Bookmark
PDF
Share
CaseIQ

R. Varadachariar Petitioner (). v. C.R Kalyanasundaram Aiyar (Petitioner).

Madras High Court

Sep 8, 1922

Judgment

Subsequent
References

CaseIQ

Smart Summary (Beta)

Structured Summary of the Opinion

Factual and Procedural Background

This Civil Revision Petition arises from an application made in the District Court of Coimbatore by the respondent (a High Court Vakil) under Section 36 of the Legal Practitioners' Act, 1879, seeking action against the petitioner on the ground that he was a "tout." The petitioner complained that the respondent's petition was defective and lacked necessary particulars, and argued that even if the petition's allegations were accepted, they did not establish that he was a "tout" as defined under the Act. The petitioner applied that the District Court should reject the petition on the ground that the allegations could not form the basis of an inquiry. The District Munsif dismissed that application. The petitioner challenged the District Judge's jurisdiction and alleged material irregularity in the conduct of the enquiry (including refusal to order particulars), and sought to quash the proceedings by filing the present revision petition in the High Court.

Legal Issues Presented

Whether the respondent's petition should be rejected as defective for want of necessary particulars and on analogy with Order VII, Rule 11 of the Code of Civil Procedure.
Whether the District Judge had jurisdiction to proceed with an enquiry under Section 36 of the Legal Practitioners' Act, XVIII of 1879, or whether he acted with material irregularity in refusing to order particulars and in his conduct of the enquiry.
Whether the procedure prescribed in Sections 107 to 112 of the Code of Criminal Procedure (1898) should be applied to enquiries under Section 36 of the Legal Practitioners' Act.
Whether the procedure applicable to charges of unprofessional conduct under Section 14 of the Legal Practitioners' Act should be imported into enquiries under Section 36.
Whether, on the evidence before the District Court, there was no material to sustain an enquiry and whether the High Court should, in revision, quash the proceedings.

Arguments of the Parties

Petitioner's Arguments (advanced by the Advocate-General)

The respondent's petition was defective, indefinite and lacked necessary particulars; it made vague and irrelevant imputations without clear charges.
On analogy with Order VII, Rule 11, Code of Civil Procedure, the petition should have been rejected as it did not disclose a cause warranting enquiry (an argument conceded to be sound if the matter were an ordinary civil suit).
The enquiry under Section 36 should follow the procedure in Sections 107–112 of the Code of Criminal Procedure, which prescribe mandatory procedural steps (including written orders under Section 112 and accompanying copies under Section 115).
The procedure for charges of unprofessional conduct under Section 14 of the Legal Practitioners' Act (which prescribes serving a copy of the charge at least 15 days before hearing) should be applied to this enquiry.
The District Judge acted without jurisdiction or with material irregularity (for example, by refusing requests for particulars and by refusing to reserve cross‑examination), and there was no evidence to sustain the charge.

Respondent's Position (as reflected in the record)

