IN RE: S , ADVOCATE Vs. STATE

JUDGEMENT

(1.) Mr. S., an advocate of this Court practising at Budaun, has been called upon to show cause, why ha should not be dealt with under the disciplinary jurisdiction of this Court on the following charge, namely:

(2.) Mr. S has appeared in person and also through counsel. The following facts will be material to understand the nature of the case against Mr. S., One Bhagwant Singh, a hrother a son of two persons Bhau Singh and Lachman Singh, who were serving a term of imprisonment in jail as a result of a criminal case against thorn, instituted a suit against his uncles for a declaration that he had been adopted by Bhau Singh and his wife, and that a certain will executed by Bhau Singh in favour of Lachman was invalid. The suit was filed, as we have said, while Bhau Singh and Lachman Singh were in jail. The suit was instituted on 7th March 1925. An application was made on behalf of Bhagwant Singh for the examination of Bhau Singh in jail. A commissioner was appointed, and he recorded a certain statement said to have been made by Bhau Singh. There was no defence to the suit, and an ex parte decree was made in the plaintiff s favour on 26th March 1925. On 22nd April Bhau Singh and Lachman. Singh applied to have the ex parte decree made against them set aside. The application was contested. The applicants lost in the Court of first instance, but succeeded on appeal to this Court, which set aside the ex parte decree and directed that the suit should be heard on its merits.

(3.) The case was taken up by Mr. Thurston,, the learned District Judge of Budaun. For the hearing of this case Mr. S was engaged by Bhau Singh and Lachman Singh. Bhau Singh executed a power of attorney in favour of his wife Mt. Pania. The learned District Judge held that the adoption had not been proved, and dismissed the suit. An appeal against that decree was dismissed by this Court for default. While the suit was pending before Mr. Thurston Mr. S filed a certificate of fee which professed to be according to Ch. 21, Rule 1, of the General Rules (corrected up to 31st January 1926) framed by this Court for the guidance of the subordinate civil Courts. In this fee certificate he adopted a form which was materially different from the form prescribed by the High Court, and he stated that he had received some fees from his clients by means of a promissory note executed in his favour. The charge against Mr. S is that he knew that no fee which had not been paid in cash before the conclusion of the hearing of the case in which the fee certificate was being filed, could be certified as having been paid to him, and he certified that he had received his fees by means of a promissory note, although that was not in accordance with the said Rule 1 of the Court. This charge, along; with certain other charges, was investigated by three learned members of the-Bar Council who sat as the Bar Tribunal. Their finding was that the filing of the fee certificate on the basis of the promissory note was improper and contrary to the rules, but that Mr. S filed it under a bona fide misapprehension and misinterpretation of the rule and so committed an honest mistake. This Court not being satisfied with this opinion of the Bar Tribunal, has called upon Mr. S to explain his conduct. It is conceded before us that under Ch. 21, Rule 1, no fee which has not bean paid in cash could be certified by counsel as a fee taxable in the case in favour of his client and as payable by the opposite party. In our opinion, there can be no doubt that this is what the rule means. The rule need not be quoted in extense. It will be sufficient to say that the words "fees actually paid to him" occur more than once in the rule. The certificate has to say, among other matters, that the fees were paid to the counsel by certain persons specified below the certificate and that the fees were actually paid to him. The form appended to the certificate has the last column headed as follows : "Address of person who actually made such payment." What Mr. S., did was to invent a form of his own which is materially different from the form prescribed by Ch. 21, Rule 1, aforesaid. His certificate was as follows: