# Dayal Singh v. Debi

- **Citation:** [1955] 1 S.C.R. 490
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Bench:** MuKHERJEA, S. R. DAs, VIVIAN BosE, Ghulam Hasan, Jagannadhadas
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dayal-singh-v-debi-353
- **Pages:** 11

## Headnote

Supreme Court Rules-Order IV, rule 30-Advocau-Supreme
Court-Agreement between him and his client for sha,.ing recoveries
in the legal
proceedings-Whether
professional
misconduct-Pro-
--(
fessional conduct of Advocate of Supreme Court in vietv of his special
privikges and status.
The act of. an Advocate of the Supreme Court in entering into
an agreement with a client whereby the client undertakes to pay
him a part of anY recoveries he might make in the legal proceedings in respect of which he is employed, amounts to professional
misconduct and makes him liable for disciplinary
action
and . to
this extent the ordihary legal rights of contract do not apply to
an Advocate as such.
k
Such agreements are not permissible to advocates
under
the
rigid rules of conduct enjoined by the profession so that their
integrity, dignity and honour may be placed above the
breath of
scandal.
An Advocate of the Supreme Court is governed by special and
rigid rules of professional conduct expected of and
appiied
to
a
specially
privileged class of persons who because of their privileged
status are· subject to certain disabilities
which do
not attach
to
other men and which do not even attach to an
Advocate
while
acting othen vise than as Advocate.
An Ad· rocate is therefore bound to conduct himself in a
manner befit ting the high and honourable
profession the privileges
of which he enjoys and if he departs from the high standards which
that profession has set for itself and demands of him he renders
himself liable to disciplinary action.
Original (Disciplinary) Jurisdiction.
In the matter of summons issued to Mr. 'G' under rule 30 of
Order IV, Supreme Court Rules, to show cause to this Court why ~l
disciplinary action should not be taken against him.
The material facts
of the· case
are stated in the .Judgment;
Order IV rule 30 of the Supreme Court rules runs as follows :-
"Where on the
complaint of any
person or
otherwise the
Court is of opinion that an Advocate has been guilty of misconduct
or of conduct unbecoming an Advocate, the Court may debar him
from practising before the Court either permanently or for such
period as the Court may think fit, and the Registrar, shall there·
upon report his name to his own High Court" ;
-
-
-
S.C.R.
SUPREME COURT REPORTS
491
~'
"Provided that the Court shall in the first
instance direct
a
summons to issue returnable before the Court or before a Special
Bench to be constituted by the Chief Justice, requiring the Advocate to show cause against the matter alleged in the summons, and
the summons shall, if possible, be served personally upon him with
copies of any affidavit or statement before the Court at the
time
of the issue of the summons."
,
G in person :
Amarnath was the client.
He had
admittedly a just cause
and the High. Court has held that the terms came from him and
were accepted out of compassion.
I submit that in such
circumstances
the
agreement
was
neither
professionally
nor
morally
improper. English law of Champerty and Maintenance does not
apply to India; Please see Ram Coomar Coondoo v. Chundet· Canto
Mookerjee (1876) LR. 4 I.A. 23; Bhagwat
Dayal Singh v. Debi
Dayal Sahu ( 1907) LR. 35 I.A. 48.
Prior to 1926
there
was a
distinction between Pleaders,
Advocates
and Barristers.
Barristers
~ could not enter into contractual relationship.
They could not sue
or be sued: Deo Kisen v. Budh Prakash (1833) I.LR. 25 All. 509
F.B. This was in accordance with the English rules of professional
etiquette among Barristers, but
Pleaders
and
Advocates
could
enter into contractual relations.
Contingent fees
have been known
and recognised in India at any rate since 1814. Please see sec. 25,
Bengal Regulation XXVII of 1814, and sec. 52, Bombay Regulation
II of 1827.
Contractual rights were extended
in
1846.
Please
see Pleaders
Act I of 1846 ; Please
see
sec. 7 as
to fees.
But
agreements had to be registered with the Court to be enforceable.
Wide changes in all these matters came about
by legislation
in
1926
(Legal Practit

## Text

'490
SUPREME COURT REPORTS
IN THE MATTER OF Mr. 'G',
A SENIOR ADVOCATE OF THE
SUPREME COURT.