The respondent instituted proceedings under Section 36 of the Legal Practitioners' Act and filed a petition seeking the petitioner's inclusion as a tout on the authorised list.
The respondent opposed the petitioner's procedural applications (including requests for particulars and for a particular order of examination), and proceeded to call several practitioner witnesses in support of his case.
Although the proceedings were initiated at the respondent's instance, he did not himself give oral evidence; his witnesses testified to general matters such as the petitioner's habitual conduct in court and assistance to parties and vakils.
The respondent (through counsel Mr. T. R. Ramachandra Aiyar) expressed willingness to produce witnesses as required for further cross‑examination if the District Judge so directed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hari Charan Sircar v. District Judge of Dacca (1910) 11 C.L.J. 513 at 518	That Section 36 creates a special jurisdiction without defining procedural details and that the course adopted should be one which will do substantial justice to the parties.	The Court adopted and accepted this principle as the guiding rule: enquiries under Section 36 must be conducted so as to do substantial justice, rather than by rigidly importing procedures from other statutes.
Sundara Upadya v. The President of the Mukthears' Association, Chapra (1911) 15 C.W.N. 100	Authority indicating the High Court's power to interfere in revision when lower courts act on no legal evidence in declaring a person to be a tout.	The Court acknowledged the High Court's revisional power demonstrated by this line of authorities but held that those cases did not bear on the specific procedural questions before it in the present matter.
In re Siddeshwar Boral (1901) 19 M.L.J. 504; 6 M.L.T. 253	Authority on High Court interference under revision in Section 36 matters (cases where lower courts acted on no legal evidence).	The Court accepted that such authorities show revisional jurisdiction but found them not directly relevant to the procedural issues then under consideration.
In Re Somayajulu Ramamurthi (1912) M.W.N. 959	Similar authority concerning revision and Section 36 enquiries.	Recognised as part of the line of cases demonstrating revisional power; not considered decisive on the present procedural questions.
In Re Jonnalagedda Sambayya (1915) 28 I.C. 918	Another authority relating to High Court revision in Section 36 contexts.	Cited as part of the corpus showing revisional power; court found it not directly applicable to the question before it.
Keramat Ali v. Emperor (1921) 62 I.C. 829	Authority in the same vein concerning revision under Section 36.	Noted by the Court as an instance of revisional intervention but held not to affect the procedural determination in this case.
In re A.G. Ganapathi Sastry and Anr. (1909) 19 M.L.J. 504; 6 M.L.T. 253	Case dealing with charges made against legal practitioners.	The Court treated this and comparable authorities as dealing with Section 14 style charges or other procedures and considered them of limited assistance to the present Section 36 enquiry.
In the matter of John Thompson of Moulmein (14 W.R. 257)	Case dealing with charges against legal practitioners (procedural authority).	Referenced among authorities on practitioner charges; the Court found it of little assistance to the Section 36 procedural issue.
Suryanarayana Iyer v. Sitharama Sastri (1895) 6 M.L.J. 142	Authority concerning charges against legal practitioners.	Referred to among cases on practitioner charges; not regarded as dispositive for the present enquiry procedure.
Ranga Reddi v. King Emperor (1920) I.L.R. 43 M. 450; 38 M.L.J. 97	Proceedings under Sections 107–112 of the Code of Criminal Procedure.	The Court noted these authorities relate to CrPC Sections 107–112 and, for reasons already given, considered them of little assistance in shaping procedure for Section 36 enquiries.
Konda Reddi v. King Emperor (1917) I.L.R. 41 Mad. 246	Proceedings under Sections 107–112 of the Code of Criminal Procedure.	Grouped with other CrPC authorities; the Court held such authorities were not helpful for determining the procedure under Section 36.

Court's Reasoning and Analysis

The Court proceeded from the statutory text and the record of the District Court proceedings and addressed, in sequence, the procedural contentions advanced by the petitioner.

First, the Court agreed that the respondent's petition was defective and indefinite in many respects, and accepted the Advocate‑General's criticism that particulars were lacking. However, the Court emphasized that Section 36 of the Legal Practitioners' Act does not require a petition to be filed at all and does not prescribe a detailed procedure. The power conferred by Section 36 is to frame and publish lists of persons whom the District Judge is satisfied habitually act as touts, and a person cannot be included until he has had an opportunity of showing cause against inclusion. The statute expressly contemplates that the District Judge may act on "evidence of general repute," indicating that proof of specific acts is not necessary.

On this basis the Court held that Order VII, Rule 11, Code of Civil Procedure (the mechanism for rejecting a defective plaint in a civil suit) was not apt to be imported into Section 36 proceedings, because those proceedings are not ordinary civil suits between two parties and Section 36 contemplates a different (less formal) mode of initiating action.

Second, the Court rejected the contention that the mandatory procedural steps prescribed in Sections 107–112 of the Code of Criminal Procedure should be applied to Section 36 enquiries. The Court noted that those CrPC provisions themselves make imperative the observance of specified rules (for example, written orders under Section 112 and accompanying copies under Section 115). In the absence of similar mandatory provisions in the Legal Practitioners' Act, it was unreasonable to require that Section 36 enquiries follow the CrPC machinery that is designed for quite different kinds of proceedings.

