# MANAK LAL v. DR. PREM CHAND

- **Citation:** [1957] 1 S.C.R. 575
- **Court:** Supreme Court of India
- **Decided:** 1957
- **Case number:** Civil Appeal No. 246 of 1956
- **Bench:** Venkatarama Ayyar, S. K. DAs, Gajendragadkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manak-lal-v-dr-prem-chand-1355
- **Pages:** 20

## Headnote

575
Tribunal-Mefnber having bias against party-Whether tribu·
~1a"t improperly constituted-Waiver--,_lf! hat amounts
to-Effect of
waiver-Failure to examine a witness-Witness no better
than
acComplice-Effect-Professional misconduct
by
advocate-Measure
·of punishment.
r
P filed a complaint of professiOnal misconduct against M, an
advocate of the High Court of Rajasthan.
The Chief Justice
appointed a tribunal under the Bar Councils Act for enquiry into
the complaint.
C, a senior
advocate, . was appointed chairman
of the tribunal.
C had appeared
once · for
P before
the
trial
Court in the case out of which the complaint arose. No objection
was
raised
as
to
its
constitution before
the
tribunal.
The
tribunal found M guilty of having got a false stay order in favour
of his clients written
by the clerk of the Court by improper
means. The High Court concurred in this finding arid directed
the' removal of M's name from the rolls.
It was contended on
behalf of M that the tribunal was not properly constituted.
Held~ that the collstitu'.tion of thC ··tribunal suffered from a
serious infirmity in that C was appointed its member and acted
as its chairman.
It is well settled
that every member of
a
tribunal that is called upon to try issues in judicial or quasi-judicial
proceedings must be able
to act judicially; and it is
of
the
<:sseil.ce
.of _ judicial
decisions
and
judicial administration
that
judges should be able to act impartially, objectively and without
~ny bias. In such
~ases the test is not whether in fact a . bias
has affected -the judgment; the test always is and must be whether
" litigant could reasonably apprehend that a
bias
attributable
to ~ member of_ the tribunal might have operated against him in
the final decision of the tribunal.
It is in this sense that it is
<>ften'· ~aid' that·.· justice must not on.ly be · done bu·t must also ·
appeiit to ·be ·Clone.
-
1
, Frome Unit<d Br<weri<J Co. ~· Bath fusticu [1926] A.'C, 586,
Rex v. Sussex
fustices,
Ex parte Mc Carthy [1924] I K.' B. 256,
Rex.''v, .Esjer fustii:h;- Er 'part'e Perkins [1927] 2 K. B.' 475,
foll<>wed.
Rer· v. Williams, Ex parte · Phillips [ 1914] I K. B. 608,
<0xplained.
The' objection 'to the ·constitution:' of the · tr'bunai" can· be·
waived. · Waiver can be· inferred· from the failure of the party to
take··· the objection only if and after it is shown that the party
1957
F1hrUarY_ 6.
'
1957
Manak LIU
y.
Dr. Prem CAa11d
Gajendragadkar J.
·576
SUPREME COURT REPORTS
[ 19571
kne\v about the relevant facts and was aware of ·his right to take
the objection.
Since M kne\v that C had
appc~ued for P and
1nust be deemed to have been conscious of his legal rights, his.
failure to take the object!.on before the tribunal creates an cffectiYe bar of waiver against him.
Vyvyan v. Vyvyan (1861) 30 Eeav. 65; 54 E. R. 813 relic,! on.
Even in quasi-<:riminal proceedings all !n1portant and relevant
evidence must be laid before
the
tribunal,
but
it
is generally
for· the prosecutor to decide which witnesses are necessary for the
unfolding of the case.
No aPvcrse inference can he drawn against
the complainant's case for failure to exan1ine a V·:itncss \vho was.
no better than an accomplice.
The order of the High Court removing l\.fs name fro1n
the
:-oll of advocates is fully justified. The n1isconduct proved is of a
very serious cfiaractcr.
Disapproval of such unworthy
conduct
must be expressed emphatically as the legal profession must be
saved from persons who do not feel any hesitation
in
corruptini
public officers by unworthy and illegal nicans for the benefit of
their clients .
. CIVIL APPELLATE JURISDICTION :
Civil
Appeal
No.
246 of 1956.
Appeal by special kave from
the judgment and
order dated the NoYember 11, 1955, of the Rajasthan
High Court in Civil Misc. Case No. 3 of 1952!.
·
C. K. Daphtary, Solicitor-General of India,
Veda
Vyasa,
S. K. Kapur and N. H. Hingorani, for the
appellant.
H. f. Umrigar and T. M. Sen, for the respondent
No. 2.
1957. February 6. The Judgment of the

## Text

_Characters 0–39,952 of 45,465. This is a partial read: ask again with offset=39952 for what follows._

S.C.R.
SUPREME COURT REPORTS
MANAK LAL
v.
DR. PREM CHAND
(VENKATARAMA AYYAR, S. K. DAs and
GAJENDRAGADKAR JJ.)
575
Tribunal-Mefnber having bias against party-Whether tribu·
~1a"t improperly constituted-Waiver--,_lf! hat amounts
to-Effect of
waiver-Failure to examine a witness-Witness no better
than
acComplice-Effect-Professional misconduct
by
advocate-Measure
·of punishment.
r
P filed a complaint of professiOnal misconduct against M, an
advocate of the High Court of Rajasthan.
