judgement:
Appeal No. 146 of 1956.
Appeal by special leave from the judgment and order dated December 3, 1954, of the Madras High Court in Referred Case No. 69 of 1954.
M. section K. Aiyanger, for the appellant.
1094 R. Ganapathy Iyer and T. M. Sen, for respondents Nos. 1 and 2. 1957.
May 6.
The Judgment of the Court was delivered by SINHA J.
This appeal by special leave and the summons under rule 30 of Order IV of the Supreme Court Rules, 1950, have been heard together and will be disposed of by this Judgment.
The appellant was an advocate of the Madras High Court of more than 25 years ' standing, and was enrolled as an advocate of the then Federal Court in the year 1939.
As will presently appear, he has had a chequered career at the Bar.
A Full Bench of the Madras High Court, presided over by the Chief Justice of that Court, by its judgment and order, dated December 3, 1954, has directed that the appellant 's name be removed from the roll of advocates of the Madras High Court, for "grave professional misconduct".
This Court, having been apprised of the result of the proceedings against the appellant in the High Court, issued notice to him to show cause why he should not be suspended from practice in view of the findings recorded by the High Court.
It appears that the appellant was engaged by one K. T. Appannah, ordinarily residing in Bangalore city, who will hereinafter be referred to as the Complainant, to complete a transaction of sale between the complainant and the owner of a house property in the city of Madras, whom we shall call, in the course of this judgment, as the vendor, after scrutinizing the title deeds in respect of the property which was the subject matter of the transaction of sale.
Before the appellant was engaged by the complainant, the bargain had been struck and the sale price of the property had been fixed at Rs. 15,000 out of which Rs. 1,300 had been paid to the vendor by way of earnest money.
A retired Government servant named Sundararajayya who was a relation of the complainant, and used to live near about the appellant 's residence, had also helped the complainant in acquiring the property, and in that connection, used to give instructions to the appellant 1095 on behalf of the complainant.
On May 11, 1951, the complainant sent, by way of a demand draft, the sum of Rs. 1,400, to the appellant, to meet the costs of stamp for the sale deed, and registration, and a fee of Rs. 150 to the appellant for his work in connection with the transaction.
In the course of the enquiry into the title to the property, it was discovered that there was a mortgage on the property, of Rs. 5,500, on the basis of a registered mortgage deed which had been filed in Court in connection with a litigation in respect of that very property, pending on the original side of the Madras High Court.
By negotiation, it was settled that Rs. 5,500, out of the sale price, shall be reserved for the discharge of the mortgage debt, and that the remaining amount of the consideration, will be paid to the vendor on completion of the sale transaction and delivery of vacant possession of the property.
The appellant wrote to the complainant that the latter should send him a demand draft for Rs. 5,600, in his name, for payment to the mortgagee, aforesaid, when the mortgage bond, properly discharged, would be handed over to the appellant, acting for the complainant.
In due course, on or about June 26, 1951, a demand draft in the name of the appellant, for Rs. 5,600, was sent by the complainant for the express purpose of discharging the mortgage debt, aforesaid.
On August 21, 1951, a cheque for Rs. 1,200, on September 26, 1951, a cheque for Rs. 500, and on October 19, 1951, a demand draft for Rs. 5,500, all in the name of the appellant, were sent by the complainant, in order to put him in funds for completing the transaction of sale and for payment of the consideration money to the vendor.
On July 9, 1951, the sale deed was executed by some of the executants, and on September 6, 1951, it was executed by the remaining executant, and registered.
Hence, it would appear that between May 11, 1951, and October 24, 1951, the complainant had paid to the appellant, the sum of Rs. 15,200, which was sufficient to pay the outstanding amount of the consideration for sale, namely, Rs. 13,700, including the mortgage amount, aforesaid, of Rs. 5,500, besides the costs of stamp and registration and the appellant 's fees.
But it appears 1096 that the vendor 's portion of the consideration money, was paid by the appellant on November 23, 1951, after some avoidable delay due to him, and vacant delivery of possession given to the appellant as stipulated between the parties.
It appears further that the complainant was in need of raising money on the security of the newly acquired property, and, therefore, was anxious to receive all the documents of title including the mortgage bond duly discharged.
But the appellant, for reasons of his own, went on postponing the payment of the mortgage money on some pretext or the other.
On being pressed for the mortgage deed, duly discharged, being handed over to the complainant, and as a result of a protracted correspondence, the appel lant sent, to the complainant, on June 26, 1952, a number of documents including "cancelled mortgage documents.
" It should be added here that the mortgage transaction of Rs. 5,500, had been entered into by the owner of the property in order to discharge previous mortgages on the same property.
All these documents had to be withdrawn from the High Court where they had been in the custody of the Court as already indicated.
Unfortunately, Sundararajayya died on June 28, 1952.
As a result of further correspondence, the complainant came to realise, to his cost, that the mortgage debt of Rs. 5,500 had not been paid to the mortgagee, as arranged between the appellant and the complainant who had put him in funds with the express purpose of obtaining a clear title to the property which he had agreed to purchase.
Thus, the complainant was reduced to the necessity of filing a regular petition of complaint in the High Court on November 14, 1952.
In that petition of complaint, the complainant made copious quotations from the letters addressed by the appellant to him and made reference to the fact that the mortgagee had already instituted a suit in court for recovery of the mortgage money, and had impleaded the complainant as party defendant to the suit.