Third, the Court rejected the argument that the detailed procedure for charges of unprofessional conduct under Section 14 of the Legal Practitioners' Act should be imported into Section 36 enquiries. Section 14 prescribes a definite procedure (including service of a copy of the charge at least 15 days before hearing), but Section 36 contains no such prescription; there is a marked statutory contrast and the Court refused to read into Section 36 words that are found only in Section 14.

The Court then invoked the principle from Hari Charan Sircar v. District Judge of Dacca: where a statute creates a special jurisdiction without defining procedural details, the method adopted should be whatever will do substantial justice to the parties. The Court accepted that as the governing standard.

Applying that standard to the facts, the Court examined the record of the District Court: the District Judge found the petition's details sufficient and directed the enquiry to proceed; several respondent witnesses were examined on 4th, 7th, 9th and 16th March; the petitioner cross‑examined them at length and then called his own witnesses beginning on 27th March; the civil revision petition was filed in this Court on 28th March. The Court concluded that the petitioner had ample opportunity to ascertain the charges and to cross‑examine witnesses. While the District Judge had refused some procedural requests (for example, to reserve cross‑examination or to alter the sequence of examination), the Court observed it would have been satisfactory if the District Judge had acceded to at least one of the petitioner's requests, but found these refusals did not amount to material irregularity warranting interference.

On the sufficiency of evidence, the Court stated that, having examined the evidence, it could not accept the submission that there was no evidence to sustain a charge; there was material on which the District Judge could proceed or refuse to proceed, and that decision was for the District Judge in the first instance.

The Court also noted certain indicia suggesting lack of bona fides in the respondent's conduct (for example, the respondent did not give evidence himself although proceedings were at his instance), but the Court expressly treated these observations as not central to the legal determination on the revision petition.

Finally, although the Court refused to quash the proceedings, it directed that if the petitioner desired to cross‑examine further any witnesses already cross‑examined, the District Judge should facilitate that, and the respondent's counsel indicated willingness to produce additional witnesses for that purpose.

Holding and Implications

Holding: The High Court DISMISSED the Civil Revision Petition.

Direct implications for the parties:

The District Court proceedings under Section 36 of the Legal Practitioners' Act were not quashed and may proceed; the High Court concluded that the District Judge did not usurp jurisdiction nor act with material irregularity in a manner justifying interference.
The petitioner retains the procedural remedy to seek further cross‑examination of witnesses; the Court directed the District Judge to give necessary facilities for any further cross‑examination the petitioner may legitimately seek, and the respondent's counsel offered to produce witnesses for that purpose.
No order as to costs was made by the High Court ("I do not propose in the circumstances to make any order as to costs").

Broader legal implication: The Court applied the principle that Section 36 creates a special jurisdiction lacking prescribed procedural detail and that the procedure adopted should achieve substantial justice. The opinion did not purport to set a novel rule of general application beyond applying that established principle to the facts before it.

Show all summary ...

1. I have heard very full arguments and I proceed to deliver judgment at once.

2. This revision Petition arises out of and is connected with an application made to the District Court of Coimbatore by the respondent, a High Court Vakil, to take action under Section 36 of the Legal Practitioners' Act, XVIII of 1879, against the petitioner who was alleged to be a tout.

3. The petitioner complained that the petition filed by the respondent was defective, that it did not contain necessary particulars and that, even if all the allegations made in it against him were true, he would not be a "tout "as the word is defined in the Act, and he applied to the District Court that the petition might be rejected on the ground that the allegations in the petition could not constitute the basis of an enquiry. The District Munsif dismissed the application and it has been argued before me that the District Judge had no jurisdiction to proceed with the enquiry and that he at any rate acted with material irregularity in refusing to order particulars. I have been asked to quash the proceedings.