The Chief Justice
appointed a tribunal under the Bar Councils Act for enquiry into
the complaint.
C, a senior
advocate, . was appointed chairman
of the tribunal.
C had appeared
once · for
P before
the
trial
Court in the case out of which the complaint arose. No objection
was
raised
as
to
its
constitution before
the
tribunal.
The
tribunal found M guilty of having got a false stay order in favour
of his clients written
by the clerk of the Court by improper
means. The High Court concurred in this finding arid directed
the' removal of M's name from the rolls.
It was contended on
behalf of M that the tribunal was not properly constituted.
Held~ that the collstitu'.tion of thC ··tribunal suffered from a
serious infirmity in that C was appointed its member and acted
as its chairman.
It is well settled
that every member of
a
tribunal that is called upon to try issues in judicial or quasi-judicial
proceedings must be able
to act judicially; and it is
of
the
<:sseil.ce
.of _ judicial
decisions
and
judicial administration
that
judges should be able to act impartially, objectively and without
~ny bias. In such
~ases the test is not whether in fact a . bias
has affected -the judgment; the test always is and must be whether
" litigant could reasonably apprehend that a
bias
attributable
to ~ member of_ the tribunal might have operated against him in
the final decision of the tribunal.
It is in this sense that it is
<>ften'· ~aid' that·.· justice must not on.ly be · done bu·t must also ·
appeiit to ·be ·Clone.
-
1
, Frome Unit<d Br<weri<J Co. ~· Bath fusticu [1926] A.'C, 586,
Rex v. Sussex
fustices,
Ex parte Mc Carthy [1924] I K.' B. 256,
Rex.''v, .Esjer fustii:h;- Er 'part'e Perkins [1927] 2 K. B.' 475,
foll<>wed.
Rer· v. Williams, Ex parte · Phillips [ 1914] I K. B. 608,
<0xplained.
The' objection 'to the ·constitution:' of the · tr'bunai" can· be·
waived. · Waiver can be· inferred· from the failure of the party to
take··· the objection only if and after it is shown that the party
1957
F1hrUarY_ 6.
'
1957
Manak LIU
y.
Dr. Prem CAa11d
Gajendragadkar J.
·576
SUPREME COURT REPORTS
[ 19571
kne\v about the relevant facts and was aware of ·his right to take
the objection.
Since M kne\v that C had
appc~ued for P and
1nust be deemed to have been conscious of his legal rights, his.
failure to take the object!.on before the tribunal creates an cffectiYe bar of waiver against him.
Vyvyan v. Vyvyan (1861) 30 Eeav. 65; 54 E. R. 813 relic,! on.
Even in quasi-<:riminal proceedings all !n1portant and relevant
evidence must be laid before
the
tribunal,
but
it
is generally
for· the prosecutor to decide which witnesses are necessary for the
unfolding of the case.
No aPvcrse inference can he drawn against
the complainant's case for failure to exan1ine a V·:itncss \vho was.
no better than an accomplice.
The order of the High Court removing l\.fs name fro1n
the
:-oll of advocates is fully justified. The n1isconduct proved is of a
very serious cfiaractcr.
Disapproval of such unworthy
conduct
must be expressed emphatically as the legal profession must be
saved from persons who do not feel any hesitation
in
corruptini
public officers by unworthy and illegal nicans for the benefit of
their clients .
. CIVIL APPELLATE JURISDICTION :
Civil
Appeal
No.
246 of 1956.
Appeal by special kave from
the judgment and
order dated the NoYember 11, 1955, of the Rajasthan
High Court in Civil Misc. Case No. 3 of 1952!.
·
C. K. Daphtary, Solicitor-General of India,
Veda
Vyasa,
S. K. Kapur and N. H. Hingorani, for the
appellant.
H. f. Umrigar and T. M. Sen, for the respondent
No. 2.
1957. February 6. The Judgment of the Court was
delivered by
GAJENDRAGADKAR J.-The appellant Sri Manak
Lal
was an advocate practising at Sojat. A complaint was
filed against him under s. 13 of the Legal Practitioners
/I.ct by Dr. Prem Chand Singhvi. It was alleged that
the appellant was
guilty of professional
misconduct
and the complainant requested that suitable action be
taken against him in that behalf.
Since the appellant
was not a pledder OI a mukhtear but an advocate of
the High Court of Rajasthan, the complaint was sent
for enquiry to the tribunal nominated by the Chief
Justice of the High Court of Rajasthan under s. 10(2)
S.C.R.
SUPREME COURT REPORTS
577
of the Bar Councils Act. The tribunal held an enquiry,
recorded evidence aml came to the unanimous conclusion that the appellant-"was guilty of professional misconduct in having got a false stay order written by the
clerk by improper means and thereby he managed to
take an illegal and undue advantage for his clients and
therefore deserves to be punished for the same." When
this report was received by the High Court, the matter
was argued before the Court. In the result the High
Court agreed with the findings made by the tribunal
and directed
that the appellant >hould
be
remO\'ed
from practice. It is against this order that by Special
Leave the appellant has come to this Court.
