1993 Supreme(Raj) 199

High Court Of Rajasthan
Judgename : R.BALIA
MAGHRAJ CALLA - Appellant
Versus
KAJODI MAL - Respondent
C. R. P. 83 Of 1992
Decided On : 05/25/1993

Headnote:

Revision - Suit for damages - Negligence of advocate in discharge of his duties - Decision of Bar Council of India on revision filed by plaintiff affirming decision of State Bar Council rejecting complaint of plaintiff - Held, decision of Bar Council of India operates as res judicata in present suit.

Fact of the Case:

Plaintiff filed a suit against defendant, an advocate, for damages alleging negligence in discharge of his duties qua plaintiff as client. Plaintiff alleged that due to defendant's negligence, appeal could not be filed in time and was dismissed as time-barred by Tribunal. Plaintiff also filed a complaint before Bar Council of Rajasthan against defendant for taking appropriate action. Bar Council refused to make reference to Disciplinary Committee for holding inquiry into alleged misconduct of defendant. Plaintiff filed a revision before Bar Council of India which also opined that application for condonation of delay was rejected mainly due to conduct of complainant and dismissed the revision. Defendant moved an application for amendment of written statement to raise plea that decision under S. 35 of Advocates Act, in which negligence of defendant was the question, substantially and directly in issue between the parties who are also parties to the present suit; in which also the same negligence is substantially and directly in issue. Amendment was allowed and trial court held that decision of Disciplinary Committee or Bar Council does not come within the purview of S. 11, C. P. C. for raising plea of res judicata. Plaintiff filed a revision.

Finding of the Court:

1. S. 11 of Code of Civil Procedure is not exhaustive on the applicability of doctrine of res judicata. The general principle of res judicata is founded on maxims taken from Roman law. Res judicata, it is observed in Corpus Juris, Vol. 31, p. 743, is a rule of universal law, pervading every well regulated system of jurisprudence and is put upon two grounds, embodied in various maxims of common law; one, the public policy and necessity, which makes it in the interest of the State that there should be an end to litigation - interest republicae ut sit finis litium; the other - the hardship on the individual that he should be vexed twice for the same cause - nemo debet bix vexari pro eaden cause. 2. The binding force of such a judgment in such a case as the present depends not upon S. 13, Act X of 1877 but upon general principles of law. If it were not binding there would be no end to litigation. 3. The rule of res judicata as indicated in S. 11 of the Civil Procedure Code has no doubt some technical aspects, for instance, the rule of constructive res judicat- may be said to be technical; but the basis on which "the said rule rests is founded on consideration of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. 4. The doctrine of estoppel by judgment does not rest on any superior authority of the court rendering the judgment, and a judgment of one court is a bar to action between the same parties for the same cause in the same court or in another court, whether the later has concurrent or other jurisdiction. 5. It is not necessary that the court deciding the matter formerly be competent to decide the subsequent suit or that the former proceedings and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial. 6. The disciplinary proceedings commence both before the State Bar Council and the Bar Council of India on a complaint or otherwise made respectively to the State Bar Council or the Bar Council of India. The Bar Councils in either case refer them for disposal to their respective disciplinary committees. 7. Any complaint against the conduct of an advocate has to be preferred before a State Bar Council and when the council has reason to believe on the strength of such complaint that an advocate on its roll has been guilty of professional or other misconduct, it has to refer the case for disposal to its disciplinary committee. The Council can take such a step of its own motion. Section 35 (1) shows that it is not obligatory on the State Bar Council to refer each and every complaiant to the disciplinary committee. It has to be satisfied that there is a prima facie, case for investigation. It can throw out a complaint if the same appears to be frivolous. Sub-s. (2) of S. 35 shows that it is not incumbent on the disciplinary committee of a State Bar Council to proceed further with the matter if it takes the view that the complaint is without substance. 8. The Bar Council in entertaining an application and deciding whether to refer the case to the Discriplinary Committee or not does not act in its administrative capacity as a prosecutor. 9. The Bar Council has exclusive jurisdiction to deal with the complaint at threshold for the purposes of determining whether any case of misconduct against the accused-advocate is made out. If the Bar Council finds in negative, the complaint is rejected; if, on the other hand, it finds that a case against the advocate is made out in the complaint, the complaint is entertained and referred to its disciplinary committee for detailed investigation. The rejection of complaint at the threshold is like dismissal of complaint in limine, which, as discussed above, may or may not be after calling upon the advocate to furnish his explanation, and, the question - whether such a decision would operate as res judicata, in a subsequent proceedings will depend upon actual tenor of the order passed by the State Bar Council while rejecting the complaint in limine. It hardly needs to be emphasised that it is the conclusion contained in the order that operates as res judicata and not inference that can be drawn from the order. If the order is not speaking order or it does not record any final conclusion on the merit of allegations in complaint, it cannot operate as res judicata. On the other hand, if a reasoned order recording finding on the merit of case is there, it will operate as res judicata in subsequent proceedings, between the same parties. 10. The proceedings against an accused for committing a crime are conducted in the name of State, in exercise of its sovereign powers and that is in respect of breach of a public right and duties, which affect the whole community. In such proceedings, the complainant is never a party. He is never asked upon to prosecute and prove allegations levelled by him against the accused. Whereas, as I have noticed above, that in proceedings under Sec. 35, which comes into existence on a complaint made by an aggrieved person, the complaint becomes a party, he is to lead evidence and prove allegations made by him in his complaint and, to establish the charges levelled by him. In such cases also, to keep a decision obtained by a party against him as a participant in the proceedings, out of purview of the principle of res judicata will, in my opinion, be contrary to general principle of res judicata; in the application of which nature of two proceedings, the grant of relief in two proceedings is immaterial, as required under Sec. 11, C. P. C.

