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Allahbad High Court
K.C.AGRAWAL,O.P.SAXENA
Bar Council of India, New Delhi-1 - Appellant
Versus
Manikant Tewari - Respondent
Decided On : 04/01/1983
CIVIL PROCEDURE CODE - Order 43, Rule 1 (w) - Appeal against order granting review - Maintainability - Grounds - Order 47, Rule 7 (1) - Interpretation - Harmonization of provisions - Civil Court's jurisdiction to review orders of Bar Council - Scope - Mala fide acts of Bar Council members - Judicial immunity - Good faith requirement - Abatement of appeal due to death of respondents - Common law rule - Exception - Liability of Bar Council for malicious acts of members - Open question.
Fact of the Case:
Respondent No. 1, an Advocate, was suspended from practice for five years by the Bar Council of India for professional misconduct. He challenged the suspension order by filing a suit in the Civil Court, alleging mala fides and lack of jurisdiction on the part of the Bar Council. The Trial Court initially decided that it had no jurisdiction to try the suit but later reviewed its decision and held that it did have jurisdiction. The Bar Council of India appealed against the review order.
Finding of the Court:
The Court held that the appeal was not maintainable under Order 43, Rule 1 (w) of the Civil Procedure Code (CPC) as it was filed before the amendment of the rule in 1976, which expanded the grounds for appeal against review orders. The Court also held that the Civil Court had jurisdiction to review the orders of the Bar Council if the respondent could establish that he was denied a reasonable opportunity to defend himself in the disciplinary proceedings and that the impugned orders were a nullity and without jurisdiction.
Issues: 1. Whether the appeal against the review order was maintainable under Order 43, Rule 1 (w) of the CPC? 2. Whether the Civil Court had jurisdiction to review the orders of the Bar Council?
Ratio Decidendi: 1. The Court interpreted Order 43, Rule 1 (w) and Order 47, Rule 7 (1) of the CPC harmoniously, holding that an appeal under Order 43, Rule 1 (w) could only be filed on the limited grounds specified in Order 47, Rule 7 (1) before the amendment in 1976. 2. The Court held that the Civil Court had jurisdiction to review the orders of the Bar Council if the respondent could establish that he was denied a reasonable opportunity to defend himself in the disciplinary proceedings and that the impugned orders were a nullity and without jurisdiction.
Final Decision: The Court allowed the appeal/revision, set aside the orders of the Trial Court dated 12th May, 1975 and 14th April, 1975, and directed the Trial Court to decide issues 5 and 13 together after giving opportunity to the parties afresh in the light of the observations made in the judgment.
K. C. AGRAWAL, J.:- This appeal under Order 43, Rule 1 (w) of the Civil P.C. has been preferred by the Bar Council of India against the judgment of First Additional Civil Judge, Kanpur, dated 14th August, 1975, reviewing an order deciding issue No. 13 against the respondent No. 1.
2. The facts of this case briefly stated are these. Sri Manikant Tewari, respondent No. 1, was enrolled as an Advocate in the Bombay High Court in December, 1946 and after having practised for a short time within the jurisdiction of that Court, he shifted to Kanpur, where, admittedly, he has been ever since practising within the jurisdiction of Bar Council of Uttar Pradesh. On 23rd July, 1962, M/s. Ram Lal and Bros. through Sri Kunj Behari Lal Tandon and Brij Behari Lal Tandon made the complaint of professional misconduct under Section 35 of the Advocates Act against respondent No. 1. The case was referred by the Bar Council of Uttar Pradesh to its Disciplinary Committee for necessary action. Respondent No. 1 did not appear on 21st Feb. 1965, when the case was taken up by the Disciplinary Committee. The Committee, however, thought that as his presence was necessary, it adjourned the case, which was fixed thereafter for 1st August, 1965. Respondent No. 1 did not appear even on that date. Having found the respondent No. 1 guilty of professional misconduct, the U.P. Bar Council suspended him from practice for one year.
3. Against this order of the U.P. Bar Council, an appeal was preferred by respondent No. 1 before the Bar Council of India. On 30th April, 1966, the Bar Council of India not only dismissed the appeal of the respondent No. 1 but also modified the punishment by enhancing the period of suspension from one year to five years. The respondent No. 1 appears to have preferred an appeal to the Supreme Court under Section
38 of the Advocates Act, 1961 against the said Judgment which was dismissed for non-prosecution on 30th March, 1967. The order of the Supreme Court is reproduced below:-
"The matter abovementioned being called on for orders before this Court on the 30th day of March, 1967. This Court in the absence of the parties DOTH ORDER that the appeal above-mentioned by and (Sic) prosecution.
Witness the Honble Mr. Koka Subba Rao, Chief Justice of India at the Supreme Court, New Delhi, the 30th day of March, 1967."
4. Challenging the validity of the order of suspension passed by the U.P. Bar Council and that of the Bar Council of India, respondent No. 1 filed Suit No. 176 of 1970. In this suit, he impleaded a number of persons as defendants including those two against whom allegations of mala fides were levelled by respondent No. 1 in petting respondent No. 1 suspended as defendants 16 and 17. The respondent No. 1 had claimed the reliefs of injunction as well as for damages.
5. The suit was contested by the Bar Council of India on a number of grounds.
6. On the pleadings, the Trial Court framed a number of issues. Out of those issues, the two which are required to be mentioned at this stage were issues 5 and 13, which are as under:-
"5. Whether defendant No. 16 influenced the decisions of the disciplinary committee of defendants 4 and 8 ?
13. Has court no jurisdiction to try the suit ?"
7. The trial court took up issue No.13 as a preliminary issue. Holding that the Civil Court had no jurisdiction to try the suit, this issue was decided against respondent No. 1 on 12-5-1975. Decision of this issue was soon followed by an application for review under Order 47, Rule 1 of the Civil P. C. by the said respondent. The review application was contested by the appellant. By the order impugned by means of this appeal, the Trial Court held that the court had committed a mistake apparent on the face of the record by deciding issue No. 13 against respondent No. 1. In that view of the matter, it recalled the earlier decision and passed the following order:-
"The application is allowed, the finding dated 12-5-75 on issue No. 13 and the order of the same date di
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