The facts giving rise to the complaint against the
appellant are very few.
ft appears that there was
a
dispute concerning Jhalra well and certain
agricultural
plots surrounding the well between Pukhraj and others
on the one bane! and Dr. Prem Chand and others on
the other. These parties were described
in the
saicf
proceedings as Party No. 1 and Party No. 2 respectively. The appellant was the counsel for Party No. 1.
As a result of this dispute the police presented a report
in the court of the Sub-Divisional Magistrate.
Sojat,
that the dispute was likely to cause breach of peace
and suggested that proceedings
under s. 145 of the
Code of Criminal Procedure should be taken. The SubDivision:t! Magistrate drew out a preliminary order on
July 5, 1951 (Ex. A-1 ). Bv this order both the parties
were called upon to put in their written statements as
regards their claims to possession of the property in
dispute. The learned :\fagistrate also
passed an order
attaching the property in dispute pemjing the decision
of the proceedings umler s. 145. This was followed bv
another order passed on August 9, 1951, that the crojl
which was on the field shoukl be auctioned, its price
deposited in court and the land itself should be given for
cultivation to the: highest bidder for the next year.
It
appears that the hearing of the case was fixed for August
21, 1951.
Members of Party No. 1 were
aggrieved
by these orders and on
their behalf the
appellant
preferred a revision application against these orders in
the court of the Sessions Judge, Pali, on August 13,
1957
MOiia! .l.41
v.
Dr. Pr1m Chond
GaJ1ndra,(adkar ],
1957
Manak Lal
v.
Dr, Prnn Chand
Gajmdragadkar J.
578
SUPREME COURT REPORTS
[1957]
1951.
The appellant presented another petition before
the learned Sessions Judge on August 29, 1951. In this
11etition it was alleged that
rhe crop
which
stood
on the fields in question belonged to the cultivators
described as Party No. 1,
that the crop was getting
spoiled and that the cultivators would be consiclcrably
prejuclicecl if they were dispossessed from their bnds
at that stage.
On
these
allegations
the
application
prayed that an order should be passed not to auction
the crop as well as the right of future culti\·ation and
that liberty should be given to the cultivators to ~o to
the well and to look after the crop pending the final
disposal of their revision application before the learned
Sessions Judge. The learned
Sessions
judge was not
apparently inclined to grant c.r parte interim stay and
'° on the same Jay he directed that notice of the revisiot1 application should be given to the other party and
called upon the applicants to furnish talba11a ancl
a
copy of the application. The case then stoo,\ adjourned
for hearing on September 6, 1951.
On September 6,
1951, \Yhcn the case w.!S called out before the learned
Sessions Judge, the appellant was present. The learnccl
·sessions Judge found that the appellant had not submitted a copy of his application as already directed but
he was told that the appellant was submitting a copy
on the same day. That is why the leJrned Judge ordered
that notice should
be issued after the said copy was
tiled. The hearing of the case was then adjourned to
September 12, 1951.
So far there is no dispute about
the facts. There is,
however, a serious dispute as to
other
e\'ents
which. according
to the complainant.
happened on September 6,
1951. The complainant's
case is that, after the hearing of the case was adjourned
to September 12, 1951, and notice of the application
was ordered to be issued to Party No. 2, the appellant
prevailed upon Shri
Maghraj, clerk of
the
Sessions
Judge's Court to prepare an actual stay order, that the
said stay order was accordingly prepared and was got
signed by the Reader of the Court. Then the Jppellant obtained the stay order from Shri
Sheolal the
despatch clerk to whoin it was entrusted by the Reader.
Armed with th.is order the appellant personally took
S.C.R.
SUPREME COURT REPORTS
579
the order to the SulvDivisional. Magistr'!te and presented it to him the next day. In due course the revision
application was taken up for hearing on September 12,
1951. Since no notice had been served on Party No. 2
the hearing was again adjourned to
September 22,
1951. It is co:-nmon ground that on September 22,
1951, it was disi:overed that a fraudulent stay order
had been issued from the office of the learned Sessions
Judge's Court. The learned Sessions Judge then called
for explanation from Shri Maghrai and directed the
Sub-Divisional Magistrate to treat the letter of September 6, 1951, containing the alleged order of stay as
cancelled.
It- appears that as a result of the enquiry
held by the learned Sessions Judge, he found that Shri
Maghraj had committed a grave mistake and held that
it would be enough if Shri Maghraj was fined Rs. 11/-
and , administered a severe warning to behave properly
in future. The complaint against the appellant is that
the appellant took_ an active part in the commission of
the fraud and was thus guilty of fraudulent and grossly
improper conduct in the discharge of his professional
duty. A false orde1· had been obtained by him by un~
fair means and so he was guilty of professional misconduct. That in substance is the case against the
appellant.
As we have already indicated, many of the facts
alleged in the complaint against the appellant are not
in dispute. The appellant admits that he was present
before the learned Sessions
Judge on September 6,
1951. It is not denied bv him that he took the
envelope frotn
the
despatch clerk addressed
to
the
Sub-Divisional Magistrate, Sojat, and that he in fact
handed over the envelope the next day in the office of
the Sub-Divisional Magistrate. His case,
however, is
that he never approached Shri Maghraj in this matter
and that he;. was not in any way instrumental in getting the draft prepared. In fact, according to the
appellant, he did not know the contents of the envelope
and it was only on September 22,
1951, that he
knew that a false order of stay had been issued by the
office of the Sessions Judge by mistake. Before the
tribunal, evidence was led by both the parties. The
1957
Ma11ak Lal
v,
Dr. P"m Chand
Gajendragadkar ].