The gravamen of the charge against the appellant was that he had not discharged the outstanding mortgage on the property purchased, for which he had been supplied with ample funds by the complainant 1097 and that he had not disclosed how and in what manner, the complainant 's money, meant for the purpose, had been utilized by the appellant.
In answer to the notice issued to him on February 16, 1953, the appellant submitted along statement by way of an explanation which runs into about 43 pages in print, which is more in the nature of an argument in justification of his conduct than a statement of facts.
The High Court referred the complaint, for inquiry and report, to the Bar Council.
Three members of the Council constituted the Tribunal which held a very elaborate inquiry.
After recording both oral and documentary evidence, the Bar Council made its report on May 5, 1954, holding that: ". . both the charges have been fully established and that the respondent has not only not used the moneys of the complainant for the purpose for which the money was sent, but that the respondent has not accounted at all for the sum of rupees 5,000, which was admittedly cashed by him and brought into his bank account though not in his professional account.
" In course of its report, the Tribunal found that the appellant had received all the amounts sent by the complainant, as set out above.
It also pointed out that an unfortunate feature of the case was that the mortgage bond in question which was one of the "cancelled mortgage documents", had not been produced before it.
The non production of the crucial document was explained to the Tribunal by counsel for the complainant.
It was stated that the mortgagedeed in question, along with other documents, had been left by the complainant with his counsel and that the whole bundle of papers including those documents had "disappeared from his office".
One can only surmise as to who may have been responsible for secreting those documents, or, for whose benefit, they had been stolen away, as alleged by counsel for the complainant.
Another ugly aspect of the proceedings was that a number of letters, admittedly written by the appellant to the complainant in connection with the transaction of sale, had been found by the High Court to have been 141 1098 tampered with or bodily substituted.
The Tribunal observed with particular reference to exhibit C 12, which was alleged to have been substituted for the original, that the learned counsel for the complainant had not persisted in the charge that it had been substituted; and that he did not press the charge that there had been certain alterations in some other letters which formed part of the voluminous correspondence that passed between the appellant and the complainant.
It may be observed here that no specific "charge" had been drawn up against the appellant in respect of those letters.
Hence, when the Tribunal stated that the ' charge ' had been withdrawn, it only meant to say that the learned counsel for the complainant did not persist in his allegations about those alterations or the wholesale substitution of exhibit C 12 about which we will have to say something more in the course of this judgment.
The Tribunal examined, in some detail, the particular defence of the appellant with reference to the specific charges made against him in respect of the sum of Rs. 5,600, admittedly sent by the complainant for the specific purpose of discharging the mortgage encumbrance on the purchased property.
It appears to have been the appellant 's case that the demand draft for Rs. 5,500, dated October 24, 1951, had been sent to him through Sundararajayya, and that the appellant, after getting the amount of the draft credited to his personal account, kept only Rs. 500 for payment to the vendor and made over to Sundararajayya the remaining 5,000 rupees in cash.
It was not his case that the complainant had instructed him to pay to Sundararajayya the 5,000 rupees, alleged by him to have been paid to Sundararajayya.
It was not even his case that he had taken any receipt for the said sum from Sundararajayya, though he alleged that he had given a receipt to Sundararajayya for the much smaller sum of Rs. 500 which he admitted to have kept in his hands on account of the complainant for payment to the vendee.
After reviewing the entire evidence and particularly the correspondence that passed between the appellant and the complainant, the 1099 Tribunal came to the conclusion that the appellant "dishonestly and fraudulently represented to the complainant that the mortgage had been cancelled and he picked out 3 out of the 36 documents received by him from the vendor, including the mortgage document( herein involved, and sent the same to the complainant describing them as 'cancelled documents '.
The only inference that one can draw is that the respondent having utilized the monies intended for the discharge of the mortgage for his own purpose put on the mortgage document the marks of cancellation and sent the same to the complainant at the pressure of the complainant 's demand for the discharged mortgage document".
The Tribunal also examined all the relevant evidence bearing on the payment back of Rs. 5,000, to Sundararajayya, out of the demand draft for Rs. 5,500, admittedly sent by the complainant and credited to the personal account of the appellant.
As already indicated, Sundararajayya had died before the commencement of the inquiry, and, therefore, his evidence could not be available to the Tribunal.
But in spite of the complete absence of the mortgage bond in question from the record, and of the possible explanation of Sundararajayya, the Tribunal had no difficulty in coming to the conclusion that the appellant "is clearly guilty not only of professional misconduct but also a clear breach of trust.
" This report of the Tribunal was closely examined by a Full Bench of the Madras High Court.
The learned Chief Justice who presided over the Bench, after carefully considering all that could have been said on behalf of the appellant, and the relevant evidence both oral and documentary, confirmed the findings of the Tribunal.
It went a little further and held that exhibit C 12 was not genuine and that the letters exhibits C 10 and C 11 contained interpolations at the instance of the appellant who was the respondent before the Court.
In this connection, the High Court made the following observations: " The learned Advocate General attacked the genuineness of this letter.
Whether there was another genuine letter of the same date or not, it is not 1100 necessary to decide.
No doubt, this letter is in the handwriting of the respondent.
After deep consideration of all the circumstances, we are clearly of opinion that this letter must have been introduced into the bundle is of documents with the complainant 's advocate at or about the same time, when the respondent made the interpolations in the letters dated 6 9 1951 and 6 10 1951, (exhibits C 10 and C 11).
