MODI, J. - (1.) THIS is a complaint of professional misconduct against Shri Ghan Shyam Singh Bhati, a pleader practising in the courts at Udaipur. By our order dated the 9th July, 1963, the complaint was sent to the District Judge, Udaipur, for inquiry and report. THIS report has been received, and the learned enquiry judge is of the opinion that a case of professional misconduct against the respondent is established beyond all reasonable doubt, and, therefore, he has proposed that Shri Bhati be suspended from practice for a period of six months.
(2.) THE material facts leading up to this complaint may shortly be stated as follows. THE petitioner Bholiram had filed a civil suit No. 342 of 1959 in the court of Munsiff Rajsamand, which was dismissed by that court on the 31st May, 1961. In connection with filing an appeal against that judgment and decree, the petitioner's case is that he had, on the 10th July, 1961, engaged Shri Bhati and had agreed to pay him a fee of Rs. 40/- for filing and conducting the appeal and paid him that amount immediately His further case is that Shri Bhati had told him that a sum of Rs. 37/- odd would be required in connection with the expenses of the appeal and the details of which had been jotted down by the latter on a piece of paper Ex. 3, and as the petitioner could not pay this amount then and there, he sent Rs. 35/- to Shri Bhati by a money-order on the 19th July, 1961. It is then alleged that Shri Bhati had on enquiry informed one Jeevraj, a relation of the petitioner, that the appeal had been fixed for hearing for the 12th December, 1961, on which date the petitioner went to Udaipur, but Shri Bhati told him that the case had been adjourned to the 12th February, 1962. On the last-mentioned date, the petitioner again went to Udaipur, but Shri Bhati was not there, and so it was not possible to find out what had happened to the appeal. THE petitioner again inquired through the aforesaid Jeevraj from Shri Bhati as to which was the next date for the hearing of the appeal, and as a result of the inquiries then made, Shri Bhati informed Jeevraj that the appeal had been dismissed on the 12th February, 1962. THEreupon the petitioner personally contacted Shri Bhati who affirmed that the appeal had been dismissed on the 12th February, 1962. THE petitioner insisted that a copy of the order dismissing the appeal should be obtained whereupon Shri Bhati was compelled to disclose the true position and then he told him (petitioner) that the appeal had never been filed. THE case of the petitioner further is that thereafter Shri Bhati returned the file to the former but the amounts paid to him by way of fees and expenses had been retained by him. It is on these facts and circumstances that the petitioner submitted that the conduct of Shri Bhati in not filing the appeal and retaining the monies paid by him to the latter amounted to grave professional misconduct and prayed that suitable punishment be meted out to him. Shri Bhati has resisted this application. He admits that he was engaged by the petitioner in connection with the appeal in question, but his case further was that he had, as soon as the petitioner had shown him the copy of the judgment sought to be appealed against, warned the petitioner that there was not much substance in the petitioner's case, and that he would be in a position to give a more definite opinion after having perused the relevant record, and, consequently he asked the petitioner to let him have the record as soon as possible. According to Shri Bhati, he had received this record through one Mal Singh on or about the 21st July, 1961. But before we proceed further, it may be pointed out that, according to the respondent, the fee settled between the parties in connection with the conduct of the appeal was Rs. 80/- and not Rs. 40/- as alleged by the petitioner, and, in addition, a sum of Rs. 37/25 N. P. was agreed to be paid by the petitioner as the expenses of the appeal. Shri Bhati admitted that the petitioner had only Rs. 40/- with him at that time, and, therefore, this amount had been paid by the petitioner to him while he promised to send the balance from his village. Shri Bhati's case further is that he had clearly told the petitioner at the time that if, on the reading of the papers, he came to the conclusion that the appeal was without any substance, he would not charge the balance of the fee but would be entitled to retain the sum of Rs. 40/-paid to him, as his consultation fee. Consequently, the case of Shri Bhati is that after he had received the file from the petitioner through Malsingh he went into the whole case and told Malsingh on or about the 22nd July, 1961 that there was no use filing this appeal, but that if the petitioner still insisted on its being filed, he should come himself along with the remainder of the fee settled as also the balance of the money which had been settled to be paid by way of expenses for the appeal. The petitioner, however, never turned up and so the appeal was not filed. It may be mentioned at this place that the last date for filing the appeal excluding the time taken for obtaining the copies of the judgment and decree was 9th August, 1961. The respondent's case further is that neither Jeevraj nor