1957
Manak Lal
v.
Dr. Prm1 Chand
GaJtndragadkar ].
580
SUPREME COURT REPORTS
[ 19571
complainant Dr. Prem Chand himself gave evidence
and on his behalf Shri Maghraj and Shri Shcolal were
examined. The appellant
Manak Lal
gal"e evidence
on his behalf. Both the members of the tribunal and
the learned Judges of the High Court of Rajasthan
have,
on
the
whole,
accepted
the
complainant's
version, rejected the pleas raised by the appellant and
have held. that the appellant is guilty or gross professional misconduct. It is this finding which, on the
merits, is challenged before us by Shri C. K. Daphtary
on behalf of the appellant.
Shri Daphtary
has also
raised two points of law in support of his argument
that the order passed against · the appellant mmt he
set aside.
It will he
convenient to
deal with these
points first.
Shri Daphtary contends that the tribunal appointed
by
the learned Chief Justice of the High Cour: of
Rajasthan to enquire into the alleged
misconduc: of
the
appellant
was
improperly
constituted
and
all
proceedings
taken
before
the
tribunal,
the
report
made by it and the subsequent order passed by the
High Court pursuant to this report are all invalid.
This point arises in this way. The tribunal consisted
of three members with Shri Chhangani as its Chairman. It is common ground that Shri Chhangani had
filed
his vakalat on behalf of Dr. Prem Chan,l in
proceedings under s.
145 of the Code of Criminal
Procedure on August 23, 1952, and had in fact argued
the case on that date. Shri Daphtary contends that
since Shri Chhangani had appeared in the criminal
proceedings in question for the opponent he was disqualified from acting as a member of the tribunal and
this disqualification introduces a fatal infirmity in the
constitution of the tribunal itself.
There
is
some
force in this argument. It is well settled that every
member of a tribunal that is called upon to try issues
in judicial or quasi-judicial proceedings must be :1ble
to act judicially; and it is of the essence of judicial
decisions
and
judicial
administration
that
judges
should
be
able
to
act
impartially,
objectively ;md
without any bias. In such cases the test is not whether
in fact a bias has affected
the
judgment;
the test
• f
S.C.R.
SUPREME COURT REPORTS
581
alwavs
is
and must
be
whether a litigant
could
reaso.nably
apprehend that a bias
attributable to a
member of the tribunal might have operated
against
him in the final decision of the tribunal. It is in this
sense that it is often said tbat justice must not only
he done hut must also appear to be <lone.
As Viscount
Cave L. C. ]w; observed in Frame United Breweries
Cu. v. Bath
Justices(')
"this rule
has been asserted
not only i11 the case of Courts of Justices ond other
judicial tribunals hut in the case of authorities which,
though in i1U >rnse to he called Courts, haYe to act as
judges of the rights of others". In dealing with c:ises
of bias
attributed
to members constituting tribunals,
it is necessary to make a distinction between pecuniary
interest and
prejudice
so
attributed.
It is
obvious
that pecuniary interest, however small it may be in a
<ubject-matter
of the proceedings, would wholly disqualify a member from a.cting
a1 a judge.
But where
pecuniary
interest
is
not :ittributell but instead a bias
i~ suggested, it often becomes
necessary
to consider
whether there is a reasonable ground for assuming the
possibility of J bias and whether it is likely to produce
in the minJs of the litigant or the public at large a
reasonable doubt about the fairness of the administration of justice.
It WJuld always be a question of fact
to be
decided
in each case.
''The principle", says
Halshury, "nemo debet esse judex in causa propria rna
precludes a justice, who is interested in the subjectmatter of
J
dispute, from acting as a justice therein" ( 2 ).
f11 our opinion, there is and can be no doubt
about the validitv of this principle and we are prepared
to assume that
this principle applies
not
only
to
the justices
as
mentioned
by
Halsbury
but
to
all
tribun:ils and bodies which are given
jurisdiction to
determine judicially the rights of parties.
l n support of his argument, Shri Daphtary referred
us
tlJ the decision in Rex v. Sussex fustices, Ex parte
MrCarthy( 1 ).
In
this
case,
the Court was dealing
with a case arising out of a collision between a motor
(1) [1926] A. C. 586. 590.
(,) Halshury's Law• ofEngl«n<I, Vol. XXI, p. ::,35, para 932.
( :J) [ 1924] I K. ll. ,;,Ii.
1957
Mand Lal
v.
Dr. Prim ChQnC
Gaje11Jraindkar J.
1957
Manak Lal
v.
Dr. Prtm Chand
Gajtndragadkar J.
582
SUPREME COURT REPORTS
[1957)
vehicle belonging to the applicant and one belonging
~.
to W.
At the hearing of the summons the acting
clerk to the justices was a member of the firm of
solicitors who were acting for W in a claim for damages against the applicant for injuries received in the
collision.
After
the
evidence
was
recorded
the
·~
justices retired to consider their decision and the act-
•
ing clerk also• retired with them in case they should
desire to be advised on any point of law. The applicant was convicted in the case.
