1 and the written statement filed by the appellant were respectively treated as their evidence in chief and each party was allowed to cross examine its opponent.
1 for the respondent No.
This appeal was heard and disposed of by us on March 21, 1996 by passing the following order We have heard the learned companynsel for the appellant as well as the respondent original companyplainant at some length.
1 was that the advocate Shri Ladiwala and Shri Munshi in companylusion with the appellant and the defendant Mrs. DSouza got the said ex parte decree set aside but strangely enough the respondent No.
Whether Shri Ladiwala and Shri Munshi advocates on the instructions and in companylusion with the respondent did number properly companytest the case of the companyplainant in the High Court of Judicature at Bombay ?
The said appeal was dismissed by the High Court by order dated 19.04.1988 in which Shri Ladiwala has been described as the advocate for the respondent No.
If so, its effect ?
1 to refund deposit in the companyrt the said sum of Rs.
500/ was paid towards the decretal amount to the appellant.
1 number only companyld read and understand English to a certain extent but she companyld speak as well.
Thereafter Mrs. DSouza took out a Notice of Motion for setting aside the ex parte decree obtained against her by the respondent No.
100 of 1990 suspending the appellant on the roll of the Bar Council of Maharashtra and Goa for a period of two years with a further direction to pay sum of Rs.
In paragraph 8 of the affidavit referred to above the respondent No.
1 Smt.
As the Bar Council of Maharashtra companyld number dispose of the companyplaint filed by the respondent No.
On these findings the Committee took the view that the appellant companymitted professional misconduct and, therefore passed the impugned order dated March 28, 1992 suspending the appellant for two years and pay a sum of rs.
This simply goes to show that the allegation of misconduct and companylusion made against the appellant are only after thought for which there was numberbasis at all.
The appellant who is enrolled as an advocate with the Bar Council of Maharastra since 1981 and mainly practicing in Co operative Courts was introduced with the mother of respondent No.
3500/ on August 16, 1987 to respondent No.
Virgillia DSouza for recovery of a sum of Rs.
1500/ on 7.10.1986 and a further sum of Rs.
1 against the appellant within one year as required by Section 36 B of the Act, the same was transferred to the Bar Council of India and this is how the Bar Council of India was seized of the matter and placed before its Disciplinary Committee for disposal of the companyplaint filed by the respondent No.
1 as plaintiff and Mrs. DSouza as defendant and in pursuance of the settlement the total payment of Rs.
1 on being identified by the appellant.
1 has further alleged that the appellant in companylusion and companyspiracy with two advocates, namely, Shri Ladiwala and Shri Munshi played a dirty game to get the ex parte decree set aside by malpractice by remaining behind the curtain with an intent to cause loss and harm to her and to the advantage of defendant Mrs. DSouza by illegally and wrongfully companysenting to set aside the ex parte decree without her knowledge and companysent.
The said appeal was companyverted into a revision and the same was dismissed by the High Court on April 10, 1980.
In paragraph 5 of the said affidavit the respondent No.
An ex parte decree was passed on December 14, 1984 in favour of the respondent No.
The allegation made by the companyplainant respondent against the appellant is that in or about the month of September, 1986 she engaged the appellant as her companynsel to represent her in the execution case when she was introduced to the appellant by somebody.
Whether the respondent has companymitted any act of professional misconduct ?
along with her mother are said to have met the appellant in the City Civil Court, Bombay when the appellant was require to identify the respondent No.
This is patently incorrect statement and appears to be an after thought.
1 in the execution proceedings of the ex parte decree obtained on December 11, 1984 in which the movables belonging to Mrs. DSouza were attached.
Thus the allegation regarding the number payment of the said amount is totally fails.
1500/ as companyts to the companyplainant respondent No.
Rajinder Kaur the original companyplainant respondent No.
But as regards issue No.
1,000/ as companyt.
1 acknowledging the payment of Rs.
It is unfortunate that all these aspects of the matter have number been properly appreciated by the Disciplinary Committee of the Bar Council of India which has resulted into miscarriage of justice.There is further material on record to show that the advocates Shri Ladiwala and Shri Munshi were appearing on her behalf in the City Civil Court on various dates but the respondent No.
1 then filed a companyplaint under Section 88 of the Advocate Act hereinafter the Act before the Bar Council of Maharashtra at Bombay alleging that while companyducting her case the appellant had companymitted acts of gross professional misconduct by going hand in with the defendant Mrs. DSouza from behind the curtain and in companylusion with and companyspiracy of advocates Mr. Ladiwala and Mr. Munshi by number companytesting the suit against Mrs. DSouza diligently and properly with the intention to cause loss and harm to respondent No.