" In the result, the High Court directed that the appellant 's name be removed from the roll of advocates of that Court.
Against this order, the appellant prayed for and obtained special leave to appeal to this Court.
It is convenient at this stage, to deal with the arguments advanced by the learned counsel for the appellant.
It has been suggested that the inquiry by the Bar Council Tribunal was "rambling and roving".
This objection is not altogether unfounded.
It appears from the order sheet maintained by the Tribunal that charges were framed on July 22, 1953, and the inquiry continued from date to date until the report was made on May 5, 1954.
The Tribunal handled the case on as many as 45 dates and the printed record of the inquiry runs into 296 pages in print.
This must have entailed a good deal of expenditure of time and money to the parties and one may particularly sympathize with the complainant who had to go through all this after having been deprived of at least Rs. 5,000, if not more, as found by the High Court and the Tribunal.
But if it is necessary to apportion blame, much of it may be laid at the door of the appellant himself, who appears to have spent a lot of ingenuity over trying to explain his dealings with his unfortunate client.
In answer to the charge framed by the Bar Council Tribunal, the appellant submitted a long "written answer" on September 27, 1953.
But before that, he had already submitted a 'written explanation ' on February 16, 1953, running into 43 pages in print, as already indicated.
There is no doubt that the appellant left no stone unturned to cloud the issues and to throw a veil over his mis deeds, as found by the Tribunal and the Madras High Court.
It is cleat, therefore, that it is 1101 not the appellant who should have made any grievance out of the so called rambling and roving inquiry.
It was next pointed out that the inquiry by the Tribunal into the alleged misconduct of the appellant was in the nature of a quasi criminal proceeding, and( as necessary corollaries to this proposition, it was contended (1) that the charge should have been more precise, that (2) it should have been proved beyond all reasonable doubt.
We have examined these contentions with reference to the record as prepared by the Tribunal and in our opinion, it has not been made out that the charge was so defective as to mislead the appellant or to cause any substantial prejudice to him or that there is any room for reasonable doubt as to the truth of the charges framed against the appellant.
The charges framed against the appellant were in these terms: " That you Mr. ' C ', in acting for the petitioner as his advocate in the matter of scrutinising the title deeds of No. 104 A, Lloyds Road, Gopalapuram, Madras, and putting through the sale of the said premises in petitioner 's favour, received from the petitioner Rs. 5,600 for the purpose of discharging a mortgage encumbrance on the property and that you have not applied the monies so entrusted to you then and there for the purposes of entrustment.
That you Mr. 'C ' have further not disclosed to the petitioner how and in what manner you have utilised the said monies and that you have not accounted for the same when demanded.
That you have for these reasons committed acts of professional misconduct liable to be dealt with under the Bar Councils Act.
" With reference to the charge in the first paragraph, it was contended that the charge, as it appears, has been completely answered by the appellant.
The argument runs as follows: The reference to the sum of Rs. 5,600, apparently is to the demand draft for the said amount dated January 26, 1951.
This amount, the appellant claimed, had been paid over to the vendee 1102 himself on November 23, 1951, when vacant possession of the premises purchased was delivered to the appellant.
This could have been a complete answer to the charge, if it had been found as a fact that out of the demand draft dated October 24, 1951, of Rs. 5,500, the appellant had paid back to Sundararajayya the sum of Rs. 5,000, as alleged by him.
But as found by the Court below confirming the conclusions of the Bar Council Tribunal, the appellant had failed to establish by reliable evidence that the sum of Rs. 5,000 had, as a matter of fact, been paid back to Sundararajayya, aforesaid.
Hence, on the findings, it is clear that the appellant had in his hands, more than ample funds to pay the entire consideration money including the mortgage encumbrance of Rs. 5,500, after deducting Rs. 1,300, which had already been paid to the vendor by way of earnest money, before the appellant came on the scene.
But it is sought to be pointed out on behalf of the appellant that the charge against him was not that he had not accounted for, or had embezzled any portion of the sum of RE. 5,500, sent to him last on October 24, 1951.
This argument assumes that the mortgage debt outstanding against the purchased property had to be discharged in specie, out of any particular item out of several instalments in which the complainant bad entrusted the total sum of Rs. 15,200, to the appellant, in connection with the transaction in question.
The appellant had to account for the due application of the said amount of Rs. 15,200, being the total sum placed in his hands by his client for the purpose of seeing through the transaction.
The appellant himself does not claim that he rendered account of the total sum thus entrusted to him by his client.
The appellant cannot be said to have duly accounted for all this sum unless it were held that he had paid Rs. 5,000 in cash to Sundararajayya.
On his own showing, if it is held, as it has been found by the High Court, in agreement with the Tribunal, that the sum of Rs. 5,000, had not been paid to Sundararajayya, the appellant has not accounted for the entire amount entrusted to him by his client.
This then is a clear 1103 case, shorn of all verbiage introduced by the appellant himself to cloud the issues, that the appellant was entrusted by his client with the sum of Rs. 15,200, out of which, he had to discharge the mortgage debt of Rs. 5,500, as settled with the mortgagee by the appellant himself, acting on behalf of the complainant.
The appellant has never pretended that he has paid this sum to the mortgagee.
This is made absolutely clear by the appellant 's statement in paragraph 58 of his written explanation ', to the following effect: " There is no question of 'my having discharged the mortgage.