This conviction was
challenged by the applicant on the gwund that it was
vitiated by the improper conduct of the justices in
allowing the acting clerk to be associated with them
.':-...{
when they deliberated about the merits of the case.
An affidavit was filed on behalf of the justices that they
reached their decision without consulting the acting
clerk and that the acting clerk had in fact abstained
from referring to the case.
This affidavit was accepted
as true by all the learned judges who heard the case
and yet the conviction was quashed.
"The question
is", observed Lord Hewart C.J. "whether the acting
clerk was so related to the case in its civil aspect as to
be unfit to act as a clerk to the justices in the criminal
matter" and the learned judge added that "the answer
to that question depends not upon what exactly was
;>---.
done but upon what might appear to be done. Nothing
is to be done which creates even a suspicion that there
has been an improper interference in the course of
justice."
Lush J. who agreed with Lord Hewart C.J.
likewise accepted the affidavit made on behalf of the
justices but observed, "that they have
placed
themselves in an impossible position by allowing the clerk
in those circumstances to retire with them into their
consultation room."
The same principle was enunciated with equal emphasis in Rex v. Essex fustices, Ex
parte Perkins( 1). This was a dispute between a husband and his wife and it appeared that the wife had
)..-.,
consulted
the solicitor's
clerk in their office
about
the preparation
of a deed of separation from her
husband and the lawyer acted in the matter for a time
after which she ceased to consuH him. No mention of
(1) [1927] 2 K.B. 475.
S.C.R.
SUPREME COURT REPORTS
583
the matter was made to the solicitor himself except one
very short reference to it in a weekly report from his
clerk. Subsequently the solicitor acted as a clerk to the
justices who tried the case.
He stated in his affidavit
that, when acting as a clerk to the justices on the
occasion in question, he had no knowledge that his firm
had acted for the wife amt that he was in no way
:idverse to the husband. It was urged that the decision
of the justices should be set aside . as the justices were
not properly constituted and it appears also to have
been suggested that the decision might, perhaps, have
been influenced by a prejudice though indirectly and
to a very small extent. Rejecting the argument that
the decision of the justices had
been influenw.l even
remotely by the impropriety alleged, Avary J. stated
that "though the clerk to the justices and the justices
did not know that his firm had acted for the applicant's
wife, the necessary, or at least the reasonable, impres-
,ion, on the mind of the applicant would be that justice
was not done seeing that the solicitor for his wife was
acting with the justices and advising them on the hearing of the summons which she had taken against him."
It has, however, been urged before us by Shri
Umrigar, on behalf of the Advocate-General, that this
principle should not be applied
to the proceedings
before the tribunal appointed under the Bar Councils
Act. He contends that the tribunal is not empowered
to pass final orders on the enquiry and that the report
made by the tribunal is, in every case, to be submitted
to the High Court for the final decision of the High
Court. We are not impressed with this argument. If
it is true that in judicial or quasi-judicial proceedings
justice must not only be done but must appear to be
done to the litigating public, it is equally true that
when a lawyer is charged for professional misconduct
and is given the privilege of being tried by a tribunal
of the Bar Council, the enquiry before the tribunal
must leave no room for a reasonable apprehension in
#le mind of the lawyer that the tribunal may have
been even indirectly influenced by any bias in the mind
of any of the members of the tribunal. In the present
case, we have no hesitation in assuming that
when
1~57
Manak Lal
v.
Dr. Prem Clianct
Gajindr•gadkar J.
1957
Maria*. Lal
v.
Dr. Prem Chand
Gajtndragadkilr ].
584
SUPREME COURT REPORTS
[19171
Shri Chhangani agreed
to work as the Chairman of
the tribunal, he did not remember that he had app.:arcd
against
the
appellant's
clients
in
the
criminal
proceedings under s. 145, We are told that Shri Chhrngani is a senior member of the Bar and was once
Adl'ocatc·Gcneral of
the
High
Court of
Rajastlun.
Besides he had not appeared in the case at all sta;:es
but had appeared
onlv once as a senior counsel
to
argue the matter. It is, therefore. not at all unlikely
that Shri Chhangani had no personal contact with the
client Dr. Prem Chand and mav not have been aware
of the fact that, in the case from which the present
proceedings arose, he had appeared at any
stage
f•.>r
Dr. Prem Chand.
We arc, however, inclined to J,oJd
that this fact does not in anv wav affect the legal
argument urged before us by Shri Daphtary. It is 11ot
Shri
Daphtary's case
that Shri
Chhangani
actmlly
had a bias
against
the
appellant and
that the said
bias was responsible for the final report made against
the
appellant.
Indeed
it
ts
unnecesson·
for
Shri
Daphtary
to
advance
such an
argument.
If Shri
Chhangani was disqualified from working as a member
of the tribunal by
reason of the fact that he , had
appeared for Dr. Prem Chand in the criminal proceedings under s. 145 in question, then it would not be
necessary for Shri Daphtary to prove that any prejuclice
in
fact
had
been
caused
or that Shri
Chhangani
improperly influenced the linal decision of the tribunal.
Actual proof of prejudice in
such cases may
make
the appellant's
case
stronger but such proof is not
necessary in order that the appellant should effectivelv
raise the argument that the tribunal was not properly
constituted.
