Inexperienced advocates should not face punitive actions for errors made in their duties, provided there is no intent to mislead.

JUDGMENT

Dated this the 11th day of February 2021 A.Muhamed Mustaque, J.

The petitioner, a budding lawyer of this Court and District Judiciary being faced with the dilemma of an impending action against her by the Family Court, Ernakulam, has approached this Court with this original petition.

2. The petitioner was appointed as an Advocate Commissioner to record evidence of the parties in matrimonial proceedings. The matrimonial dispute is between husband and wife. The wife was working abroad, and she was represented by her power of attorney. The power of attorney holder of wife sworn an affidavit in lieu of chief examination. But, on the date of commencement of evidence, the wife presented herself for evidence. The petitioner being a budding lawyer, had no idea to deal with such a situation, started recording the evidence of wife, at that time, the learned counsel for the husband opposed the recording of such evidence. The learned counsel for the husband appears to have informed the petitioner that the affidavit in lieu of chief examination cannot be acted upon and the chief examination had to be recorded and also she requires a longer time to cross-examine the wife. The wife appears to have come down for a short break of three days. Realising that the entire cross examination cannot be concluded, the wife sought backout from giving evidence.

3. Instead of reporting the matter in the proper perspective as above, the petitioner took the stand that no evidence was adduced on the side of wife. The husband filed a petition to obtain a copy of the testimony recorded by the Advocate Commissioner. By Ext.P1 order, the Family Court directed the petitioner to place the deposition recorded before the Family Court. The petitioner filed an affidavit narrating that she had not recorded the statement of the wife. This, in fact, provoked the Family Court to initiate proceedings leading to Ext.P6 impugned order. The Family Court noted in the impugned order itself that the petitioner had taken contradictory stands through different affidavits and, therefore, the petitioner should be proceeded against.

4. We are not adverting to the claims and rival claims in this matter. The dispute between the parties has come to an end. What remains now is an episode relating to the omissions and commissions attributable to the petitioner.

5. We directed the petitioner to be present before this Court. We were not happy with the petitioner's handling of the entire matter. We, therefore, gave her an opportunity to disclose what exactly had transpired on the date of recording of evidence. She has sworn to an affidavit on 09.02.2021.

6. We are satisfied with the explanation. However, we note that the petitioner has again chosen to blame the counsel appearing for the husband. We find such conduct on the part of the petitioner is totally unwarranted. Anyhow, having perused the affidavit sworn to by the petitioner, we are of the view that all that had happened was due to the inexperience of the petitioner at the Bar. One should not be penalised for actions caused due to their inexperience. However, at the same time, we need to caution the petitioner that being an officer of the Court, she is expected to act in such a way that befits the gown one adore. As the saying goes: To err is human and to admit to it is more human. Owning to one's error is the civility that a human should possess. We conclude by disposing this original petition ordering that the proposed action against the petitioner pursuant to the impugned orders, shall be dropped. Accordingly, the original petition is disposed of ordering so.

Sd/-

A.MUHAMED MUSTAQUE JUDGE Sd/-

C.S.DIAS JUDGE ms APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER DATED 18.5.2018 IN I.A.

NO.1275A OF 2017 OF THE LEARNED FAMILY COURT, ERNAKULAM.

EXHIBIT P2 TRUE COPY OF THE DEPOSITION RECORDED ON 5.3.2018 OF THE PETITIONER HEREIN BY THE LEARNED FAMILY COURT, ERNAKULAM.

EXHIBIT P3 TRUE COPY OF THE DEPOSITION RECORDED ON 13.4