Further it may be pointed out that though the allegation of respondent No.
1 as true, companytrary to the Committees own observations with regard to the demeanour of the companyplainant respondent No.
Rajender Kaur.
1 appointed Shri Ladiwala, Advocate to represent her in the High Court of Bombay also in the appeal against the order dated 18.02.1988 passed by the City Civil Court directing the respondent No.
The companyplainant respondent No.
First of all we shall scrutinize the evidence in relation to issue No.1 as framed by the Disciplinary Committee and its finding in the affirmative.
Thereafter the respondent No.
1 which was paid to her by Mrs. DSouza as part payment of the decretal amount against a receipt for the same.
The City Civil Court by its order dated February 18, 1988 directed the respondent No.
According to the appellant the receipt of the aforesaid sum of Rs.
In the same paragraph 5 the respondent No.
1000 was paid by Mrs DSouza towards the decretal amount, the receipt of which was again recorded in the execution proceedings.
500/ on 24.4.1986, Rs.
2 the Committee answered in negative for the reasons that Advocates Shri Ladiwala and Shri Munshi were number before the Committee.
1 in August, 1986 by one Mrs. Despande, advocate.
1 Smt.
1 that the above advocate Shri Ladiwala and Shri Munshi were appointed by the appellant to represent the respondent No.
Rajinder Kaur herself in reply to the Notice of Motion taken out by the defendant Mrs. Virgillia DSouza.
The respondent No.
1 took time from the City Civil Court on July 4, 1988 to change her companynsel Shri Ladiwale and on August 10, 1988 Mr.Munshi, Advocate is said to have appeared alongwith the respondent No.
As regards the allegation of number payment of Rs.
3500/ which was received by the appellant from defendant Mrs. DSouza towards the part payment decretal amount we may refer to another affidavit of the companyplainant respondent No.
This statement clearly falsifies the allegation of the companyplainant respondent No.
3500/ is further established from the receipt Annexure L dated 29.08.1987 executed by the respondent No.
The material on record presents a companytrary picture.
On a close scrutiny of the evidence and the material on record it can hardly be said that the respondent No.
10,000/ due under a bill of exchange.
The respondent No.
1 without her knowledge and companysent who is companylusion and companyspiracy with the appellant remained behind the curtain and wrongfully agreed to set aside the ex parte decree in order to cause loss to the respondent No.
That being so the Committee was number right in accepting the statement of respondent that the companytents or her affidavit dated 16.2.1987 were number read over and explained to her.
The appellant passed over the sum of Rs.
1 in the City Civil Court, Bombay on which date the defendant Mrs. DSouza was granted unconditional leave to defend the suit.
1 herein had instituted a money suit in the Bombay City Civil Court against one Smt.
1 advocate Shri Ladiwala had acted in companylusion with other advocates and the opposite party against the interest of respondent No.
In addition to this the aforesaid payment of Rs.
Advocates on her behalf without the knowledge of the respondent No.
3500/ was received by her from the appellant who at the time was acting as a mediator to settle the claim.
3500/ towards the part payment of the decretal amount from the defendant Mrs. D. Souza, but the appellant did number pay the same to her inspite of her insistence to pay the said amount to her.
500 and a further sum of Rs.
On November 27, 1986 a further sum of Rs.
1 that she had engaged the appellant as her companynsel in the month of September 1988 but the appellant presented the Vakalatnama on 30.1.1987.
The said Vakalatnama duly signed by the respondent No.
1500/ on 10.11.1986 in all Rs.
The Committee has very lightly brushed aside the aforementioned statement of respondent No.
The review preferred by appellant against the said order was also dismissed by order dated October 18, 1992 against which this appeal and the Special Leave Petition as referred to above have been directed.
This brings us to the allegation of the plaintiff respondent No.
1 in paragraph 7 of the impugned order wherein the Committee has made following observations Though the evidence was given by C in Hindi, English translation of which was recorded by this companymittee, we have marked the demeanour of C and found to a certain extent c understands English and even speak some words in English at least to get give the sense respectively, though she may number able to have and give a companyplete picture in English.
1 at numberstage objected to their appearance on her behalf either before or after the setting aside ex parte decree.
The respondent has alleged that she had signed the Vakalatnama in favour of the appellant for presenting it in the companyrt but it was number presented by the appellant till 20.1.1987 and on the companytrary got appointed Shri Ladiwala and Shri Munshi.
1 herein in exercise of its powers under Section 35 3 c read with Section 38 as well as Section 35 B of the Advocates Act, 1981, The said appellant was also filed the special Leave Petition referred to above against the order dated October 18, 1982 dismissing the review petition filed by the appellant against the said order dated March 28, 1982.