4. The learned Advocate-General on behalf of the petitioner argued very forcibly that it was apparent from the petition filed by the respondent that the latter had very indefinite conceptions regarding a tout, that, while making irrelevant imputations, he did not even suggest that the petitioner was guilty of any acts which would be improper under the Act, that the respondent's object appeared to be to make allegations with a view to create prejudice and that he carefully avoided giving any particulars or making any definite and clear charges. With this criticism of the petition, I entirely agree. It was argued on the analogy of OrderVII, Rule 11, Code of Civil Procedure, that the petition should have been rejected. This argument would no doubt be sound if the proceedings were between two parties as in the case of a civil suit. Under Section 36 of the Legal Practitioners' Act, 1879 it is not necessary that there should be petition at all. It does not contemplate the case of a private party making definite allegations against an alleged tout. I must therefore regard the petition filed in this case as a superfluity. The District Judge is authorised to frame and publish lists of persons proved to his satisfaction habitually to act as touts. No procedure is laid down and the section merely provides that no person shall be included in any such list until he has had an opportunity of showing cause against such inclusion. It is important to bear in mind that evidence on which the District Judge may act under the section, may be "evidence of general repute. " It seems to me that the Court acting under Section 36 would sufficiently comply with its provisions if it called upon the alleged tout to show cause why his name should not be included in the list provided an opportunity was given to him to rebut the evidence tendered and otherwise to place his case before the Court. Although the petition filed by the respondent was defective, it referred to Section 36 of the Act and contained a prayer that the petitioner should be declared a tout. The petitioner had notice of the nature of the proceedings instituted against him and he clearly knew that he was asked to defend himself in respect of action taken under Section 36. Moreover the words "Evidence of general repute "in the section indicate that it is not necessary to prove specific acts on the part of an alleged tout. I am therefore unable to accept the argument that Order 7, Rule 11, Code of Civil Procedure is applicable.

5. The next argument of the Advocate-General was that the procedure laid down in Sections 107 to 112 of the Code of Criminal Procedure, 1898, should be followed in an enquiry of this kind. I cannot accept this contention. In Sections 107, 108, 109 and 110 occur the words, "the Magistrate may, in the manner hereinafter provided, require such person to show cause. "Section 112 provides the manner; it enacts "When a Magistrate acting under Sections 107, 108 and 109 or Section 110 deems it necessary to require any person to show cause under such seceion, he shall make an order in writing setting forth the substance of the information received..."and Section 115 requires that every summons or warrant shall be accompanied by a copy of the order made under Section 112.

6. It will thus be seen that in respect of the proceedings under these sections of the Code of Criminal Procedure, the law has made the observance of certain rules imperative and it seems unreasonable to hold in the absence of similar provisions in the Legal Practitioners' Act, that an enquiry under section 36 of that act should be conducted in the manner prescribed in the Code of Criminal Procedure regarding enquiries altogether of a different nature.

7. It was next argued that the District Judge should have followed the procedure laid down in regard to charges of unprofessional conduct against legal practitioners. This argument again seems to be untenable. Section 14 of the Legal Practitioners' Act, 1879, deals with such charges. It prescribes a very definite procedure. It says " if any such pleader is charged, the presiding officer shall send him a copy of the charge. " It further provides that such copy shall be served upon the pleader at least 15 days before the date of hearing. The contrast between Section 14 and Section 36 is very marked and I cannot import into the latter words which find a place only in the former.

8. What then is the duty of the Courts in regard to an enquiry under Section 36? I think the answer is contained in the following passage in the judgment of Mukerjee and Carnduff, JJ., in Hari Charan Sircar v. District Judge of Dacca (1910) 11 C.L.J. 513 at 518:

The position, therefore, reduces itself to this: Section 36 of the Legal Practitioners' Act creates a special jurisdiction, but does not define the details of the mode in which that jurisdiction is to be exercised. What course is the Court to pursue? The obvious answer in that the course to be adopted should be such as would do substantial justice to the parties brought before the Court.

