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Judges
  • Sir Lionel Leach, C.J
  • Mockett
  • Abdur Rahman, JJ.
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Citation Codes
Equivalent Citations
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Judges
  • Sir Lionel Leach, C.J
  • Mockett
  • Abdur Rahman, JJ.
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Smart Summary

Summary of Opinion — Delivered by Sir Lionel Leach, C.J. (with Mockett, J. and Abdur Rahman, J.)

Factual and Procedural Background

The respondent, an Advocate of this Court, was the subject of a professional-misconduct complaint by Palaniswami Chetty (deceased). Three charges were laid: (1) that the respondent was engaged in or about July 1934 to file an appeal and was provided funds, but presented the memorandum of appeal with a court-fee stamp of only Rs. 50 instead of Rs. 142; (2) that, after filing with a deficient court-fee, the respondent made the complainant believe the full fee had been paid; and (3) that when the memorandum was returned by this Court for re-presentation with the proper court-fee the respondent failed to re-present it in time.

The Bar Council Tribunal heard evidence from both sides and reported that it accepted the respondent's account of the arrangement and found that there had been no professional misconduct. The Court reviewed the Tribunal's report and the underlying evidence.

Legal Issues Presented

  1. Whether the respondent filed the memorandum of appeal with a deficient court-fee (Rs. 50 instead of the required Rs. 169-9-0 / Rs. 142 as alleged) after being provided funds to file the appeal.
  2. Whether the respondent led the complainant to believe that the full court-fee had been paid despite the deficiency.
  3. Whether the respondent failed to re-present the memorandum in time after it was returned by the Court for proper stamping.

Arguments of the Parties

Complainant's Arguments

  • The complainant asserted that he paid Rs. 175 to the respondent on account of costs of the appeal and that the arrangement was that the court-fee should be paid out of that Rs. 175.
  • The complainant contended that the memorandum was filed under-stamped (only Rs. 50) when the full amount for stamping had been provided.

Respondent's Arguments

  • The respondent stated that of the Rs. 175, Rs. 100 was to be retained by him as his fee, Rs. 50 was to be spent on court-fee stamps, and the remainder on other expenses.
  • He explained that because the complainant could not then pay all required amounts, it was agreed that the respondent would file the appeal stamped with Rs. 50 only and that the complainant would later supply the balance when the Court identified the deficiency.
  • The respondent asserted that he wrote several times to the complainant requesting funds to make up the deficiency; Exhibit 1 (a post card dated 15 November 1934 referring to earlier letters) was produced and shown to have been refused by the addressee.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court accepted the Tribunal's evaluation of the evidence and its conclusion that the charges were not established. The reasoning relied on the following points expressly set out in the opinion:

  • The Tribunal rejected the complainant's witness Subraya Chetti's evidence and relied in particular on the testimony of Mr. V.S. Ramanujachari, who said the complainant had told him only a portion of the court-fee and of the advocate's fee had been paid and who advised the complainant that delay-extension would be difficult and to send the balance promptly.
  • The respondent produced documentary evidence (Exhibit 1, a postcard dated 15 November 1934) referring to earlier written requests (21 October and 31 October 1934) asking the complainant to meet to re-present the appeal; the postcard was endorsed as refused by the postal authorities. The Court regarded this documentary evidence as corroborating the respondent's account that he sought further funds from the complainant.
  • The Court described the Court office procedure for receiving and checking the stamping of memoranda of appeal: initial filing/registration by a Receiving Section followed by a stamping check and, if deficient, return to the filing Advocate by the Deputy Registrar. The memorandum was in fact returned on 26 September 1934, nearly two months after filing.
  • On these factual findings the Court agreed with the Tribunal that the respondent's version of the arrangement was correct and that the charges had not been substantiated.
  • Separately, the Court criticized the practice followed: filing an appeal on the last day of limitation knowing it was under-stamped and hoping the deficiency could be remedied later was described as inconsistent with the high traditions of the profession and a practice the Court would not tolerate. The Court noted that one other Advocate had refused to file on similar terms and that the respondent should have refused as well.
  • The Court did not decide whether the respondent's conduct amounted to professional misconduct because that question was not before it; the Court limited itself to upholding the Tribunal's factual finding while censuring the practice in principle.
  • The Court also analysed and criticized the long delay in presentation of the Tribunal's report: the Tribunal was constituted on 25 April 1936, but the report was presented only on 27 July 1938. The Court noted there was no explanation for the delay, observed that seven witnesses in total were examined and that examinations were not lengthy, and admonished that such matters should be dealt with more promptly so that a charge should not hang over an Advocate for more than two years.
  • Mockett, J., in a concurring note, emphasized an additional practical danger: that such filing practices create pressure to draft affidavits containing false grounds to justify the under-stamping, an evil the judge considered must be guarded against. Abdur Rahman, J., agreed with the judgments.