any other person on behalf of the petitioner ever came to him to inquire about the progress of the appeal and that therefore there was no occasion for him to say that the hearing thereof had been fixed for the 12th december, 1961, and or the 12th February, 1962. He also denied that he had ever informed the petitioner or Jeevraj that the appeal had been dismissed on the last mentioned date. It is, however, admitted by Shri Bhati that the petitioner did meet him an the 12th March, 1962, and demanded back the sum of Rs. 75/- paid to him, whereupon Shri Bhati returned the sum of Rs. 35/- which he had taken by way of expenses from the petitioner but refused to pay back anything more, or, to be precise, the sum of Rs. 40/- which, according to the petitioner, had been paid to Shri Bhati as his fees for the conduct of the appeal, but which according to Shri Bhati had been agreed to be retained by him as his consultation charges in the event of the appeal not being filed in case he eventually came to the conclusion after reading the entire papers that there was no chance of success. On these facts, the learned inquiry judge framed the following points for determination - (1) Whether Shri Bhati agreed to file the appeal and if so, his conduct in not filing the same amounts to professional misconduct? (2) Whether Shri Bhati deliberately gave wrong information to Bholiram that the appeal had been filed, that the date of hearings namely 12th December, 1961, and 18th February, 1962, had been fixed and that the appeal had been dismissed. If so, whether giving of deliberate wrong information to client amounts to professional misconduct? (3) Whether Shri Bhati retained the amounts of Rs 40/- and Rs. 35/- without any justification and if so whether such retention of money amounts to misconduct? On the first point, the finding of the learned Judge is that Shri Bhati had agreed to file the appeal unconditionally, that is, without any further agreement between the parties that in the event of the respondent coming to the conclusion after going into the papers that it was a weak case, he would not file the appeal in court; but his further finding on this aspect of the case is that such failure on the part of Shri Bhati was an act of mere negligence and did not amount to professional misconduct. On the second point, the finding of the learned Judge is in favour of Shri Bhati. But on the third and the last point, he definitely came to the conclusion that Shri Bhati had retained the amounts of Rs. 40/- and Rs. 35/- without justification, and, therefore, he was guilty of wrongful withholding of the money of his client which amounted to professional misconduct. We propose to deal with each one of these points in the order in which we have mentioned them above. As to the question whether Shri Bhati had agreed to file the appeal of the petitioner without any condition or with certain conditions as alleged by the former, we feel strongly disposed to agree with the finding of the learned inquiry judge on a critical consideration of the entire material which has been brought on this record. In the first place, it seems to us to be very unusual, particularly in the cases of litigation in the country-side, that briefs should be given to and accepted by counsel on such conditions on which Shri Bhati relies. Apart altogether from that however, here is a case which was by no means of a very large value. The valuation of the suit in the trial court was slightly over three hundred rupees, and it seems to us to be highly extraordinary that in a case like this any one should think of engaging a counsel to file an appeal only in the event that he considered it to be such that it was likely to succeed. Again, it is admitted between the parties that almost all the expenses of the filing of the appeal had been paid by the petitioner to Shri Bhati within a week of their first meeting that is on the 19th July, 1961, while the last date for the filing of the appeal was the 9th August, 1961. According to the petitioner, the entire remuneration which had been settled between the parties had also been paid up, although Shri Bhati would have us believe that the petitioner had agreed to pay him a sum of Rs. 80/- by way of remuneration for this appeal. On this aspect of the case also, we find it not a little difficult to accept the version of Shri Bhati, for, as we have pointed out above, the valuation of the appeal was three hundred rupees or so and no more, and in such a case, the strong probabilities in the absence of any documentary evidence to the contrary are that the remuneration settled was Rs. 40/-and not Rs. 80/-, so that the entire remuneration had also been paid. In these circumstances, it seems to us to be highly unlikely chat there should have been any agreement between the counsel and the client that the appeal was to be filed only in the event that the former on going through the papers came to a reasonably strong conclusion that the appeal would succeed. The story propounded by Shri Bhati seems to be a rather fanciful one, and we entirely agree with the learned District Judge in thinking that it does not inspire confidence. Shri Bhati has produced Malsingh D. W. 1 in support of his case. We have gone through his entire