[1955}
[MuKHERJEA, S. R. DAs, VIVIAN BosE, GHULAM
HASAN, and JAGANNADHADAS JJ.]
Supreme Court Rules-Order IV, rule 30-Advocau-Supreme
Court-Agreement between him and his client for sha,.ing recoveries
in the legal
proceedings-Whether
professional
misconduct-Pro-
--(
fessional conduct of Advocate of Supreme Court in vietv of his special
privikges and status.
The act of. an Advocate of the Supreme Court in entering into
an agreement with a client whereby the client undertakes to pay
him a part of anY recoveries he might make in the legal proceedings in respect of which he is employed, amounts to professional
misconduct and makes him liable for disciplinary
action
and . to
this extent the ordihary legal rights of contract do not apply to
an Advocate as such.
k
Such agreements are not permissible to advocates
under
the
rigid rules of conduct enjoined by the profession so that their
integrity, dignity and honour may be placed above the
breath of
scandal.
An Advocate of the Supreme Court is governed by special and
rigid rules of professional conduct expected of and
appiied
to
a
specially
privileged class of persons who because of their privileged
status are· subject to certain disabilities
which do
not attach
to
other men and which do not even attach to an
Advocate
while
acting othen vise than as Advocate.
An Ad· rocate is therefore bound to conduct himself in a
manner befit ting the high and honourable
profession the privileges
of which he enjoys and if he departs from the high standards which
that profession has set for itself and demands of him he renders
himself liable to disciplinary action.
Original (Disciplinary) Jurisdiction.
In the matter of summons issued to Mr. 'G' under rule 30 of
Order IV, Supreme Court Rules, to show cause to this Court why ~l
disciplinary action should not be taken against him.
The material facts
of the· case
are stated in the .Judgment;
Order IV rule 30 of the Supreme Court rules runs as follows :-
"Where on the
complaint of any
person or
otherwise the
Court is of opinion that an Advocate has been guilty of misconduct
or of conduct unbecoming an Advocate, the Court may debar him
from practising before the Court either permanently or for such
period as the Court may think fit, and the Registrar, shall there·
upon report his name to his own High Court" ;
-
-
-
S.C.R.
SUPREME COURT REPORTS
491
~'
"Provided that the Court shall in the first
instance direct
a
summons to issue returnable before the Court or before a Special
Bench to be constituted by the Chief Justice, requiring the Advocate to show cause against the matter alleged in the summons, and
the summons shall, if possible, be served personally upon him with
copies of any affidavit or statement before the Court at the
time
of the issue of the summons."
,
G in person :
Amarnath was the client.
He had
admittedly a just cause
and the High. Court has held that the terms came from him and
were accepted out of compassion.
I submit that in such
circumstances
the
agreement
was
neither
professionally
nor
morally
improper. English law of Champerty and Maintenance does not
apply to India; Please see Ram Coomar Coondoo v. Chundet· Canto
Mookerjee (1876) LR. 4 I.A. 23; Bhagwat
Dayal Singh v. Debi
Dayal Sahu ( 1907) LR. 35 I.A. 48.
Prior to 1926
there
was a
distinction between Pleaders,
Advocates
and Barristers.
Barristers
~ could not enter into contractual relationship.
They could not sue
or be sued: Deo Kisen v. Budh Prakash (1833) I.LR. 25 All. 509
F.B. This was in accordance with the English rules of professional
etiquette among Barristers, but
Pleaders
and
Advocates
could
enter into contractual relations.
Contingent fees
have been known
and recognised in India at any rate since 1814. Please see sec. 25,
Bengal Regulation XXVII of 1814, and sec. 52, Bombay Regulation
II of 1827.
Contractual rights were extended
in
1846.
Please
see Pleaders
Act I of 1846 ; Please
see
sec. 7 as
to fees.
But
agreements had to be registered with the Court to be enforceable.
Wide changes in all these matters came about
by legislation
in
1926
(Legal Practitioners' Fees Act, 1926). Barristers, Attorneys,
Advocates, Pleaders all came within the definition of Legal Practitioners, who may now sue and
be
sued and may enter into and
may settle with their clients the terms of their engagement
and
the fees
to
be paid. Section 3 of the Act is sufficiently wide to
include the impugned agreement with Amarnath.