Shri
Umrigar,
however,
contended
that
unless
prejudice
is
actually
proved
the cl1allenge
to
the
validity of the constitution of the tribunal cannot he
upheld and he sought to rely upon the decision
in
Rex v, Williams, Ex parte Phillips(') in support of this
contention.
In this case the court was dealing with
an application for' a writ of certiorari. A baker had
been charged under .s. 4 of Bread Act of 18.36. It was
(•) [•aqJ 1 K.n. 608.
-·
'
S.C.R.
SUPREME COURT REPORTS
585
alleged
.that he had sold bread otherwise than
by
weight and was liable to be convicted under s. 15 of
the Ji.ct.
In fact
he
was so convicted.
Thereupon
he obtained a 'rule nisi for a writ of certiorari to quash
the conviction on the ground that one of the
justices
was a person concerned in the business of a baker.
Section 15 disqualified persons concerned in the business
of a baker to act as a justice in the trial of such
cases.
This
application for
a writ
was
ultimate! y
rejected by the Court. The decision of the Court,
however,
was based
substantially on
two grounds.
Channel J.,
who delivered
the principal judgment
of the Court,
observed
that "when objection
to• a
comiction is taken mere! y by a member of the public
and not by a party more particularly aggrieved
the
granting of a certiorari
is
discretionary. Where the
objection is by a party aggrieved, then, as a rule, a
writ is issued ex debito justitiae. This position, however, is subject to the exception that a party aggrieved
may
by his
conduct preclude himself from taking
objection to
the
jurisdiction of an inferior Court."
But it is significant that the second ground on which
the ' judgment proceeded
clearly
indicates
that the
justice whose presence at the hearing was
challenged
under s. 15 of the Act by the petitioner did not
apparently appear to fall within the mischief of s: 15
of the Act at all. "I do not say", observed Channel J.,
"whether the facts shown would be enough to make
him a person following or concerned in the business· of
a baker within the meaning of s. 15'.'. This conclusion
was accepted by the two other
learned
judges.
It
would thus appear that the decision in this case does
not justify Shri Umrigar's contention that, even if the
constitution of the tribunal is held to be defective or
improper, the proceedings taken before the
tribunal
and the orders subsequently passed in pursuance of
the report cannot be successfully challenged unless it
is shown that the defective constitution of the tribunal
had in fact led to the prejudice of the appellant. We
would1 therefore, hold
that Shri Daphtary is
right
when__ he contends that the constitution of the tribunal
appointed by the Chief Ju•tic~ of the High Court ot
1957
Manak Lal
v.
Dr. Prem Chani
Gaj1ndragadkar J ..
•
i957
Mano.k Lc.l
Dr. Prem Chand
Gajendra,t;o.dko.r ].
•
586
SUPREME COURT REPORTS
(1957]
Rajasthan suffered from a serious infirmity in that
Shri Chhangani, who had appeared for Dr. Preen Chand
in the criminal proceedings in question, was appointed
a member of the tribunal and in fact acted as
its
Chairman.
The next question which falls to be considered is
whether it was open to the appellant to take
this
object;on for the first time before the High Court. In
other words, has he or has he not waived his objection
to
tlie presence of Shri Chhangani in the tribunal'
Shri Daphtary does not seriously contest the position
that the objection could ha\•e been effectively waived.
The alleged bias in a member of the tribunal does not
render the proceedings invalid if it is shown that the
objection against the presence of the member in question had not been taken by the party even though the
party knew about the circumstances giving rise to the
allegations about the alleged bias
and was aware of
his right to challenge the presence of the member in
the tribunal.
It is true that waiver
cannot
always
and in every case be inferred merely from the failure
of the party to take. the objection. Waiver can
be
inferred only if ace! after it is shown that the party
knew about the relevant facts and was aware of his
right to nke the objection in question. As Sir John
Romilly M. R. has observed in Vyvyan v. Vyvyan( 1 )
"waiver
or
acquiescence,
like
election, presupposes
that the pcrrnn to be houncl is fully cognizant of his
rights, and, that being ~o, he neglects to enforce them,
or chooses one benefit instead of another, either, bur
not both, of which he might claim". If, in the present
case, it appears
that the appellant knew all the facts
about the alleged disability
of Shri Chhangani and
was also aware that he could effectively reque,.t the
learned Chief Justice to nominate some other member
instead of Shri Chhangani and yet did not adopt that
course, it may well be that he deliberately took
a
chance to obtain a report in his favour
from
the
tribunal and when he came to know that the report had
gone against him he thought bettrr .of his rights and
raised this point before the High 01urt for the first
(1) [1861] 30 Beav. 65, 74; :,4 E. R 813 1 81j.
S.C.R:
SUPREME COURT REPORTS
587
1957
-·f-. · time. In other words, though the point of law raised
by
Shri Daphtary against the competence
of . the
tribunal be sound, it is still necessary for us to consider
v.
Dr:· Pi1m · Chand·
whether the appellant was precluded from raising this
point before the High Court by waiver or acquiescence.
Gajendrag.Jkar Jo·
From the record it is clear that the appellant never
raised this point before the tribunal and the manner
in which this point was raised by him even before the
High Court is somewhat significant. The first ground
of objection filed by the appellant against the tribunal's
report was that Shri Chhangani had pecuniary and
'r personal
interest
in
the
complainant,
Dr.