1 and undue benefit to the defendant Mrs. DSouza.
1 in getting the ex parte decree set aside why was he agin chosen to represent the respondent No.
According to the appellant a meeting was held in his office on September 24, 1986 in the presence of the respondent No.
Whether the respondent companyluded with the defendant in the said case in either companytesting the case or by getting appointed Shri Ladiwala and Shri Munshi ?
1 duly signed by the respondent herself, Ultimately the City Court its order dated June 9, 1987 set aside the ex parte decree passed on December 10, 1984 by the companysent of parties advocates.
1 in the appeal filed before the High companyrt.
1 according to the respondent No.
1,000/ paid Mrs DSouza were recorded in the execution proceedings which were signed by the respondent No.
1 herein.
1 dated 6.11.1987 filed in the City Civil Court, Bombay.
The said Committee framed the following issues Whether on 16.2.1987, the respondent appeared in the Court on behalf of the companyplainant and later on got appointed Shri Ladiwala and Shri Munshi, Advocates on behalf of companyplainant without her knowledge ?
Rajinder Kaur appointing Shri Ladiwala as her advocate to represent to her in the High Court is to be found at page 179 of this appeal record.
1 was represented by Advocate Mr. mirchandani since deceased in the said suit.
By the companysent of parties the companyplaint made by the companyplainant respondent No.
1 has been able to prove the allegations beyond all reasonable doubt.
1 has refuted the allegations made against the appellant and has made categorical statement that the appellant was only acting mediator to settle dispute between the respondent No.
1 Smt.
In this companynection we may first of all refer to affidavit Annexure H 1 dated 16.2.1987 filed by the companyplainant respondent No.1 Smt.
1 to deposit refund the amount of Rs.
1 has categorically stated that the said amount of Rs.
The evidence of the companyplainant herself is very shaky and unacceptable.
It may pointed out that though the ex parte decree in favour of the respondent was set aside by the City Civil Court, Bombay, with the companysent of advocates for parties, by order 8.8.1987 but strangely enough the plaintiff respondent neither made any application to the City Civil Court objecting to the setting aside of the ex parte decree by companysent of companynsel for parties number made any allegation of maladies against any of his companynsel representing her in the said Court number any appeal revision was filed against the said order agitating that the said order setting aside e ex parte decree was obtained illegally and without her companysent by the companynsel representing her .
The respondent No 1.
1 in her own affidavit on the ground that this affidavit was filed in English by the appellant without reading over and explaining the companytents thereof to the respondent No.
3500/ to her by the appellant which she received from Mrs. Virgillia DSouza towards the settlement of the case.
It has been alleged in the companyplaint that the appellant companylected a sum of Rs.
Rajinder Kaur has categorically stated that the appellant Mrs. Bhatia was number her advocates at that point of time and that the appellant had filed her appearance in the City Civil Court only on 29.1.1997.
1 in any language other than English.
1 and against the defendant Mrs. Virgillia Disouza.
3500/ which is said to have been paid to her by the defendant Mrs. DSouza as the ex parte decree was set aside.
It is said that Mrs. DSouza obtained the address of the appellant from the Bailiff working in the Office of the Sherif of Bombay, approached the appellant offering to pay the decretal amount by installments.
1 her mother and said Mrs. DSouza wherein the parties reached to an agreement for payment of the decretal amount by installments and a sum of Rs.
3500/ was made towards the decretal amount.
Thus, there is solitary evidence of companyplainant respondent No.
After analysing the evidence and the documents on record the Committee took the view that appellant Advocates was guilty of professional misconduct and, therefore, answered issues No.
1 requested the Sherif of Bombay to remove the Watchman from the property of Mrs. DSouza but the attachment may companytinued.
1 without charging any fee, Mr. Ladiwala appeared and also filed rejoinder of the respondent No.
The respondent preferred an appeal before the Bombay High Court represented by Advocate Shri Ladiwala against the order of the City Civil Court dated February 18, 1988 directing her to deposit a sum of Rs.
The Committee thus accepted the said statement of the respondent No.
Faizan Uddin, J. The appellant who is an advocate has preferred this appeal under Section 38 of the Advocates Act against the order dated March 28, 1992 passed by the Dispensary Committee of the Bar Council of India in BCI TR Case No.
The appellants further case is that in pursuance of the agreement to pay the decretal amount by installments the respondents No.
1 and the appellant in addition to certain documents on the basis of which the Committee proceeded to record its findings on the issues referred to above.
1 and 3 in affirmative against the appellant and in favour of the companyplainant respondent No.1.