Contingent fees
have been known in India for more
than a century. In Madras
in the case
of
Achamparambath Cheria
Kunhammu v. William
Sydenham Gantz (1881) I.LR. 3 Mad. 138 F.B. a contrary
view
• , was expressed but Madras had framed a special rule
by
Circular
Order of the Sudder Adulet dated 18-8-53.
In Bombay a contrary
view was also taken:
In re Bhandara (1901) 3 Born.
LR.
102
F .B.
But the contract of the Advocate there was clearly improper
and facts of that case were totally
different from the facts of the
present case.
The observations of the Learned Chief Justice
were
obiter. In Bombay, Inampatra,
which was in substance a fee payable and contingent on success has, however, been held enforceable :
..> .•
Shivram
Hari v. Arjun
(1881)
I.LR. 5 Born.
258 ·
Pa,.sh1·am
Vaman v. Hiraman Fatu (1884) I.L.R. 8 Born. 413.
'
GHULAM
HASAN J.:
In U.P.
they
were
referred
to as
Shukritana. G : In the Punjab they were known as "back fees"
13-87 S. C. India/59
1954
In the matter of
Mr. 'G' a Senior
Advocate of the
Supr1me Court.
In
th~ mallerfof
Mr. 'G' a Senfor
Advocatt of the
Supreme Court.
•
i92
SUPREME COURT REPORTS
[1955]
and wore held valid an<l enforceable : 5 P.R. 1878 F.B. Beechy v.
Paiz fo..fahomed until the Full Court's decision
by majority disapproved of the practice :
61 P.R.
] 907
Ganga v. Devi Das.
But
strong reasons in support of the practice \vill he found in the judgments
of Lalchand & Chatterjee JI. in 61 P.R. 1907.
Contingent
fees in a just cause have found approbation in England. Please see
Wiggi1ls v. Lavy (1928) 44 T.L.R. 721 ; Rich v. Cook. (1900) I lO
L.T.J.O. 94 C.A. per Lord Russell L.J.
)
In America, contingent fees
are expressly
recognised
in the
-('
canons of professional ethics of
the
American
Bar
Association
(Canon 12) ; See "Legal Ethics" by Henry S. Drinker (Columbia
University Press page 99) and Hoffman's
Resolutions (Ibid at page
343). The Supreme Court of the U.S.A. in several cases has held
such agreements as enforceable.
-
I.. Wylie v. Coxe 14 L. Ed. 753.
2. Barnes v. Alexander 58 L. Ed. 53(}c
3. McGowan v. Parish 59 L. Ed. 955.
4. Morris v. Giddi1Jgs 29 L. Ed. 403.
5. Ball v. Halsell 40 L. Ed. 622.
6. lnga.wll v. Coram 53 L. Ed. 208.
The substance of the American law v.rill be found 1n the foot
note to McMicken v. Perin, 15 L. Ed. 504.
The High Court based its decision in the present case (1954,1
56 Bombay L.R. 838 in re K.L. G on a question of Public Policy as
void under sec. 23 of the Contract Act, but Public Policy has been
held to be a treacherous ground for legal decision [Lord Davey in
Janson v. Driefontein Consolidated Mines fl9011 A.C. 484 at page
500.]
GHULA?.t: HASAN J. : Public Policy is an "unruly horse."
MuKHERJEA J.: You need not press this point.
M. C. Setalvad, Attorney-General for India ( G. N. /oshi and
P. G. Gokhale with him) Conditions of the Bar in America and in
India arc very different.
American authorities have therefore no
relevance (Please sec observations of Rattigan J. in 61
P.R.
1907
Ganga l?.arn v. Devi Das). An agreement though not void in laVv·~
may nevertheless amount to professional 1nisconduct.
01!r Courts
have held that agreeing to a share in the fruits of litigation
is
unprofessional. Please
see (1874) 21
W.R. 297: In the matter of
Moung 1-ltaon Oung, an Advocate at Rangoon; (1900) 4 C.L.J. 259
-In the matter of an Advocate; (1901) 3 Bom. L.R. 102-/n re
N. F. Bh(Jndara and the majority judgments of the Full Court in 61
P. R. of 1907.
The facts in the case in 3 Born. Law Reporter 102
may be different but the rules
of professional conduct were clearly
laid doy.>n in the observations
of Sir Lawrence
Jenkins.
