Sarjoo Prosad, C. J. - (1.) THE proceeding relates to an application filed by Mst. Sharifan and one Kazi Mohammad Bux, both residents of Nagaur, against Shri Rashid Ahmad, a pleader practising in the courts at Nagaur. THE application was presented under sec. 13 of the Legal Practitioners' Act on the 5th of January, 1956 and it was alleged that for reasons mentioned therein the pleader was not a fit person to be allowed to practise and action should, therefore, be taken against him under the Act. On receipt of the petition, this Court issued notice on Shri Rashid Ahmad, who submitted his reply. Under order dated 24th August 1955 the Court considered that there was a prima facie case made out against Shri Rashid Ahmad and accordingly issued notice on him to show cause why he should not be suspended or dismissed from practice. By the order in question, the Court also framed four charges against the said pleader. THEy are as follows: - (1) That you, white appearing as pleader for Mst. Sharifan, wrongly introduced into the objection filed by her under O. XXI R. 58 a sentence to the effect that Ghulam Mohammad had been kept in the attached house by Mst. Sharifan. This you did in order to benefit Ghulam Mohammad for whom you had appeared previously as pleader. (2) That you were a tenant of Mst. Sharifan, and knew that she was the owner of the attached house, and in spite of this knowledge when you appeared as a witness for her in her objection under O. XXI, R. 58, you made a statement damaging to her case by wrongly stating that the 'attached house was in the possession of Ghulam Mohammad. (3) That you have been giving out falsely that you are an advocate of this Court, though in fact you are only a pleader, and that in particular you did so in your statement in the court of Munsif Nagaur on the 13th September, 1952, in the objection case under O. XXI, R. 58, and also before the Assistant Custodian Evacuee Property, Ajmer, on the 28th of February, 1955. (4 ). That in 1945-46 you obtained a certificate for yourself as a bona fide Marwari resident from the District Judge, Jodhpur, on the basis of false statements, and by concealing from him that you were a pleader enrolled in the court of the Judicial Commissioner, Ajmer, and practising there on the basis of a certificate that you were a bona fide resident of Ajmer.
(2.) THE Court directed that the charges should be enquired into by the District Judge of Merta, who should submit his report thereon. THE learned District Judge, in pursuance of the said order, has submitted a very elaborate report. On all the charges framed, he has found against Shri Rashid Ahmad and has recommended that punishment should be imposed upon him under sec. 13 of the Legal Practitioner's Act. We have had the advantage of examining the evidence on record and have read the report of the learned Judge with much interest and care. We fed satisfied that there is no justification for taking any action against Shri Rashid Ahmad on any of the charges framed against him and we do not think that the findings of the learned District Judge, as given in his report, are sustainable. I regret to have to observe that the learned District Judge appears to have proceeded on ex facie reasoning and apriority assumptions without fully scrutinising the relevant evidence led by the parties. The first two charges relate to certain statements made in an objection petition filed by the pleader concerned in a proceeding under O. XXI R. 58 of the Civil Procedure Code as also in his deposition in the said proceeding. The statement to which exception has been taken is that the judgment debtor in that case was living in the attached house which belonged to the claimant and another statement to the same effect in the deposition of Rashid Ahmad when he was examined in that proceeding. The facts show that one Peerchand had obtained a money decree against Ghulam Mohammad, the judgment-debtor and in execution of that decree, he had attached the house in question. Shri Rashid Ahmad, the said pleader was living in a portion of that house and had executed a rent-note in favour of Mst. Sharifan, the petitioner in this case. It also appears that he was representing Ghulam Mohammad, the judgment-debtor in the original suit. On the. attachment of the house in question, he was instructed by Mst Sharifan to file an objection under O. 21, R. 58 of C. P. C. claiming that the house belonged to Mst. Sharifan and that the judgment-debtor had no interest therein. Paragraphs 1 and 2 of the petition clearly state this position. It is stated therein that the house which has been attached by the decree-holder does not belong to the judgment-debtor, but is the property of the claimant, that the Patta in respect of the house was in favour of the husband of the claimant Allabeli and her son