evidence and have not felt impressed by it. Malsingh has undoubtedly said that when he had taken the file to Shri Bhati as desired by the petitioner, Shri Bhati had told him on going through the papers that there was practically no chance of the appeal succeeding, and that if the petitioner still wanted that the appeal should be filed, then Malsingh should convey a message to the petitioner from Shri Bhati that he should personally come and see him (Shri Bhati) along with the balance of the fees and of the money in connection with the expenses. The case of Shri Bhati in short is that the petitioner never came to him thereafter, and as he had come to the conclusion that there was no use filing this appeal in the interest of his client, he did not file it. On giving our very careful and anxious consideration to this part of the case, we have no hesitation in saying that we have found it extremely difficult to accept it at its face value particularly because if that was the honest stand of Shri Bhati, there was nothing to prevent him from writing to the petitioner in due course about his own estimate of the success of the appeal and that it was no use filing it, as the petitioner had not met him again as allegedly desired by him. We say so because there was ample time between the 21st or 22nd July, 1961, when Malsingh met him with the file and the 9th August, 1961, which was the last date for the filing of the appeal. It is not disputed and is indeed indisputable, however, that Shri Bhati did nothing of the kind; and, that being so, and having regard to the facts and circumstances that we have already discussed, we are clearly of the opinion that there is no truth in the. version propounded by Shri Bhati which seems to us to be in the nature of an afterthought. For these reasons, we are in. entire agreement with the finding of the learned District Judge that the arrangement between the petitioner and Shri Bhati merely was that the appeal had to be filed, and no condition was attached to it. The next question is whether the failure on the part of Shri Bhati to file the appeal under these circumstances amounts to negligence only and not to professional misconduct. The learned District Judge, as already stated, entertains the view that the failure of Shri Bhati to file the appeal in this case amounts to mere negligence on his part and, therefore, did not amount to professional misconduct within the meaning of sec. 13 of the Legal Practitioners' Act. In coming to this conclusion the learned Judge seems to have relied on Muniswami Naidu, In Re (1), In re Satyanarayana-murthi (2), In re (a Pleader (3) and Crown vs. Puran Chand (4 ). With respect, it seems to us that the learned Judge has not correctly construed the law as laid down in these cases. We consider it unnecessary to deal with these cases in any detail because they are founded on facts which are entirely distinguishable from the facts of the case before us, and all that they lay down is that negligence on the part of the counsel without more will not amount to professional misconduct. We have no hesitation in saying that that proposition in law, in so far as it goes, is perfectly correct, and we have no quarrel with that whatsover. The crux of the case, however, is whether the failure on the part of the counsel to file an appeal on behalf of his client for which he has been engaged, briefed and remunerated necessarily amounts to mere negligence only. With all respect, we are not prepared to uphold that proposition in the sweeping form in which it is sought to be placed for our acceptance on behalf of the respondent. We are quite prepared to accept that cases may arise where the default in the filing of the appeal may not be due to any moral delinquency on the part of the counsel engaged to do so, but may amount to an act of mere negligence just as where a counsel may have failed to do so because of his own illness. This was the case in In the matter of Narasinga Rao (5) to which our attention was invited by learned counsel for the respondent in support of his case. But where the conduct of counsel involves some thing more than mere negligence and amounts to grave misconduct or involves an element of moral delinquency, then such conduct would not and could not amount to negligence, pure and simple, but would clearly fall within the mischief of professional misconduct within the meaning of sec. 13 of the Legal Practitioners Act. In support of the view which has commended itself to us, we may invite attention to a Full Bench decision of the Calcutta High Court in In the matter of S, a Vakil, (6), wherein Rankin C. J. , speaking for the court, laid down that where the petitioner had established conclusively that before he left Calcutta, the Vakil had accepted his Vakalatnama and undertaken his case and promised to file the appeal and had never at any time made a stipulation that unless the petitioner supplied him with a particular sum of money he would not act for him, and the Vakil left Calcutta for several months leaving everything to his clerk and he took no steps to inquire what the clerk was doing, whether the appeal was filed or not, such conduct was no ordinary case of negligence and that it was in itself a grave professional