Rigid
notions of Champecty and Maintenance are not applicable to India
but such contracts are prohibited by professional rules of conduct.
G. in reply :
The law cannot approbate and reprobate in the
same breath.
The Rulings earlier than
the
Legal
Practitioners
-
"' .
-
-
..
S.C.R.
SUPREME COURT REPORTS
493
Fees Act of 1926 and expressing a contrary view are now obsolete.
A contract
which is not vitiated by
fraud, misrepresentation
or
5mne illegality or is not void
under any recognised head of public
policy, cannot amount to professional
misconduct. The misconduct
must fall within the definitions and limitations
of misconduct laid
down cJy the Bombay High Court in (1934) 36 Bom. L.R. 1136 F.B.
Sir famshed Byramji Kanga v. Kaikhushru
Bomanji
Bharucha;
and Ana11t Tlislznu Chitre v. Pitambrrdas Goculdas "Afehta.
)-
'G' in person.
Jf. C. Setaivad, Attorney-General for India ( G. N.
foshi and P. G. Gokhale, with him) for the Hon'ble
Chief Justice and other Hon'ble Judges of the Bombay
High Court.
1954. May 27. The Judgment of the Co11rt was
delivered by
BosE J.-This matter arises out of a summons issued
to Mr. G, a Senior Advocate of this Court under Order
IV, rnle 30, of the Supreme Court Rules, to show cause
why disciplinary action should not be
taken against
him.
Mr. G was called to the Bar in England and was
later enrolled as an Advocate of the Bombay High Court,
He is also an Advocate of this Court. On 20th December, 1952, he entered into an agreeme~t with a client
whereby the client undertook to pay him 50 per cent.
of any recoveries he might make in the_ legal proceedings in respect of which he was engaged. On this being
reported to the High Court the matter was referred to
the Bombay Bar Council and was investigated by three
of its members under section 11 ( 1) of the Bar Councils
Act. They recorded their opinion that this amounted
to professional misconduct. The
High Court agreed
dnd suspended Mr. G from practice as an Advocate of
the Bombay High Court for six months. The learned
Judges considered that they had no power to affect his
position as an Ad\'Ocate of this Court, so directed that
a copy of their judgment be submitted to this Court to
enable this Court to take such action on it as it thought
fit.
Acting on this report this Court issued
notice to
the petitioner under Order IV, rule 30, to show cause
w11y disciplinary action should not be taken against him.
About the same time Mr. G filed a petition for a writ
In the matter of
Afr. 'G', a Senior
Advocate if /,e
Supreme Court
1954
In the matter of
Mr. 'G', a Senior
Advocate of th1
Supreme Court.
Bose ].
494
SUPREME COURT REPORTS
[1957}
under article 32 of the Constitution. We are confining
ourselves
111 this order to the matter raised
111 the
summons.
There 1s no dispute about the facts. They are set out
in Mr. G's petition under article 32 and are as follows :
On the 23rd of July, 1951, Mr. G's client is said to
have
entered
into
an agreement
with
the
Baroda
Theatres Ltd., for work on a picture which they intended
to
produce.
The remuneration agreed on was
Rs. 15,000. Of this Rs. 3,000 was paid at once and
the balance, Rs. 12,000, was to be paid on the completion of the picture. It 1s said that at the date of
the dispute the Baroda Theatres admitted that Rs.
9,400 was due, but as they did not pay up, the client
consulted Mr. G about the best way to recover his
money and wanted to know what the expenses and fees
would be. After examining the matter in detail and
talking it over with his client, Mr. G advised him that
two courses were open to him.
First, there was a civil suit. He said the cost of this
would be about Rs. 800 for Court fees
and expenses
and about Rs.
1,250 for fees. The other alternative
was winding up proceedings. The client was told that
in these the Court fees would be lower but Mr. G's fees
would. have to be higher as winding up proceeding are
usually protracted.
The client preferred the latter course but said that
he could not pay more than Rs. 200 towards the
expenses and as
regards the fees he said he was too
poor to pay and so made a proposal which he reduced
to writing. It is embodied in the following letter dated
20th December, 1952, addressed to Mr. G :
"I hereby engage you with
regard
to my
claim
against the Baroda Theatres Ltd., for a sum of Rs.