Holding and Implications

The Tribunal's finding that the charges of professional misconduct were not substantiated is upheld.

Implications:

  • The direct consequence is that the respondent was not found guilty of professional misconduct on the three charges and the Tribunal's report absolving him of misconduct was accepted.
  • The Court issued a strong admonition against the practice of filing appeals knowingly under-stamped and particularly against filing on the last day of limitation with the expectation that the deficiency will be tolerated; it warned that such practices are inconsistent with professional standards and warned of attendant risks (including the temptation to prepare false affidavits).
  • The Court also criticized the lengthy delay in the Tribunal process and called for more prompt disposition of such matters; beyond these admonitions, no new legal precedent or novel rule was established by the opinion.

This summary is prepared solely from the provided opinion text and does not introduce information not contained therein.

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    An Advocate, In Re

    The Judgment of the Court was delivered by

    Sir Lionel Leach, C.J:— The respondent who is an Advocate of this Court was charged with professional misconduct on a complaint by one Palaniswami Chetty, who is now dead. There were three separate charges. The first charge was that the respondent was engaged in or about July 1934 by the complainant to file an appeal in this Court and was put in sufficient funds for filing it, but that he presented the memorandum of appeal with a court fee stamp of only Rs. 50 whereas it should have been stamped with a court-fee of Rs. 142. The second charge was that having filed the appeal with a deficient court-fee the respondent made the complainant believe that the full court-fee had been paid. The third charge was that when the memorandum of appeal was returned by this Court for re-presentation with the proper court-fee the respondent did not re-present it in time, as he ought to have done. The Bar Council Tribunal heard the evidence on behalf of the complainant and the respondent and has presented a report in which it accepts the respondent's version of the arrangement between him and the complainant, and finds that there has been no professional misconduct.

    The complainant's case is this. On or about 26th July 1934 he saw the respondent with a view to filing an appeal from a decision of the Subordinate Judge of Cuddalore, and on 30th July, the respondent having accepted his instructions, he paid to the respondent a sum of Rs. 175 on account of costs of the appeal. It is common ground that the stamp and the process fees required Rs. 169-9-0. The complainant says that the arrangement was that the court-fee was to be paid out of the Rs. 175. The respondent's case is that out of the Rs. 175, Rs. 100 was to be kept by him on account of his fees, Rs. 50 to be spent on court-fee stamps and the balance utilized for other expenses. He says that as the complainant was not in a position to pay all that was required for court-fees and his fees it was arranged that the respondent should file the Appeal, stamped to the extent of Rs. 50 only, and the complainant should pay the balance when the Court discovered the deficiency in the court-fee.

    In this Court a memorandum of appeal is received by what is known as the Receiving Section. The officials is this department merely enter in a register the date of filing. The memorandum is then passed on to another department where the stamping is checked. If it is discovered that there is a deficiency in the stamping the matter is placed before the Deputy Registrar, who causes the memorandum to be returned to the Advocate who filed it. The arrangement in this case was that the memorandum should be filed with a stamp of less than the proper value and that, when the deficiency was discovered, the complainant should put the respondent in further funds so that the deficiency in the stamping could be rectified. This scheme depended for its success on the Court not discovering the true position. The memorandum of appeal was not returned to the respondent until 26th September 1934, that is nearly two months after it had been filed.