Prem
Chand. The learned fudges of the High Court have
found that the allegations about the pecuniary interest
of Shri
Chhangani in the present proceedings are
wholly· unfounded and
this finding
has
not been
challenged before us by Shri Daphtary. The learned
Judges of the High Court have also found that the
objection was raised
by .the appellant before
them
only to obtain an order fo1 a fresh enquiry and thus
gain time. It may
be
conceded in favour of Shri
Daphtary that the judgment of the High Court does
not in
terms
find against the ' appellant
on
the
ground
of· waiver
though that no doubt appears
to be the
substance of their conclusion. We have,
however, heard Shri Daphtary's case on the question
of waiver and we have no hesitation in reaching the
conclusion
that the
appellant waived
his
objection
deliberately and cannot now be allowed to raise it. Shri
Dapbtary does not contend that at the material time
the appellant did not remember the fact that, . Shri
Chhangani had appeared for Dr. Prem Chand in the
criminal proceedings.
Indeed suth a plea cannot be
raised by the appellant in view of the affidavit which the
appellant sought to place before us in the present appeal.
Under this affidavit, the appellant's case appears to be
that until be· met his advocate Shri Murli Manohar for
filing objections to the report · of the· tribunal, the
appellant did not know that · Shri Chhangani was ·
\\'.~~\\~ di~(lu~\\fl.e.li from acting as a member · of the
tribunal. .. h is obvious
that this
ground
necessarily
implies that the appellant knew:; about the facts giving
1957
Monak Lal
v.
Dr. Prnn Chand
Goj1ndragadkar J.
588
SL'PREME COURT REPORTS
[1957]
me to the alleged disqualification of Sliri Chhangani
to act as a member of the tribunal. In substance, the
contention
is that thotigh the appellant knew that
Shri Chhangani had appeared for Dr. Prem Chand in
tbe criminal proceedings in question, he \V:ls not a~·are
that, in consequence. Shri Chhangani was disqualified
to act as a member of the tribunol. It is this limited
aspect of the matter which
is
pressed
before
us
by
Shri Daphtary. Shri Daphtary contends and no Joubt
rigl1tly that if we are satisfied that the appellant did
not know about the true legal position in this matter
and his rights arising therefrom, his failure to challenge
the appointment of Shri Chhangani on the
tribunal
would not raise an effective plea of waiver. However,
in our opinion, it is
very difficult to accept Shri
Daphtary's argument that his client did not know the
trne legal position or his rights until he met Shri Murli
Manohar. No doubt the appellant is a junior at the
Bar but e\'en so he.: can cla.in1
ten years' standing at
the Bar. Resides, he had the assistance of a lawyer in
defending him
in
the
present
proceedings
and
it
appears extremely difficult to assume that neither the
appellant nor his lawyer knew that the presence of
Shri Chhangani in
the tribunal could be effectively
challenged by them.
We are disposed
to think that
even a layman, not famibr with legal technicalities
and
equitable
principles on which this
doctrine
of·
disability
has
been
based,
would
have
immediately
apprehended that the lawyer who had
appeared for
Dr. Prem Chand was authorised to sit in judgment
over the conduct of the appellant and that might
cause
embarassmcnt to the appellant and might lead
to prejudice against him. From a purely common sense
point of view of a layman, the position was
patently
awkward, and so, the argument that the appellant was
not conscious of his legal rights in this matter appears
to us to be an afterthought. Since the appellant was
driven
to adopt this
untenable
position
before
the
High Court in seeking to raise this point for the first
time at that stage, we are not surprised that the High
Court took the view that the plea had been taken late
in order to gain time and to secure a fresh enquiry in
•
S.C.R.
SUPREME COURT REPORTS
589
the matter. Since we have no doubt that the appellant
knew the material facts and must be deemed to have
bcc11 conscious .of his legal rig·hts in that
i11attcr, 11is
failure to take the present plea at the earlier stage of
the proceedings creates an effective bar of waiver
against· him. It seems clear that the appellant wanted
to take a chance to secure a favourable report from
the tribunal which was constituted and when he found
that he was confronted with an unfavourable report,
he adopted the device of raising the present technical
point.
Then Shri Daphtary sought to challenge the main
conclusion of the High
Court that the appellant was
guilty of professional
misconduct
on
a preliminary
ground. He contended that the High Court judgment
shows that the iearnd Judges had considered some
inadmissible evidence in the absence of the appellant
and without giving him an opportunity to be heard on
the said evi<len:e and that had introduced an infirmity
in the judgment which vitiated their final conclusions.
It appears from the judgment of the High Court that
the learned Judges sent for and looked into the record
of .Revision Application No. 31 of 195! in the Court of
the Sessions Judge, Pali, and the record of Case No.
134 of 1951 in the Court of the Sub-Divisional Magistrate, So)at.
Shri Daphtary has made pointed reference
to the fact that the record in Case No. 134 of 1951 was
sent for hv the High Court after this matter had been
acgucd before them. If we had been
satisfied
that
the learned Judges of the High Court had taken into
consideration material
documents
which
were
not
before them at the time the case was argued before
them,
we
would
certainly
have
considered
Shri
Daphtary's grievance more seriously. We are, however,
not satisfied that the grievance made by Shri Daphtary
against this alleged irregularity is really justified. The
High Court judgment shows that the ·appellant argued
before the High
Court that he
could not have been
concerned with the fabrication of the false order because
his subsequent conduct showed that he was not at all
interested in · seeing that the
said
order was implemented. In fact, this argument has been characterised
8-78 S. C. Indio/59
1957
Manak Lal
v.