I did not discharge the mortgage.
I never paid any money to the mortgagee or to anyone on his behalf.
I never told or wrote and I could not have told or written to any, at any time, that I had paid the mortgage claim.
The allegation or suggestion to that effect is untrue.
As already stated, I was not placed with the requisite funds on and after 21 11 1951.
" There is thus no escape from the conclusion that the appellant had not applied the sum of Rs. 5,500, in discharging the mortgage debt, aforesaid, out of the sum of Rs. 15,200, placed in his hands by the complainant for the specific purpose of acquiring a clear title to the property.
It would have been better if the Bar Council Tribunal had called upon the appellant to account for the entire amount of Rs. 15,200, which he admitted he had received from his client, instead of mentioning only the one item of Rs. 5,600.
That would have been a straight case to state against the appellant.
But there is no reason to hold that the appellant was in any way prejudiced in his defence by the omission in the charge to mention the entire sum of money entrusted to him.
It was repeatedly mentioned before us that the appellant might have been a fool in his dealings with the money placed at his disposal by his client the complainant.
There are clear indications in the record that the appellant, far from being a fool, is a knave, and that he knew fully what charge he had to meet.
There is no ambiguity in the charge and there is no doubt that the High Court was fully justified in wholeheartedly confirming the conclusions of the 1104 Tribunal.
It is equally clear to us that there is no room for any doubt whatsoever that the appellant had misappropriated his client 's money and that the High Court was fully justified in striking off his name from the roll of advocates of that Court.
It remains to consider the further points sought to be made on behalf of the appellant that the High Court was not justified in recording its findings in respect of exhibits C 10, C 11 and C 12, quoted above, specially when the learned counsel for the complainant had not pressed those allegations of interpolation and forgery, before the Tribunal.
This contention is well founded.
We have, therefore, left completely out of account, those allegations of material alterations in exhibits C 10 and C 11 and the alleged wholesale substitution of the original of exhibit C 12.
In considering the question whether the charges framed against the appellant have been substantiated, we have proceeded on the assumption that these letters, as they appear at present, are genuine.
They contain the statements of the appellant himself and constitute an attempt to explain away his acts of omission and commission in relation to the transaction of sale for which he had been engaged by the complainant.
Those statements are wholly out of tune with the rest of the record and particularly inconsistent with the rest of the correspondence which had admittedly passed between the appellant and the complainant.
We have not dealt, in detail, with the voluminous correspondence between the parties because this being an appeal by special leave, we have not found it necessary to examine very closely, the findings of fact recorded by the High Court in concurrence with the Tribunal.
The case against the appellant, as made out by the complainant, is fully supported by a large body of reliable oral and documentary evidence which is consistent only with the guilt of the appellant, and wholly inconsistent with his innocence, notwithstanding the fact that he made a belated but vain attempt to white wash his misconduct.
Turning to the summons issued by this Court to the appellant, the first question that arises is the 1105 procedure according to which this summons is to be disposed of Should this Court initiate independent proceedings in the sense of making fresh inquiry after recording evidence pro and con, and then come to its conclusions, or, should this Court proceed upon the, inquiry already made by the High Court through the Bar Council Tribunal, and record its orders after giving the Advocate concerned an opportunity of being heard against similar orders being passed by this Court, in view of the consideration that an advocate of this Court may be entitled to practice in any of the subordinate courts in India even though he may not be borne on the roll of advocates of any particular High Court ? In this connection, we have precedents of the time of the Federal Court and of this Court which are analogous to the case in hand.
In those cases, the Federal Court and, subsequently, this Court acted upon the report of the High Court containing its orders in respect of an advocate on its rolls and passed orders after giving an opportunity to the advocate concerned to show cause why disciplinary action should not be taken against him in view of the findings of the High Court.
In those cases, it was not considered necessary to have a fresh inquiry made and the Court being satisfied that the orders of the High Court were well founded in fact and law, passed similar orders.
Curiously enough, the first precedent of the Federal Court, In the matter of an Advocate (1), relates to the case of the appellant himself, at an earlier stage of his career as an advocate.
The Court consisting of Sir Maurice Gwyer, Chief Justice, Sir section Varadachariar and Sir Torick Ameer Ali JJ.
dealt with his case.
The appellant had been charged in respect of events which had happened in 1934 35, and was convicted in 1941, at the Madras Sessions, of only one out of 5 counts, of an attempt to cheat.
He served a sentence of 18 months ' rigorous imprisonment.
Then, the matter was dealt with by the High Court on a report made by the Tribunal of the Madras Bar Council, to the effect that the (1) Case No. XVI of 1942, decided on March 23, 1943.
142 1106 appellant 's conviction involved moral turpitude, and in 1942, the Madras High Court ordered him to be struck off the roll of advocates of that Court.
In the course of their short order, the ' Federal Court made the following observations: " Having regard to the decision of the High Court of Madras in a matter which may be regarded as analogous (In re an Advocate 1. L. R. 46 Mad.
p. 903) we have not dealt with that before us as if an order made against the respondent must follow automatically from the result of the proceedings in Madras, and we have heard the respondent at length in support of the written memorandum submitted.
As a result of such hearing however we are not satisfied that circumstances exist so exceptional or extraordinary as to make it either possible or proper for us to disregard the verdict or the subsequent order of the High Court against the respondent. . .