Issues: 1. Whether the decision of the Bar Council of India on revision filed by the plaintiff affirming the decision of the State Bar Council rejecting the complaint of the plaintiff operates as res judicata in the present suit? 2. Whether the decision of the authorities under Section 35 of the Advocates Act, which has commenced on receipt of a complaint, and has no bearing on the cases where the Bar Council commences proceedings suo motu, or the complaintant after having lodged the complaint has withdrawn from prosecution?

Ratio Decidendi: 1. The decision of the Bar Council of India on revision filed by the plaintiff affirming the decision of the State Bar Council rejecting the complaint of the plaintiff operates as res judicata in the present suit. 2. The decision of the authorities under Section 35 of the Advocates Act, which has commenced on receipt of a complaint, and has no bearing on the cases where the Bar Council commences proceedings suo motu, or the complaintant after having lodged the complaint has withdrawn from prosecution.

Final Decision: Petition allowed. Order under Revision, dated 31-10-1991, passed by the Addl. District Judge No, 3, Jodhpur: is set aside and findings on issue No. 11 recorded by the trial court is reversed, as aforesaid. the trial court will proceed further in accordance with law, in the light of findings recorded by this Court on issue No. 11. However, it is made clear that my aforesaid conclusions are confined to decisions rendered by authorities under Section 35 of the Act, which has commenced on receipt of a complaint, and has no bearing on the cases where the Bar Council commences proceedings suo motu, or the complaintant after having lodged the complaint has withdrawn from prosecution. It is also made clear that while decision of the authorities under Section 35 or of the civil court on the question whether the particular acts alleged against the accused constitute negligence on the part of the advocate may be binding in subsequent proceedings before the forum trying such subsequent proceedings, it has no bearing and fetters in the exclusive jurisdiction of the tribunal to decide whether such negligent act further constitute a misconduct on the part of advocate for such negligence can further constitute an actionable act on the part of defendant, rendering him liable for damages, inasmuch as both these questions fall within the exclusive jurisdiction of the respective forums, the other forum having no competence to decide these issues and record their findings thereon. There will be no order as to costs of this Revision.