    Subraya Chetti gave evidence in support of the allegation that the Rs. 175 was paid to the respondent for the purpose of filing the appeal and that the arrangement was that he should pay the court-fee out of this money. This evidence was not accepted and in rejecting it the Tribunal relied on the evidence of Mr. V.S Ramanujachari, an Advocate practising at Cuddalore. According to. Mr. Ramanujachari the complainant told him after his interview with, the respondent that only some portion of the court-fee had been paid and some portion of the Advocate's fee. On hearing this he informed the complainant that there would be difficulty in obtaining an extension of time and advised the complainant to send the balance as soon as possible. The respondent states that when the complainant failed to send the money to make up the deficiency in the court-fee he wrote to him several times but the complainant took no notice of the letters. The complainant denies that he received any letter but it is quite clear that the respondent wrote to him. Exhibit 1 is a post card, which the respondent wrote to the complainant on 15th November 1934 and in it he referred to the fact that he had written, to him on 21st October 1934 and on 31st October 1934 asking him to meet him at Tirupapuliyur on 2nd November 1934 to attend to the matter of re-presenting the appeal in Court. This post card, as the endorsement by the postal authorities shows, was refused by the complainant.

    We see no reason to take a different view of the evidence of Mr. Ramanujachari, especially as the respondent's case is strongly supported by Exhibit I. We agree with the Tribunal that the charges against the respondent have not been substantiated and that the arrangement between him and the complainant was as stated by the respondent. At the same time it is obvious from the respondent's own evidence that the filing of the memorandum of appeal on the last day of limitation knowing full well that it was under-stamped and hoping that the Court would be persuaded to accept the deficiency later is certainly not in accordance With the high traditions of the profession to which he belongs. If the real facts did become known to the Court it is obvious that the Court would not allow the deficiency to be paid. Another Advocate who had been approached to file the appeal on terms similar to the arrangement accepted by the respondent refused to file it and the respondent also should have refused to file it unless the full amount of the court-fee was first paid. We are not now considering whether this action of the respondent amounts to professional misconduct. That question is not before us. But this Court will not tolerate practices of this nature.

    Before I conclude, I will refer to another matter and that is the delay which has taken place in the presentation of the report. The order constituting the. Tribunal was passed on 25th April 1936. The report wars presented on 27th July 1938. Including the complainant and the respondent the total number of witnesses examined was seven and the examinations were not of a lengthy nature. The complainant was examined on 10th December 1936, Subraya Chetty on 6th February 1937 and another witness called by the complainant on 23rd February 1937. There was no further examination till 19th August 937 when Mr. Ramanujachari was examined, and the last witness was not examined until 6th April of this year. There is no explanation of the delay. The Court trusts that in future these matters will be dealt with much more speedily. In fairness to the respondent a charge of this nature should not be hanging over his head for more than two years, as has been the case here. I hope that these remarks will have the effect they are intended to have.

    Mockett, J.:— I agree. I only wish to add a word with regard to one matter. My Lord the Chief. Justice has pointed out the undesirability of practitioners lending themselves to the practice of deliberately filing appeals under-stamped. I wish to emphasize one evil which must inevitably arise out of that practice and it is this. On the facts in this case there was no reason whatever why the appeal should not have been filed in time and with the correct court-fee. Th result probably would have been that the Advocate would have been asked to draft an affidavit setting out wholly false grounds known to him to be untrue for not putting the proper stamp fee, and experience unfortunately shows that statements are included in his class of affidavits which have no basis whatever. If the proper practice is followed, as I have no doubt it is, by many members of the Bar (one Advocate clearly would have nothing to do with the arrangement in this case) this danger of the Bar being asked deliberately to draft false affidavits will not arise.

    Abdur Rahman, J.:— I agree.

    V.V.C

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    Comments

    An Advocate, In Re
    (Sep 12, 1938)