In these circumstances we have to hold that grounds have not been adduced sufficient to prevent an order removing the respondent from the rolls of this Court following upon the order made by the High Court of Madras, and such an order must now be made.
" The appellant ceased to be on the roll of advocates of the Madras High Court and of the Federal Court as a result of the Federal Court order passed, as quoted above, some time in 1943.
In 1948, the appellant moved the Federal Court for reinstatement as an advocate of that Court in view of the fact that he had been re instated by the Madras High Court by its order dated March 22, 1948.
That Court had passed its orders on affidavits and certificates of good character during the period the advocate stood struck off the roll of advocates.
A Judge of the Federal Court, during the long vacation, passed orders reinstating the appellant as an advocate of that Court, following the orders passed by the Madras High Court.
That is how the appellant was re introduced to the profession and within about two years of his reinstatement, the complainant fell a victim to the appellant 's dishonest and fraudulent conduct, as found above.
1107 In another case, In re: D. A. Shanmugasundaraswami(1), an Advocate, coming again from the Madras High Court, a similar proceeding followed.
One D. A. Shanmughasundaraswami, an advocate of the Madras High Court, had been dealt with by that Court for c professional misconduct on several counts.
After the necessary inquiry and report by the Tribunal of the Bar Council, the High Court directed his name to be, struck off the roll of advocates of that Court.
As that advocate was also borne on the roll of advocates of the Federal Court, summons under Order IV, rule 29, of the rules of that Court was issued, and the Federal Court consisting of Kania, Chief Justice, Fazl Ali, Patanjali Sastri, Mahajan and B. K. Mukherjee JJ.
by their order dated January 24, ordered that his name should be similarly removed from the roll of advocates of the Federal Court.
Their Lordships, relying upon the precedent referred to in the last paragraph, passed their order in these terms: " Having regard to a precedent of this Court, we did ,lot consider that on the footing of the order made by the Madras High Court an order of removal of his name from the Rolls of this Court should automatically follow.
He accordingly argued his case before us in detail.
After hearing the respondent at great length, we see no reason to differ from the conclusion of the Madras High Court.
We are not satisfied that circumstances exist which make either possible or proper for us to disregard the verdict or the subsequent order of the Madras High Court against the respondent.
Under the circumstances we hold that no sufficient grounds have been adduced to prevent an order removing the respondent from the Rolls of this Court, following upon the order made by the Madras High Court, and such an order is therefore made.
" This Court dealt with the case of an advocate of the Bombay High Court, who was also enrolled as a senior advocate of this Court.
That case is In the matter of Mr. 'G ', a Senior Advocate of the Supreme Court(2 ).
After (1) Misc.
Case No. X of 1948, decided on January 24, 1949.
(2) (1955] 1 S.C.R. 490. 1108 the advocate had been suspended from practice by the Bombay High Court for six months, and that order was brought to the notice of this Court, this Court dealt with the matter under Order IV, rule 30, and passed orders similar to that passed by the Bombay High Court.
Another case from the Bombay High Court, dealt with by this Court is In the matter of ' D ', an Advocate of the Supreme Court(1).
When the matter was dealt with by this Court, under Order IV, rule 30 of the Rules, the advocate, after having been suspended from practice for a period of one year, by the Bombay High Court, prayed that a fresh inquiry might be held into the matter.
This Court rejected that prayer of the advocate, and proceeded upon the record as made by the High Court through the Bar Council.
This Court agreed with the view taken by the Bombay High Court about his misconduct in connection with a criminal trial, and suspended the advocate from practice for a period co terminus with the period of suspension fixed by the High Court.
On a review of the aforesaid precedents, it may be taken that the following principles have been laid down by the Federal Court and by this Court when dealing with a summons under rule 30 of Order IV of Supreme Court Rules, or, its equivalent rule of the Federal Court: (1) Any order by a High Court, by way of disciplinary action against an advocate borne on the roll of advocates both of a High Court and of this Court, is not automatically followed by a similar order by this Court; (2) this Court need not start a fresh inquiry by way of recording evidence over again against the advocate concerned, for professional misconduct; (3) it is enough that this Court should generally examine the record prepared by the Bar Council of a High Court, under the directions of that Court, on the basis of which the High Court has passed its orders; and take into account the findings of the High Court; (1) ; 1109 (4) of course, this Court has to grant a reasonable opportunity to the advocate concerned, of being heard against the action proposed to be taken against him under its disciplinary jurisdiction; (5) it is open to this Court, in an appropriate, case to permit the advocate to adduce such additional evidences it thinks fit; (6) this Court, after hearing the advocate or his legal adviser and, if necessary, the Attorney General, or such other advocate as may be appointed to place the view point of the legal profession generally, or of the complainant or the aggrieved party if he desires to be heard in the matter, may pass such order as it may deem fit and proper, in its judicial discretion.
It may be noted that in the instant case, at the final hearing, we did not find it necessary to adjourn the hearing to issue notice to the Attorney General, nor was any request made in that behalf.
In view of these precedents, as also in view of the fact that ordinarily it is necessary that a person, in order to be entitled to be enrolled as an advocate of the Supreme Court, should be borne on the roll of advocates of a High Court, proceedings in this Court, under rule 30 of Order IV, of the Rules, should normally be treated as a natural sequel to the proceedings in the High Court under the Bar Councils Act.