9,400 (balance due to me).
Out of the recoveries you may take 50% of the
amount recovered.
I
will
by
Wednesday deposit
Rs.
200
111 your
account or give
personally towards
expenses."
Mr. G said that he was unwilling to work on these
terms but when he was pressed to do so :md when he
'
-
.I •
'
-
0
-
S.C.R.
SUPREME COURT REPORTS
495
realised that unless he agreed the client would probably
lose a just claim he reluctantly agreed.
Rs. 200 was thereupon paid towards expenses and
Mr. G. at once entered into correspondence with the
solicitors of the Baroda Theatres Ltd. A winding up
petitiol'1 was drawn up and declared but was not filed
because the matter was
compromised
at
that stage.
The Baroda TheaHes undertook to pay Mr. G's client
Rs. 6,400 in full satisfaction of his claim.
The client then paid Mr. G a further Rs. 800. (He had
already
paid
Rs. 200,
part of which was
spent for
expenses).
Mr. G claimed
the
balance
which
was
roughly Rs. 2,200.
We are not concerned with the proceedings in the
Bombay High Court and before the Tribunal of the
Bar Council in the summons matter with which we are
dealing at the moment, as we are acting here under
Order IV, rule 30, of the Rules of this Court. The only
question is whether, on the facts and circumstances set
out above (all of which are admitted by
Mr. G), his
engagement of 20th
December, 1952,
amounts to prnfessional misconduct.
Mr. G argued the matter at length, and to his credit
be it said, objectively and with restraint, but it is
not
necessary to cover the wide field he did because we are
not concerned with ordinary rights of contract, nor
with ordinary legal rights, but with the special and
rigid rules of professional
conduct expected
of and
applied to a specially privileged class of persons who,
because of their privileged status,
are subject to certain disabilities which do not attach to other men and
which do not attach even to them in a non-professional
character. To use the language of the Army, an Advocate of this Court is expected at all times
to comport
himself in a manner befitting his status as an "officer
and a gentleman." In the Army it is a military offence
to do otherwise (see section 45 of the Army Act, 1950)
though no notice would be taken of ungentlemanly
conduct under the ordinary law of the land, and none
m the case of a civilian. So here, he is bound to conduct himself m a manner
befitting the high and
In the matter of
Mr. 'G', a Stnior
Advocate of th1
Suprem1 Court.
1954
In t.11e matter of
.Afr. 'G', a St11i~r
Advocate of the
SujJreme Court.
Bose J.
496
SUPREME COURT REPORTS
[1955]
honourable profession to whose privileges he h;is so
long been admitted ; and if he departs from the high
standards which that profession has set for
itself and
demands of him in professional matters, he is liable to
disciplinary action.
Now it can be accepted at once that a contract of
this kind would be legally unobjectionable if no lawyer
was involved. The rigid
English Pules
of
champerty
and maintenance do not apply in India, so if this agreement had been between what we might term third
parties, it would have been legally enforceable and good.
It may even be that it is good
in law and enforceable
as it stands though we do not so decide because the
question does not arise ; but that was argued and for
the sake of argument even
that can he conceded. It
follows that there is nothing morally wrong, nothing
to shock the conscience, nothing against public policy
and pnblic morals in such a transaction per se, that fa
to say, when a legal practitiorH" Is not concerned. But
that is not the question
we have to consi<ler.
However much
these
agreements may
be open to other
men what we have to decide
is whether they are
permissible under the rigid
rules of conduct enjoyed
by the members of a very close professional
preserve
so that their integrity, dignity and honour may be
placed above the breath of scandal. That is part of
the price one pays for the privilege of belonging to a
kind of close and exclusive "dub" and enjoying in it
privileges
and immunities
denied
to
less
fortunate
persons who ate outside its fold. There is no need to
enter its portals and there is no need to stay, but
having entered and having elected to stay
and enjoy
its amenities and privileges, its rules must be obeyed
or the disciplinary measures which it is entitled to
take
must be
suffered.
The real question. therefore
is whether this kind of conduct is forbidden
to the
elect or whether, if it was once forbidden, the ban has
since been removed,
either
directly or by implication,
be legislative action.
Now it was not disputetl that, so far as English
Barristers are concerned,
this
sort of agreement was
once taboo both in England and in India. Even when
·(
--
-
• •
......
