MOHAMMED YUSUF Vs. D

JUDGEMENT

(1.) These four cases arise out of the petitions loaded by one Sir Mohammed Yusif and his son, Abdul Fahman against two practicing lawyers D and s for taking action against them far professional misconduct., out of these three petitions, two were filed by Sir Mohammed Yusif, one against d in his capacity as a solicitor and the other against him as an advocate and also against S as an advocate . the third petition was filed by Abdul Rahman against D as a solicitor complaining that the latter was responsible for filing false proceedings under the Administration of Evacree property Act against him and pursuing them with a view to deter him from claiming the amount that D had retained and for which he failed to render accounts to him. The two petitions filed by Sir Mohammed Yusif and Abdul Rahman against D as a solicitor were referred to a committee of the Incorporated Law Society. The latter submitted a report exonerating learned Chief Justice was not satisfied with the report and therefore, referred the matter to Shelat J for further investigation and report. After a full enquiry into the matter. Shelat JH came to the conclusion that D had retained a sum of Rs.3,10,791-2-0 (which will hereinafter referred to as a sum of Rs,. 3 lakhs and odd) and failed to render account in respect of the same to his client, Sir Mohammed Yusif. He however, found that the charge levelled by Abdul Rahman in respect of the evancee proceedings was not established., the complaint made against D and S as advocates was referred to the Bar Council. This complaint was comprehensive and also included the charge regarding the evancee proceedings,. The matter was referred to a tribunal of the Bar Council and the tribunal took the view that all the changes were established against both the advocates., after the report of the Bar Council was received, the learned Chief Justice has referred the matter to this /Divisional Bench for a final decision., on the basis of the report submitted by Shelat J. the advocate General of Maharashtra has filed a petition, which is disciplinary No.1 of 1961 against D under Rule 72 of the Original Side Rules. That petition also has been referred by the learned Chief Justice to us for a final decision. It will be appropriate to dispose of all these matters by a common judgment in view of the fact that they involve common questions of fact and law. (After proceeding with the facts of the case (Paras 2 to 7 ) his Lordship observed). Before coming to grips with the principal points in dispute, we will dispose of one or two incidental questions that were urged at the very outset before us.

(2.) Rules 64 to 74 in Chapter IV if the Original Side Rules have been recast and new Rules have been substituted in their place. These new Rules came into force his January 1960. Shelat J. had submitted his report before that date and the learned Chief Justice had given his directions to the Advocate General for filling the petition under Rule 72 of the Rules also before that date. Under the old Rules, if the attorney against whom a complaint is made also happened to be advocate, then there would be a double enquiry. First, an enquiry by the Law Society in his capacity as an attorney and the second enquiry by the by the Bar Council in his capacity as an advocate. That is exactly what has happened in the present case. The enquiries in some cases may be protracted, as has happened in the present case. Realising that considerable waste of time would be involved in two proceedings, (as is the case here) each of which has been a prolonged affair, the Rules in Chapter IV have been over hauled and the procedure has now been simplified. The new Rules proscribe that in a case where an attorney also happens to be an advocate, the complaint will be straightway be referred to the Bar Council and the Bar Council will submit its report under S. 12 of the Bar Council Act. Thereafter, the High Court will deal with the same under the provisions of the said Act. In the present case, two enquiries were completed one by the incorporated Law Society and the other by the Bar Council before the coming into operation of the new Rules and directions were given by the learned chief Justice to the advocate General to file his complaint before that date. Although, therefore the petition has actually been filed on 8th February 1961, after the coming into operation of the new Rules the petition would be quite in order and would be governed by the old Rules. After some discussion, Mr. Gupte, who appeared on behalf of D conceded the position and pointed out that his purpose in raising the question was to challenge the right of Sir Mohammed Yusuf or Abdul Rahman to appear through as counsel to represent them in these proceedings. According to Mr. Gupte after the Advocate General has lodged the petition, the proceedings are proceedings between the Advocate General on one side and the attorney and the advocate on the other and the private parties who initiated these proceedings have no locus standi. He argued that the same would be the position under the Bar Council Act. We do not think it necessary to decide this question, because there is no doubt that the Court has discretion to allow a party to be represented through an advocate or a counsel in these proceedings. In view of the complexity of the issues involved in these proceedings and in view of the fact that Sir Mohammed Yusuf and Abdul Rahman are vitally concerned in the result of the case we felt that this was a fit case for exercising our discretion in their favour and permitting them to be represented through a counsel. [After further proceeding with the case (Paras 9 to 20) his Lordship observed.]

(3.) In order to understand the full implications of the change effected in the receipt so as to convert it into an authority cum-receipt document, it is necessary to consider the general question as to whether any special authority was necessary to be given to the lawyers so as to enable them to receive payment. On that point the evidence of Jasjitsingh, the then collector of Thana, throws some light. In answer to questions in Coors-examination, Jasjitsingh says that normally, the payment of compensation money would not be made to any person other than the claimant without an authority. Abdul Rahuman's evidence seems to suggest that the Vakalatnama conferred authority on the lawyers to receive payment by cheque provided a receipt is signed by the client in token of having received the same. We have already pointed out that although no Vakalatnama is traceable in the records of the acquisition proceedings, we must proceed on the footing that Vakalanama or Vakalatnamas must have been given to S or D separately or to both generally, Since no Vakalatnama is traceable, it is not possible to know the terms thereof. A Vajakatnama may be general. It may specifically confer wide authority upon the lawyer including the authority to compromise and to receive Vakalatnama is generally worded, we are unable to understand why that should not enable the lawyer to accept a cheque on behalf of his client when he is armed with an acknowledgement receipt signed by his client and produces the same before the paying authorities. Jajitsingh's admission is qualified by two cautious words that he had used viz., he speaks of the 'normal' procedure and secondly, he uses the general word 'authority' . A lawyer holding a Vakalatnama can hardly be regarded as a person without authority. This principle may not apply to cash payment, because of the categorical statement made by Jasjitsings in that behalf to which reference will made immediately.