If one is not a fit and proper person to continue on the roll of advocates of a High Court, a fortiori he cannot be permitted to continue on the roll of advocates of this Court.
It is a great privilege to be borne on the roll of advocates of the Supreme Court, and only such persons as show a high degree of integrity of character should be so enrolled.
Any person, who has been found by the High Court to have fallen from that high standard of integrity of character required of an advocate of a court, must suffer the consequences of his name being removed from the roll of advocates of this Court.
As already indicated, it was rather unfortunate that the appellant, after being once struck off the roll of advocates of the Madras High Court and of the Federal Court, should have been reinstated, and thus been ennobled to deal 1110 with clients who have to trust their legal advisers with moneys in the course of their fiduciary relationship.
These protracted proceedings against the appellant leading up to the summons under rule 30 of Order IV of the Supreme Court Rules have ended in the removal of the appellant 's name from the roll of advocates of the High Court and of this Court, but only after the complainant has lost his good money.
It is clear, therefore, that the continuance of the appellant in the legal profession is a serious menace to the profession itself, which requires a high degree of integrity of character and sense of responsibility in which the appellant has been found singularly lacking.
In view of these considerations, the appeal must be dismissed and the rule made absolute with the result that the appellant 's name shall stand removed from the roll of advocates of this Court.
Appeal dismissed.

summary/full:
The appellant, an Advocate whose name was borne on the rolls of the Madras High Court and of the Supreme Court, was found guilty of gross professional misconduct by the Madras High Court on the report of the Bar Council Tribunal and debarred from 1093 practising in that Court.
The charge against him was that he did not utilise a particular sum of money entrusted to him by his client to clear a mortgage in order to secure a clear title for him in completion of a transaction of sale, for that purpose nor account for it.
The appellant preferred an appeal by special leave and this Court, being apprised of the order passed by the ' Madras High Court, issued a Rule under r. 30, 0.
IV of the Supreme Court Rules.
It was found by this Court that the charge against the appellant was fully supported by a large volume of evidence on record, both oral and documentary.
Held, that the appeal must be dismissed and the Rule made absolute and the appellant 's name removed from the roll of Advocates of this Court.
It is a great privilege to be an Advocate of this Court and only such persons as can satisfy a very high standard of integrity of character can be enrolled as such.
An Advocate who is found to have fallen from that standard and is debarred by the High Court cannot be considered fit to practise in this Court.
Proceedings under r. 30, 0.
IV Of the Supreme Court Rules should be treated as a natural sequel to proceedings in the High Court under the Bar Councils Act and although an order made by the High Court under that Act is not to be automatically followed by this Court, it is not necessary that this Court should start a fresh inquiry on evidence.
It would be enough for it to generally examine the record prepared by the Bar Council Tribunal and take into account the findings of the High Court based on such report.
Reasonable opportunity must, however, be afforded to the Advocate of being heard against the action proposed to be taken against him and adducing such additional evidence as this Court may think proper.
The Attorney General or any other Advocate representing the Legal Profession generally or the complainant or the aggrieved party may also be heard before the final decision is arrived at.
In the matter of an Advocate, Case No. XVI of 1942, decided on March 23, 1943, In Ye: D. A. Shammugasundaraswami, an Advocate Misc.
Case No. X of 1948, decided on January 24, 1949, In the matter of Mr. 'G ', a Senior Advocate of the Supreme Court, and In the matter of 'D ', an Advocate of the Supreme Court; , , referred to.


judgement:
Civil Appeal No. 1514 of 1970.
From the Judgment and order dated the 14th February, 1959 of the Allahabad High Court in Special Appeal No. 92/1950.
C.M. Lodha, Mrs. Uma Jain & R.K.Mehta for the Appellants.
Vishnu Mathur and S.K. Chaturvedi for the Respondents.
The Judgment of the Court was delivered by DESAI J.
Appellants claiming to be the Khudkasht holders of the Zamindars of the plots of land involved in dispute filed a suit for possession under Sec.
180 of the U.P. Tenancy Act, 1939 (Tenancy Act 'for short) against respondents Nos. 4 and 5 ( 'respondents ' for short) who were and are in actual and physical possession and cultivating the land.
This suit ended in a decree in favour of the appellants on September 30, 1948 and in execution of the decree, the appellants assert that they obtained actual and physical possession from the respondents on December 2, 1948.
On the advent of the U.P. Zamindari Abolition and Land Reforms Act, 1950 ( '1950 Act ' for short) the appellants claimed to have acquired the status of Bhumidars in respect of the plots of land in dispute.
The respondents moved an application under Section 232 of the 1950 Act against the appellants alleging that as they were in actual and physical possession during the year 1356 Fasli and were subsequently dispossessed in view of the provision contained in Sec. 20 of the 1950 Act, they have acquired the status of adhivasis and therefore, they are entitled to regain possession.
This application was made to the Assistant Collector within the prescribed period of limitation.
The Assistant Collector rejected the application holding that as the respondents were not in possession through the entire year of 1356 Fasli but only for a part of the year, they have not acquired the status of adhivasis and were not entitled to regain possession.
The respondents carried the matter in appeal to the Additional Commissioner who held that the respondents had acquired the status of adhivasis and were entitled to regain possession and accordingly allowed the appeal by his order dated June 1956 and in compliance with this order the respondents regained actual and physical possession of the land and since than till today are in possession of the same.