\
'
S.C.R.
SUPREME COURT REPORTS
497
they worked in the mofussil in India and did the kind
of work that would be done by solicitors in England
and in the Presidency Towns in' India, they __ could not
enter into an engagement of this kind, for even
solicitors in England are forbidden
from making such
bargains (See
C01 Jery's
Law
Relating to
Solicitors,
fourth · edition, page 342). But, it was
argued, this
rule only applied to members of the English Bar, and
in any event it was abrogated in India in 1926.
We will first examine whether there was a difference
between Barristers
and other classes of lawyers.
This
point was raised in the Punjab in 1907 but was
rejected by a majority of seven- Judges to two in a Full
Bench of nine Judges in Ganga J1-am v. Devi Das(J).
-~ But it is to be observed that even the two dissenting
Judges agreed that an engagement of the present kind
was not open
to a member of the Punjab Bar. Lal
Chand J. (who dissented) said at page 331 :
"I am in. perfect accord with the Hon'ble Chief
Judge that stipulation to receive a share in the 1·esult
of the litigation is
different from a stipulation to be
~ paid a fee contingent on success."
The other dissenting Judge,
Chatterji
J. agreed
with him but even as regards the practice which these
two learned Judges thought permissible at the date of
-
their decision, Chatterji J. said at page 299 :
"It must not be supposed, however, that I am in
favour of the practice. I should on the whole prefer
its abolition ...... "
We agree with Chitty J. at page 326 that there was
)
RO justification even
at that date for seeking to apply
one set of rules to one branch of the profession and
another to another. As he said-
"What is right or wrong for the one must be right
or wrong for the other,"
or, as Sir Lawrence Jenkins C. J. put it in In re.
N. F. Bliandara( 2 ),
"For common honesty there must be no sliding
scale even in th,e mofussil. ............. "
ti) 61 P.R. (of 1907), p. ~So.
(2) 3 Dom. L. R. 102 at 111.
1954
In the matter of
Mr. 'G
1
, a Senior
Advocatt of the·
Supreme Court.
Bose J.
Jn the matter of
Mr. 'G', a Senior
Advocate of the
Suprnnt Court.
Bose].
498
SUPREME COURT REPORTS
(1955] ......
Reading "standards of professional conduct" for the
word "honesty", the quotation is
apt here.
In any
case,
the decisions to which we shall refer deal with
"Advocates"
and even where these
"Advocates"
were
Barristers
the matter touched
them
as
"Advocates"
of an Indian High Court and not because of their
,
special status as
Barristers. It is true that at one time
-<
Advocates were mainly Barristers, but that was not
always the case and the rules laid down in these decisions governed all "Advocates," whether Barristers or
otherwise.
The learned Judges in the Punjab Record case collected all the
available
authorities up
to
the
year
of their decision and they show that this
kind ni
agreement was condemned in
Calcutta
in
1874 and ,.,._
1900: In the matter of Mating H!oon 01111g(') and In tle
matter of an Advocate of the Calcutta High Court(') ; in
Bombay in 1901:
In re. N. F. Bhandara(') ; and in
Madras in 1881 and again in 1939 : Achamparambath
Cheria Kunhammu v. William Sydenham Canty(•). and
In re. an Advocate of the Madras High Court('). As
the Bombay High Court is the one in which Mr. G
normally practices and as the engagement was entered
.I'
into in Bombay,
we
think it
proper to
quote
the
following passage at page 113 from the judgment 111
the Bombay case (In re. N. F. Bhandara) :
"I consider that for an Advocate of this Court to
stipnlate for, or receive,
a remuneration proportioned
to the results of litigation or a claim whether in the
form of a share
in the subject-matter,
a percentage,
or otherwise,
is highly
reprehensible, and I think it
should be clearly understood
that whether his practice '
be here or in the mofussil he will by so acting offend
the rules of his profession and so render himself liable
to the disciplinary jurisdiction of this Court."
Mr. G argued that even if this was once the law,
section 3 of the Legal Practitioners (Fees)' Act, 1926,
(Act XXI of 1926)
changed it and that now every
legal practitioner is competent to settle the terms of
(rJ 21 W.R. 097.
{4J l.L.R. 3 Mad. 138.
(•1 4 Cal. "·1· •59.