Ghulam Hasan and after their death, the claimant was entitled to the house. In the third paragraph of the petition, the sentence to which exception has been taken, occurs. It is therein stated that the judgment-debtor was very spendthrift and had sold his own houses and since he had no house to live in and happened to be a very near relation of the claimant, therefore, the judgment debtor had been allowed to stay in her house. The petition further recites that the claimant, who was an elderly lady, had no information as to why debt had been incurred by the judgment-debtor and that the judgment-debtor had no right to put the property of the claimant in jeopardy on account of any such debt and it was only after the attachment of the house that the claimant learnt that the judgment-debtor had created some 'rehan' in respect of the house in question and had taken possession of the Patta. The objection of the petitioner is that it was not necessary to mention in the said petition preferring the claim on behalf of Mst. Sharifan that the judgment-debtor was in occupation of any portion of the house. Shri Rashid Ahmad submits that whatever was stated in the petition was stated by him on instructions given by Mst. Sharifan and that he had said nothing which was not calculated to safeguard the interest of the claimant in that proceeding or which was stated against instructions given by her. It is no doubt true that Mst. Sharifan is an illiterate elderly woman, but the deposition given by her in the proceeding itself would go to support the submission of Shri Rashid Ahmad that the statements made in the claim petition were made on instructions and without any detriment to her interest. In the petition it is nowhere admitted that the judgment-debtor is in occupation of any portion of the house on his own behalf, all that has been stated is that he being a near relation of the claimant and he having no other house to live in because he had sold his own houses, he was allowed to live in on sufferance by the claimant in a portion of the house in question, a part of which was also occupied by Rashid Ahmad himself. The reference in some other part of the petition to the 'rehan' created by the judgment-debtor, according to the explanation given by Rashid Ahmad, was because the 'rehan' was a registered document and it was likely to be produced, as in fact it was produced, in the course of. the proceedings ; therefore, in the petition an explanation had to be given, as to how this 'rehan' had come into being. In her evidence in the claim case, Mst. Sharifan admitted that Ghulam Mohammad was staying with her sometime previously and when she learnt that the Patta in respect of the house had been surreptitiously removed by him, she did not allow him to stay in that house. She also admitted he had sold away his own houses. She admitted that the Patta of the house was not with her and that she had heard that some kind of a 'rehan' had been created in favour of Ghisulal. It is significant that in her statement before the District Judge Mst. Sharifan stated on the contrary that she had handed over the rent-note and the Patta to Rashid Ahmed, and while the rent-note had been returned, the Patta had not been returned by the latter. This is obviously in conflict with the statement which she made in the claim proceeding that the Patta had been surreptitiously removed by Ghulam Mohammad. Her deposition itself shows that the judgment-debtor Ghulam Mohammad was living in the house, though on that aspect of the matter, she has tried to prevaricate admitting, and at the same time, denying the judgment-debtor's occupation of the house. The recitals in the petition were therefore quite justified and must have been made on instructions. The claim case was disposed of by order of the court dated 12th February, 1955. The decree holder, of course, asserted that the judgment-debtor Ghulam Hasan was in occupation of the house in his own rights and the claimant was not the owner of the house in question. He further stated that the house had been given in Smt. 2006 to Gopalmal Ghisulal by the judgment-debtor and that the claim petition had been collusively presented by the judgment-debtor in the name of the claimant. The court entertained this plea of the decree-holder and held on the basis of the registered 'rehan-nama' that the house belonged to the judgment-debtor and was admittedly in his occupation and that Ghulam Hasan was an alias name of Ghulam Mohammad, the judgment-debtor. It appears that at a latter stage before the decision of the claim case Shri Rashid Ahmad withdrew from the claim proceeding and some other lawyer was engaged to represent the claimant. He was latter examined on the 13th September, 1952 on behalf of the claimant and in his deposition he stated that the house in question