291 According to the appellants the village/villages in which the plots of land involved in the dispute are situated were put into consolidation under the U.P. Consolidation of Holdings Act, 1953 ( '1953 Act ' for short) and therefore, the Additional Commissioner had no jurisdiction to decide the appeal of the respondents on merits but should have stayed the same.
In the meantime according to the appellants a statement under Sec. 8 and 8 A of the 1953 Act was published in which according to them they were shown as Bhumidars of the plots in question and the respondents had failed to object to the entries.
However, it appears that since the appeal preferred by the respondents was allowed by the Additional Commissioner, pursuant to his judgment the entries in the statement were corrected in favour of the respondents and they regained actual and physical possession of the land.
The appellants carried the matter in appeal to the Board of Revenue, which was allowed holding that once the village/villages in which the plots involved in the dispute are situated have been put into consolidation and a notification under Sec. 4 of the 1953 Act is issued, the Additional Commissioner should have stayed the appeal as the law then stood, and not heard it on merits and allowed the same.
The appeal was accordingly remitted to the Additional Commissioner to retain it on his file and stayed further hearing of the appeal.
The appellants on the reversal of the decision of the Additional Commissioner moved an application under Sec. 144 of Code of Civil of Procedure, before the Sub Divisional officer on September 11, 1958 praying for restitution of possession.
Thus started the second round of litigation.
The Sub Divisional officer by his order dated April 14, 1959 rejected the application of the appellants holding that as the rival claims have been decided under the 1953 Act, he has no jurisdiction to re open the proceeding concluded before the authorities under the 1953 Act and the decision therein recorded has become final.
He was further of the opinion that if any redressal consequent upon the reversal of the decision of the Additional Commissioner was to be obtained, the appellants should have moved the authorities under the 1953 Act which they having failed to do, no relief by way of restitution can be granted by the Sub Divisional officer.
The appellants carried the matter in appeal to the Additional Commissioner who by his order dated July 7, 1959 upheld the decision of the Sub Divisional officer and dismissed the appeal.
The appellants after an unsuccessful appeal to the Board of Revenue approached the Allahbad High Court 292 in writ Petition No. 622 of 1960.
This writ petition was dismissed by a learned Singal Judge of the High Court holding that as the authorities under the Consolidation Act 1953 Act have allotted the plots in question to the respondents on the strength of the Additional Commissioner, on the reversal of that order, the appellants should have approached the authorities under the 1953 Act for recording them as holders of the plots and for correction of the statement by filing appropriate proceeding.
It was held that as the appellants failed to seek relief before the authorities having jurisdiction in the matter, they cannot succeed in a proceeding under Sec. 144 of the Code of Civil Procedure because if such a relief is granted, it would tentamount to interfering with the decisions recorded by the authorities under the 1953 Act which have become final.
It was observed that after the final decision of the consolidation authorities it is always open to the petitioners to move the first appellate court to decide the appeal in terms of the consolidation authorities or it was open to them, to have moved the appropriate consolidation authorities at appropriate time.
That having not been done, they were not entitled to relief at the hands of the court.
The writ petition was accordingly rejected on January 27, 1966.
Thereupon the appellants started the third round of litigation.
After having concurrently failed before all authorities for obtaining relief under sec.
144 of the Code of Civil Procedure, the appellants filed Suit No. 73 of 1967 under Sec.
209 and 229(b) of the 1950 Act against the respondents in August, 1966.
In this suit they claimed a decree for possession on the ground that as they are Bhumidars of the plots in question under the 1950 Act, and as against them the respondents are not entitled to retain possession they are entitled to be reinducted in possession.
It was alleged that the respondents cannot continue to remain in possession which they obtained under the order of the Additional Commissioner because that order no more exists and has been reversed by the Board of Revenue at the instance of the appellants.
The suit was resisted by the respondents and the State of U.P. which had been impleaded as one of the defendants inter alia contending that the suit is barred under Sec.
49 of the 1953 Act as also it was barred by limitation It was also contended that the plots were finally allotted in consolidation proceedings to the respondents and that order having not been challenged, the same has become final and the Revenue Court has no jurisdiction to nullify that order even if it is satisfied that 293 that order was not consistent with law or facts.
The learned Assistant Collector held that on the date of vesting of the estate, the appellants become the Bhumidars and the suit is not barred under Sec.
49 of the 1943 Act.
It was also held that even though the suit was barred by limitation, appellants were entitled to the benefit of the provision contained in Sec.
14 of the .
It was further held that as against the appellants, the respondents were not entitled to retain possession as the order under which they obtained possession no more exists.
Consistent with these findings, the appellants suit for possession was decreed.
The respondents preferred an appeal to the Additional Commissioner who by his judgment and order dated August 23, 1967 allowed the same and set aside the judgment of the Assistant Collector and dismissed the appellants suit for possession inter alia holding that a decision on an application under Sec.
239 of the 1950 Act would operate as res judicata in respect of the suit of the appellants from which the appeal arose and the suit was also barred by Sec.
49 of the 1953 Act nor were the present appellants plaintiffs in the suit entitled to the benefit of the provision contained in Sec.
14 of the .
The suit accordingly was liable to be dismissed as barred by limitation.
Consistent with these findings the appeal of the respondents was allowed and the plaintiffs ' suit was dismissed.
The appellants ' second appeal to the Board of Revenue was summarily dismissed whereupon they moved the High Court in Writ Petition 19/1968.