Dr. Prem Chan-t
C::;t--
Gqfr:ndragadkar
J~
I95i
MOMk Lal
v.
Dr. Prem Chand
590
SUPREME COURT REPORTS
[ 1957]
by the High Court as plausible but not sound. It was
this argument which provoked the reply from
the
other side that in fact the fabricated order had been
implemented and in support of this reply reference was
made to the application made by Dr. Prem Chand and
his men in which it had been specifically alleged that
the appeibnt's clients had taken possession of the crops
and that they haci aiso removed them. This application had been made on September 24,
1951, and it
requested . the Sub-Divisional Magistrate to prevent the
appellant's clients from taking illegal possession of the
land and removing the
crops.
It is
these two rival
contentions
which the learned
Judges of
the High
Cowt ,had to examine. The judgment shows that it
was
substantially
with a view to satisfy
themselves
that the
application
referred
to
by
the respondent
before the High Court in the course of the argument
had in fact been made that the High Court subsequently called for and examined the relevant records.
It may be that in the earlier part of the judgment the
learned
Judges have
stated somewhat generally
that
they had looked at the records of both the cases; but
it is clear from the reasons given by the learned Judges
that the perusal of the records in the said two cases
had played no part in the final decision of the High
Court.
We
are,
therefore,
not
satisfied
that
the
procedure adopted by the High Court in dealing with
this matter suffers from any
serious irregularity as a
result of which their final orders should
be set aside
and a fresh hearing of the matter should be ordered.
Then remains the question of the merits of the
finding recorded by the High Court. Shri Daphtary
himself was aware that this part of his case is bound to
be weak in an appeal
which has
been admitted on.
Special Leave under Art. 136 of the Constitution. Both
the tribunal and the High Court have made concurrent
findings of fact against the appellant and it is difficult
to accept the argument that this finding of fact should
be re-examined on the merits by us in the present
appeal.
We may,
however,
incidentally
point
out
that there are some salient features of the case which
unequivocally support the view taken by the High
•
S.C.R.
SUPREME COURT REPORTS
591
Court against the appellant.
It is common
ground
that the appellant's clients were not present before the
Sessions Judge on September 6, 1951. It is admitted
that the appellant was present and that he
to?~ . the
envelope containing the order
to
the
Sub-D1V1s10nal
Magistrate. It may ·be that, in the State of Jodl'.pur,
lawyers
practising in
subordin~te
courts
some~11:1es
assisted the court officers by takmg packets contammg
judicial orders from one court to another; but, if the
appellant's clients were not present in the court, it is
difficult to understand how the fabricated order came
to be prepared without instigation by
the appellant.
It · is inconceivable . that officers of the court would
suo motu think of fabricating the order. The order was
intended to benefit the appellant's clients and, on
the
whole, it is an irresistible inference that the appellant
must have corrupted the officers of the court by the
offer
of illegal
consideration and induced
them to
fabricate the order. Shri Daphtary attempted to rely
on the view taken by the learned
Sessions Judge in
the enquiry which he held soon after he learnt about
the is,ue of this fabricated order. \V c are free to confess
that \Ve are not at all satisfied with this enquiry and
its final decision. However, we arc really not concernell
to consider the merits of this enquiry and we cannot
attach any importance to an argument based on the
view taken by the learned Sessions Judge in this ·
enquiry. The High Court has taken the view, and we
think rightly, that the conduct of Shri Loya should
also be examined as it is obvious that both Shri
Loya and Shri Maghraj were interested in persuading
the Sessions Judge to take the view that the fabrication of the order was due to a mistake committed by
Shri Maghraj. The theory of a mistake committed bv
Shri Maghraj is, in our opinion. wholly unreasonable, if
not fantastic. The order passed by the learned Sessions
Judge on
September 6,
195L
is
clear beyond any
doubt. Shri Maghraj read this order and it is suggested
that he misconstmed its effect. How an order directing
notice of the application to the opponent along with a
copy of the application to be served on the opponent
could
ever have
been construed to mean an order
'95i
Manak lAl
v.
Dr. P em Chand
•-.-
Ga1mdragadkar J.
1957
M"""k IAI
v.
Dr. Prim Chand
592
SUPREME COURT REPORTS
[1957J
directing the issue of stay, it is impossible to understand.
Then again, the order actually issued is elaborate in
its terrns a1H_i j:s o·!.Jjcct clearly
\~'a;~ ~o .;:·equirc the Sub·
Divisional Magistrate to give effect to the prayers made
by the appellant in his application without any delay.
Besides, the endorsement made by Shri Maghraj showing that the order had been complied with and his
silence
on
September
I~, 1951,
when the
learned
Sessions
Judge found
that
notice
had not
been
served are
very eloquent. If Shri Maghraj had committed an honest mistake, he would have immediately
reported to the learned Sess10ns Judge that notice had
not been issued and instead erroneously an order of
stay had been sent in the said proceedings.