belonged to the claimant and that he had executed the rent-note in her favour; but in cross-examination he of course admitted that Ghulam Mohammed, the judgment-debtor had been living in a portion of the house. It has been urged that this statement of Shri Rashid Ahmed was clearly against the interest of his client and amounted to professional misconduct on his part. We do not see how it can be so, because if it was a fact that Ghulam Mohammed had been living in a portion of the house, he could not but admit that position when he was being examined as a witness in the case. There is nothing else in his deposition to indicate that he had gone out of his way to depose against the interest of his client, namely the claimant Mst. Sharifan. The learned District Judge unfortunately did not refer to these materials. He simply assumed that it was none of the business of Mr. Rashid Ahmad to say anything about the occupation of the house by Ghulam Mohammed, the judgement-debtor in a claim petition filed at the instance of Mst. Sharifan. The evidence disclosed in the case clearly goes to show that Ghulam Mohammed was a very near relation of Mst. Sharifan, that he was in possession of the Patta in respect of this house, that he had also created a 'rehan' in favour of Ghisulal in regard to this house. In View of these facts, it could not be said that there was no justification for giving some explanation in the petition of claim filed by Mst. Sharifan in respect of these matters and all this was done by Shri Abdul Rashid without instructions of Mst. Sharifan. It is somewhat unfortunate that when Abdul Rashid showed cause in this proceeding, he raised certain pleas to indicate that Ghulam Mohammad was a son of Mst. Sharifan either by Allabeli or by Akbar, a brother of _allabeli to whom she is said to have been married latter. The learned District Judge has gone into a very elaborate discussion of these matters which we do not consider it necessary to discuss. It is sufficient to observe that even on that evidence, Ghulam Mohammad appears to have been a member of the family of Allabux and there may be some truth in the assertion of Rashid Ahemad that Ghulam Mohammad was the same person as Ghulam Hasan and was a son either of Allabeli or of Akbar and as such interested in the house in question. Indeed, the finding of the officer, who decided the claim case, appears to be that Ghulam Mohammad was only an alias for Ghulam Hasan. We would however refrain from coming to any finding on that question so as not to prejudice any party. The only question with which we. are concerned at present and with which the learned District Judge was concerned is whether in introducing the statement in question in the claim petition which is the basis of the first charge or in deposing in the manner he did in the claim proceeding which is the basis of the second charge, there was anything which amounted to misconduct on the part of Shri Rashid Ahmad which would justify our taking action against him under sec. 13 of the Legal Practitioner's Act. We do not think that there was any misconduct or improper act on his part in doing what he did in claim proceeding and as such the above charges against him appear to us to be not well founded. There is one further fact to which it is necessary to refer in connection with these charges. The claim petition was filed on the 8th November 1951. Shri Rashid Ahmad withdrew from the case in April 1952 and before September 1952 another lawyer had been appointed to represent the claimant. Shri Rashid Ahmad was himself examined therein in September, 1952 and the claim petition was dismissed some three years afterwards on the 12tb February, 1955 ; yet throughout this period no application was filed on behalf of the claimant before that Court urging that Rashid Ahmad had made any false statement in the claim petition which was prejudicial to the interest of the claimant and contrary to her instructions. For the first time, almost a year after the disposal of the proceeding in January 1956 this complaint was made by her for taking proceedings against Shri Rashid Ahmad under Sec. 13 of the Legal Practitioner's Act. It has been submitted on behalf of Shri Rashid Ahmad that all this was manoeuvred at the instance of Kazi Mohammadbux, the other complainant, who has since died and who bore a grudge against him and that this belated application was filed at his instance on the alleged frivolous grounds. The other two charges appear to be equally unsustainable. The third charge relates to his representing himself as an advocate of the High Court, though in fact, he was only a pleader. This he is alleged to have done in the court of the Munsif Nagaur on the 13th of September 1952 when he deposed in the claim case under O. 21 R. 58 C. P. C, and again before the