Respondent was negligent for failing to file the
restoration application was unfounded.
ORDER
• As a result, the appeal was accepted, and the
D.C. of the S.B.C.'s order and judgement were
overturned, vacating the conviction and
sentence. The Respondent was cleared of every
accusation brought against him.
PROVISIONS
• Professional liability for negligence is a cryptic branch of
the law relating to negligence. It exists on a
fundamentally different plane. There is a fine distinction
between professions and other occupations for the reason
that professionals operate in spheres where success
depends upon factors beyond the professional man’s
control.[1]

The position has come to be established that the

professional man owes to his client a duty in tort as well
as in contract to exercise reasonable care in giving advice
or performing services
• Section 35 in THE ADVOCATES ACT, 1961
• 35. Punishment of advocates for misconduct.—(1) Where on receipt of a
complaint or otherwise a State Bar Council has reason to believe that any
advocate on its roll has been guilty of professional or other misconduct, it
shall refer the case for disposal to its disciplinary committee. 1[(1A) The
State Bar Council may, either of its own motion or on application made to it
by any person interested, withdraw a proceeding pending before its
disciplinary committee and direct the inquiry to be made by any other
disciplinary committee of that State Bar Council.]
• (2) The disciplinary committee of a State Bar Council shall fix a date for the
hearing of the case and shall cause a notice thereof to be given to the
advocate concerned and to the Advocate-General of the State.
• (3) The disciplinary committee of a State Bar Council after giving the
advocate concerned and the Advocate-General an opportunity of being
heard, may make any of the following orders, namely:—
• (a) dismiss the complaint or, where the proceedings were initiated at the
instance of the State Bar Council, direct that the proceedings be filed;
• (b) reprimand the advocate;
• (c) suspend the advocate from practice for such period as it may deem fit;
• (d) remove the name of the advocate from the State roll of advocates.
• (4) Where an advocate is suspended from practice under clause (c) of sub-
section (3), he shall, during the period of suspension, be debarred from
practising in any court or before any authority or person in India.
• (5) Where any notice is issued to the Advocate-General under sub-section
(2), the Advocate-General may appear before the disciplinary committee of
the State Bar Council either in person or through any advocate appearing
on his behalf. 3[Explanation.—In this section, 4[section 37 and section 38],
the expressions “Advocate-General” and Advocate-General of the State”
shall, in relation to the Union territory of Delhi, mean the Additional
Solicitor General of India
CONCLUSION

• The role of attorneys in society is quite significant.

They are highly revered and respected in the society
because they are a part of the justice delivery system.
Every person has a clear code of conduct that must be
upheld by anyone who want to live in society. In
carrying out his or her professional duties, a lawyer
has obligations to their client, adversary, court,
society at large, and even themselves. To find a
balance and take a viewpoint that is righteous
requires a high level of probity and calmness,
especially when there are competing claims.