misconduct. The learned Chief Justice further observed that "persons who are admitted to practise in this Court cannot be allowed to share in a valuable monopoly and at the same time to neglect their duties in a manner so unconscionably. And that it was most necessary that conduct such as the one disclosed in the case should be visited with appropriate severity. " If we may say so with respect, we entirely agree with the observations of Rankin C. J. in the above case, and, disagreeing with the finding of the learned District Judge on this aspect of the case, hold that the conduct of Shri Bhati in not filing the appeal, in the circumstances to which we have referred in detail, amounts to not merely negligence as such, but to grave professional misconduct. On the second point, the finding of the learned District Judge is in favour of the respondent Shri Bhati, particularly as Jeevraj who is said to be the medium between the petitioner and Shri Bhati had not been produced in evidence by the petitioner. That being so, we do not think that we need pursue this matter any further. This brings us to the third and the last point in the case, namely, whether Shri Bhati retained the sums of Rs. 40/- and Rs. 35/- which had been paid to him by the petitioner without any justification, and, whether, if he did so, his conduct amounts to professional misbehaviour. Shri Bhati's case on this point is that he had returned the sum of Rs. 35/- to the petitioner on the 12th March, 1962, while, as for the sum of Rs. 40/- his stand is that he had not returned that to the petitioner, and further that it was not necessary for him to do so as the agreement between them was that in case he came to the conclusion that the appeal was not worth filing, he would be free to retain the sum of Rs. 40/- as his consultation charges. We have already discussed in considerable detail he question of the kind of engagement of Shri Bhati by the petitioner in the sense whether it was conditional or otherwise, and for the reasons which we have already given and need not repeat, our finding is that the petitioner had engaged Shri Bhati to file his appeal without any conditions such as those relied on by Shri Bhati, and that he had paid him his full remuneration of Rs. 40/-, although the amount which was stated to be required by Shri Bhati as expenses for the appeal had been paid only to the extent of Rs. 35/- and the balance of Rs. 2/25 np. was still required to be paid by the petitioner to Shri Bhati. In these circumstances, we have no hesitation in coming to the conclusion that Shri Bhati had no business to retain the sum of Rs. 40/- without filing the petitioner's appeal and conducting it, and, if he did so, he was undoubtedly guilty of professional misconduct. The only question which then remains to consider is about the return of of Rs. 35/- which had admittedly been paid by the petitioner to Shri Bhati by way of expenses for filing the appeal. Shri Bhati's case on this point is that he had returned the money to the petitioner on the 12th March, 1962. The learned District Judge has not accepted this version, and, in our opinion, rightly. The principal reason which induces us to agree with the conclusion of the learned Judge below is that in view of the strained relations which had already developed between the parties, the least that we should have expected Shri Bhati to do if he had actually returned the sum of Rs. 35/- to the petitioner was that he should have taken a receipt for it from the latter. In support of his version, Shri Bhati has produced the evidence of his clerk, Mohammed Ismail. The learned District Judge has not believed his evidence, and we are also not prepared to take this evidence at its face value. Mohammed Ismail is obviously an interested witness, and it should not be difficult to produce oral evidence of this type which, to our mind, should be a wholly insufficient basis for coming to the conclusion that the money had in fact been paid though no receipt was obtained for it from the petitioner. We should also like to add that even if we were not to agree with the finding of the learned Judge below on this last-mentioned aspect of the case as contended for by learned counsel for the respondent, the gravity of the misconduct of the respondent is not substantially reduced thereby on the findings at which we have arrived on the other issues in the case. For the reasons mentioned above, our conclusion definitely is that the respondent Shri Bhati has been proved to be guilty of professional misconduct in so far as the whole of the point No. 1 and the first part of point No. 3 is concerned. The only further question is what action we should take against him. It has been pressed before us that Shri Bhati is a young lawyer and that we should view his case with leniency. We regret to have to observe that the kind of misconduct of which Shri Bhati has been found guilty is not a little reprehensible. , and undue leniency in a case of this kind is likely to lower down the morale of the great profession to which he has the privilege to belong, and that being so, we have come to the conclusion that he should be suspended from parties for a period of six months from today. We order accordingly. No order as to costs. . ;