9. I accept with great respect the principle enunciated in this passage.

10. I shall examine with reference to the facts of this case, in the words quoted above, whether the course adopted is such as will do substantial justice to the petitioner. It is no doubt true, that several applications made by the petitioner were rejected by the District Judge. His application, that the cross-examination of the respondent's witnesses might be reserved, was refused. Further it was represented to the District Judge that, if the respondent was examined first, the petitioner would be able to know what the definite charges against him were and therefore the Court should take the evidence of the respondent before other witnesses were examined in the case. Even this application was dismissed. In the circumstances it would have been more satisfactory if the District Judge had complied with at least one of the requests of the petitioner. 11. This was not done. The opposition of the respondent was clearly not bona fide. This is proved by the sequel. The respondent examined several practitioners in support of his case that the petitioner was a tout. Those witnesses spoke generally to the fact that the petitioner was interesting himself in litigation which was not his own, that he was generally seen in Court helping parties, giving instructions to Vakils and so forth. These facts if true, were as much within the respondent's knowledge as within the knowledge of any pleader examined. Still he closed his case without himself giving evidence although it was at his instance that the proceedings were initiated. But these are not matters which must weigh with me in dealing with this application.

11. The question is: " Has any case been made out for my interference? " On the 4th of March, the District Judge made the order to which reference has been made stating that the details given in the petition were sufficient and that the enquiry should proceed. On the same date two witnesses for the respondent were examined. On the 7th three more; on the 9th and 16th five further witnesses were examined. The petitioner cross-examined the witnesses at considerable length. He had ample opportunity to ascertain what the charges against him were. The witnesses were not examined at a stretch from day to day and after the respondent closed his case on the 16th of March, the petitioner commenced to examine his own witnesses from the 27th of March and the Civil Revision Petition was filed in this Court on the 28th of March. From these facts, it is clear that the petitioner could have no legitimate complaint in regard to the course adopted.

12. I have closely examined the evidence and I shall say nothing about it which is likely to prejudice either party; but I cannot accept the argument of the learned Advocate-General that there is no evidence to sustain a charge. It will be for the District Judge to act or refuse to act upon the evidence but I cannot say that there is no material on which he can proceed.

13. On behalf of the petitioner several cases were referred to as authorities for the proposition that the High Court can interfere in revision with orders made under Section 36 of the Legal Practitioners' Act. I agree that the High Court has undoubted power to interfere. When the lower Courts acting on no legal evidence whatsoever declared a person to be a tout the High Court in the exercise of its revisional powers set aside the orders. See Sundara Upadya v. The President of the Mukthears' Association, Chapra (1911) 15 C.W.N. 100, In re Siddeshwar Boral (1901) 19 M.L.J. 504: 6 M.L.T. 253, In Re Somayajulu Ramamurthi (1912) M.W.N. 959, In Re Jonnalagedda Sambayya (1915) 28 I.C. 918 and Keramat Ali v. Emperor (1921) 62 I.C. 829. But these cases have no bearing upon the question under consideration.

14. Several other cases were cited by the learned Adovate General. Of these In re A.G. Ganapathi Sastry and Anr. (1909) 19 M.L.J. 504: 6 M.L.T. 253 In the matter of John Thompson of Moulmien (14) W.R. 257, Suryanarayana Iyer v. Sitharama Sastri (1895) 6 M.L.J. 142, deal with charges made against legal practitioners and Ranga Reddi v. King Emperor (1920) I.L.R. 43 M. 450: 38 M.L.J. 97 and Konda Reddi v. King Emperor (1917) I.L.R. 41 Mad. 246 relate to proceedings under Sections 107 to 112 of the Code of Criminal Procedure. For reasons already given by me these authorities are of little assistance.

15. I am therefore not prepared to hold that the District judge either usurped jurisdiction which he did not possess or acted with material irregularity. I would therefore refuse to quash the proceedings, but I would observe that, if the petitioner should desire to cross-examine further any of the witnesses that have already been cross examined, the District Judge should give him the necessary facility. I may add that Mr. T. R. Ramachandra Aiyar has, on behalf of the respondent, expressed his willingness to produce any witnesses required for further cross-examination.

16. I dismiss this Civil Revision Petition and I do not propose in the circumstances to make any order as to costs.