Assistant Custodian Evacuee Property, Ajmer on the 28th February 1955. Shri Rashid Ahmad admits that he is not an advocate, but he is a pleader who has been practising for several years and is also a law graduate. He submits that he never intended to misrepresent any fact to the learned Munsif. He was a practitioner at Nagaur and the Presiding Officer knew him very well. Therefore, there was no meaning in his misrepresenting himself as an advocate of the High Court; but it appears that in recording the deposition, the learned Munsif by some mistake, taking him to be an advocate, noted as such at the top of his deposition We have seen the record of the deposition itself; and in the printed form, although the other particulars have not been filled in, it appears to have been noted that he was an advocate of the Rajasthan High Court, Jodhpur. Shri Rashid Ahmad of course signed the deposition in token of the fact that it had been correctly recorded, but it is quite possible that his attention was not drawn to the record at the heading of his deposition. Ordinarily of course he should have mentioned to the court about the error in the record made in describing him as an advocate of the Rajasthan High Court; but it is quite likely that the heading of the deposition escaped his notice and he gave his attention when signing merely to the actual statements which were made by him and recorded by the court. The other statement recorded by the Assistant Custodian Evacuee Property appears to be similar in character. There also at the top of the deposition, he is described as an advocate of the Rajasthan High Court. This was on the 28th of February 1956 as it appears from his deposition Ex. 6. In that case Rashid Ahmad was deposing on behalf of his father-in-law Mohammad Sadik. When he came to know of this error in the description, he frankly stated to the officer that he was not enrolled as an advocate, but was a pleader of the Rajasthan High Court. This is evident from the order of Custodian dated 8th August 1955. It is true that the Custodian did not find his explanation satisfactory and observed that the error should not have been made by the said pleader; but we are not inclined to hold on the basis of this material alone that Rashid Ahmad was deliberately trying to represent himself as an advocate of Rajasthan High Court. His explanation is that he stated to the court that he was a 'vakil', which being an ambiguous expression conveying both the meaning of a pleader and an advocate, the court recorded it as an advocate of the Rajasthan High Court. It is, therefore, too much to build upon this material alone and to hold Rashid Ahmad guilty of any conscious attempt to represent himself as an advocate which he really was not. The learned District Judge himself is of opinion that no improper motive was involved and that no action need be taken against him in respect of this charge. We are inclined to accept this view of the learned District Judge. The fourth charge relates to Rashid Ahmad having obtained a certificate for himself as bona fide Marwari from the District Judge of Jodhpur on the basis of false statements allegedly made by him and by concealing from the court the fact that he had been already enrolled in the Court of the Judicial Commissioner as a pleader, where he had been practising on a certificate granted to him. It appears that on the 23rd December, 1941 a bona fide certificate of residence was issued to Rashid Ahmad and certain other persons by the Bar Association of Ajmer and it is not disputed that Rashid Ahmad held the Sanad of the Judicial Commissioner's Court, Ajmer, dated 7th February, 1942 which was valid upto 31st December, 1945 and was renewable thereafter. In October, 1945 he applied to the District Judge, Jodhpur, for grant of a bona fide Marwari certificate. In that application ha alleged that he was born in Jodhpur and that from generations his forefathers were residing in Jodhpur. In his evidence he explained that he was a resident of Jodhpur, his forefathers were living in Merta, that his grandfather came to stay in Merta and later went over to stay in Ajmer and that his father was doing business in Jodhpur and resided there. It has been argued that he having obtained a certificate of bona fide residence for practising in Ajmer, he could not at the same rime obtain a bona fide Marwari certificate in order to enable him to practise at Jodhpur. The petitioner explains that he got the Ajmer residence certificate on the basis of his grandfather Jamaluddin's residence under cl. (a) of R. 10 of the relevant rules. According to him, his grandfather was originally a resident of Merta City, but he migrated to Ajmer more than a hundred years ago and settled and acquired immovable property there. This explanation cannot be said to be altogether