(si l.L.R. 1940 Mad. 17.
(3) 3 Born. L. R. 10~ at 113.
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S.C.R.
SUPREME COURT REPORTS
499 '
his engagement and his fees by private agreement with
his client. This, Mr. G said, entitles him to enter into
any agreement which the law permits in the case of
ordinary
persons.
Legal
practitioners,
according
to
him, are now governed by the law of contract and not
by rules imported from other countries with different
ideas and different social customs and imposed on the
Bar in India
mainly by English
Judges.
We do not
agree, because this Act is not concerned with professional
misconduct. That is
dealt with by
the Bar
Councils Act which was passed in the same year (1926).
The Bar Councils Act makes no modification in the
disciplinary jurisdiction of the High Court or of the
sense
in which
professional
misconduct
had
been
understood throughout India up to that time.
The only Indian decision which Mr. G could quote
in his favour was Muthoo Lall v. Budree Pershad (1).
But that
was not a case
in which disciplinary action
was being taken against a legal practitioner for professional
misconduct. The question
there was whether
an agreement which
might be objectionable on the
ground of professional
misconduct could be enforced
bu suit. Two Bombay decisions on which Mr. G. relies
are to be distinguish~d in
the same
wav : Shivram
Hari v. Arjun(•) and Parshram
Vaman
~-
Hiraman
Fatu (1 ). Whether these cases were rightly decided or
whether they would also be hit on the ground of public
policy as Chitty J. thought of a similar matter in the
Punjab Record case,
is something which does not arise
for decision
here.
It is
enough
to say that those
cases
are
distinguishable
on
the
ground
that the
Judges
there were not considering a case of disciplinary action.
Mr. G. relied on the practice in some of the American
States where an agreement by an attorney to
purchase
part of the subject-matter of the litigation
is
upheld.
The class of cases to which he refers are summarised
in a footnote to McMicken v. Perin('). He relied on
this to show
that contracts of this kind cannot
be
dismissed as reprehensible or morally wrong. We do
not propose to enter into this because what may be
(1) I N,W.P.H.C.R. l.
(3) l.L.R. 8 Bom. 413.
(2) I.L.R . .'i Born. 258.
(4) 15 Law. fain. 504 & 505.
1954
In :he matter of
Mr. •G', a Senior
A.avocate of tM
Supreme Court.
Bose].
1954
. n the maUer of
.A1r.' G', a St11iuY
Advocate of t,~t
Supreme CfJurt.
]Jose J.
• 500
SUPREME COURT REPORTS
[1955J
harmless in one country may not be so m
another.
We will however pause to observe that Rattigan J .
collected a large
volume
of
American
authority
at
pages 318-321
of his
opinion in Ganga Ram v. Devi
Das( 1 )
to show that even in those States where this is
permitted it
is
regretted
and
frowned
upon.
For
historical reasons
obtaining
there,
the practice
may
have come to stay however much it is regretted ; but
111
1937 the American Bar Association adopted the
following cancm of Professional Ethics :
"The lawyer should not purchase any
interest in
the subject-matter of the litigation which he is conducting.''
In India history tells the converse tale. We see no
reason why we should import what many feel
is
a
mistake, even in the country of its origin, from another
country and seek to perpetuate their error here when
a sound and 'healthy tradition to the contrary already
exists in our Bar. The reasons
for exacting these high
standards in this
country, where ignorance and illiteracy are the rule, are even more important than rhey
are in England where the general levd of education is
so much higher. We hold that the conduct of Mr. G
amounts to professional misconduct and as it was
committed in the face
of the Bombay view expressed
hy Sir Lawrence · Jenkins in 1901 disciplinary action is
called for.
Now had Mr. G been as restrained and objective in
his petition under article 32 as he was while arguing
the case before us, we might have considered a warning enough seeing that this is the first time this
question has
been considered in this Court, but, in
view
of his
personal attacks
on
the learned Cht:f
Justice in his petition where he has questioned his
good faith and attributed malice to him, we arc not
able to deal with him as lightly. We therefore direct
that he be
suspended from practising in this Court
for a period which will expire on the same date. as
his
period of suspension in the Bombay High Court.
There will be no order about costs.
Order accordingly-.
(t) 61 P.R. (of 1go7), p. 28o
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