unsatisfactory. Rule 10 (a) says : "a person whose parents (paternal) have definitely settled and have been residing in Ajmer-Merwara for a period of at least ten years before applying for enrolment. " The word "parents" therefore might well include grand-parents also and, therefore, it was open to Rashid Ahmad to get the Ajmer residence certificate for purposes of enrolment as a pleader on the basis of his grand father's residence there. The word "paternal" would have been unnecessary if "parents" included only the father and the mother. It may be that he was practising for sometime at Ajmer ; but it could not be said that he was nevertheless not a' permanent resident of Jodhpur where his father resided. In regard to the bona fide Marwari certificate he based his claim on his own birth and his father Shri Peer Mohammad's residence in Jodhpur for over 25 years. His father appears to have taken a "rehan" of some immovable property in November, 1926 for a consideration of about Rs. 700/-; but it is admitted that they had no other property in Jodhpur. Nevertheless, there appears to be ample evidence to show that his father had been residing in Jodhpur for a large number of years. He was admittedly born in Jodhpur. The school register, a copy of which has been produced by Mst. Sharifan shows that ever since his birth he had been residing in Jodhpur and although in the original "8 years" has been changed into "since birth" Shri Rashid Ahmad is not responsible for the change and there is no reason to assume that the change was not made by a person competent to make it and that it was not a true entry of the actual position in the school register. In the Jodhpur Government Gazette Notification No. 754 dated 26th April 1940 (published in the Jodhpur Government Gazette dated April 27, 1940, the term "bona fide Marwari" has been defined as "a person who has permanently lived in Marwar for twenty five years or alternatively has lived in Marwar for fifteen years and possesses landed property worth Rs. 5,000/- will be considered a bona fide Marwari along with lineal descendants to one generation and to other generations if they continue to have a permanent residence in Marwar". If as the evidence shows the father of Rashid Ahmad was living for more than 25 years in Jodhpur, he as a lineal descendant, would be entitled to claim that he was a bona fide Marwari. The fact that for sometime he was practising at Ajmer by virtue of his grandfather's residence there would not alter the position, unless there was something to show that he had definitely indicated his intention not to reside permanently in Jodhpur but to stay permanently in Ajmer, of which there is no indication on the record. The fact that for purposes of his profession of a vocation, a man goes and stays outside does not mean that he abandons his permanent place of residence, which in other words is his domicile. The note under the said notification shows that for purposes of this rule, those persons who have gone out of Marwar will be treated as bona fide Marwaris provided (1) they have not willingly renounced their domicile in Marwar or (2) they continued to have their permanent home here after having become a Marwari. " This note also presupposes that there must be evidence to show the animus non-revertendi in order to effect this change of domicile, otherwise it will have to be assumed that Rashid Ahmad along with his father and as the lineal descendant of his father was a bona fide Marwari within the meaning of this rule and as such entitled to obtain the certificate in question. One has to remember that the language of the rule should not be so interpreted as to defeat the rightful claim of a person. Even if it is capable of two interpretations, the interpretation which is in favour of the person concerned should be assumed to be the correct interpretation. Here, the evidence which has been given does not necessarily establish that Rashid Ahmad was not a bona fide Marwari within the meaning of the rule. This charge again is a very belated charge, because the application appears to have been made in October, 1945, his statement was recorded in January, 1946 and the Sanad granted in February of that year. Thereafter no one ever complained that any false statement had been made by Rashid Ahmad in obtaining the certificate in question. As I have shown, the evidence does not show that he made any false statement in order to obtain his certificate of enrolment as pleader at Jodhpur. We do not think that any of the charges framed against Shri Rashid Ahmad at the instance of the petitioner has been established in order to enable us to take any action under sec. 13 of the Legal Practitioner's Act. The application, therefore, fails and must be dismissed with costs to Shri Rashid Ahmad, hearing Tee Rs. 50/ - . ;