A learned Single Judge of the High Court rejected the writ petition holding that the finding of the statutory authorities that the suit was barred by limitation was unexceptional and that they were rightly denied the benefit of the provision contained in Sec.
14 of the .
The learned Judge also held that the suit of the appellants ' was also barred by Sec. 10 (sic) of the Code of Civil Procedure.
An application was moved before the learned Judge seeking an amendment in the writ petition so as to be able to question the correctness of the order of allotment made by the authorities under 1953 Act in favour of the respondents and praying for quashing the same.
The learned Judge was not persuaded to grant the amendment application and the same was rejected.
The learned Judge also held that the respondents had become adhivasis and were entitled to regain possession both in view of Sec. 20 of the 1950 Act and cl.
(c) of sub sec.
(1) of Sec. 27 of the United Provinces 294 Tenancy (Amendment) Act, 1947.
While holding that the respondents had become adhivasis under Sec. 20, learned Judge observed that a person evicted after 30th June 1948 but within the year 1356 Fasli would be deemed to be in possession in that year till the date of his ejectment and he may thus be in possession for apartment of the year, but if he is recorded in the year 1356 Fasli, he would be a person recorded as an occupant in 1356 Fasli within the meaning of the first part of cl.
(b) (i), even though he may not have been actually in possession throughout the year and thus the necessary requirements to clothe him with the status of adhivasi would be wholly fulfilled.
Consistent with this finding, the writ petition was dismissed with costs.
Undaunted by the continuous repeated rejection of their claim, the appellants carried the matter in Special Appeal No. 92 of 1969 which was heard by a Division Bench of the Allahabad High Court presided over by the then learned Chief Justice.
Before the Division Bench only two points were canvassed: (1) whether the appellants were entitled to the benefit of the provision contained in Sec.
14 of the and (2) whether the suit was barred under Sec.
49 of the 1953 Act.
On both these points, the Division Bench agreed with learned Single Judge and rejected the appeal of the appellants.
Hence this appeal by certificate under article 133 (1)(a) of the Constitution.
At the commencement of the hearing, Mr. Lodha urged that the appeal is filed by certificate under article 133 (1)(a) and (c) of the Constitution which would mean that apart from the valuation, the Division Bench granting the certificate was satisfied that there was substantial question of law of general public importance which ought to be decided by this Court.
However, when we examined the certificate and the order granting the same, it transpired that the certificate was granted under article 132 (1)(a) of the Constitution and not under article 133 (1)(c) though there are some observations which may generate a belief that the High Court was satisfied that the case involved a substantial question of law of general public importance which ought to be decided by this Court.
Mr. C.M. Lodha, learned counsel urged that once the order of Additional Commissioner dated June 15, 1956 allowing the appeal of the respondents against the dismissal of their application 295 under Sec.
232 of the 1950 Act by the Sub Divisional Officer was reversed, they have neither a legal nor equitable right to be in possession and that the appellants pilloried and pushed from pillar to post denying substantial justice on technical grounds.
His grievance was that on a very narrow view of law a genuine claim is refused.
Apart from the two legal contentions, even this submission does not commend to us.
Prior to the introduction of the 1950 Act, there used to be a vertical hierarchy of absentee landlords who thrived at the cost of the actual cultivators had no security of tenure.
It was a feudal order, to remove all intermediaries between the actual cultivator and the State, 1950 Act was introduced with the avowed object especially of abolition of Zamindari System and to assure to the actual cultivator security of tenure and fixity of rent.
The promise of independence of ensuring the tillers of the soil to be the owners thereof, was being gradually implemented.
The Zamindari Abolition Act was a step in that direction.
Leaving aside all the nuances of agrarian reforms, absentee landlords and intermediaries who thrived on the labour of actual cultivators were to be removed and the burden on the land was thus to be reduced and the cultivators were to be protected against exploitation.
It is notorious that before such radical step of abolition of vested interest in the land is taken, there is a fanfare of publicity with the result that those whose interests were to be affected would try to screen them away from the purview of the proposed statute by taking such steps at a time when the protection was not available to the tenants and offer a fait accompli when the agrarian reform legislation is put on the statute book.
The facts in this case would illustrate the point and would negative any claim made on behalf of the appellants.
The entire claim of the appellants throughout this litigation spreading roughly over three and a half decades is founded upon a decree obtained under Sec.
180 of the U.P. Tenancy Act, 1939 against respondents Nos 4 and 5.
We repeatedly asked Mr. Lodha to tell us under what title the appellants sought possession and succeeded in evicting the respondents who were admittedly the actual cultivators and against whom the suit for eviction was filed.
We practically for the answer in vain, save and except being told that as that aspect was never in dispute, relevant facts were not available, nor the decree is on record.
However, what emerges from facts as conceded on behalf of the appellants is 296 that they were the Khudkasht holders of the erstwhile Zamindars and in that capacity they filed suit for possession against the respondents under Sec.
180 of the 1939 Act.
One has not to labour much to appreciate who are Khudkasht holders of the Zamindars.
They can be styled as alter ego or proxies of the Zamindars.
In other words, this proxy of Zamindars filed a suit for eviction of the respondents and as law then stood succeeded as per decree dated Sept. 30, 1948 and in execution whereof on December 2, 1918 dispossessed the actual cultivators the respondents and got into possession.
This was done when agrarian reform law was on the anvil.
The entire edifice of the present litigation by the appellants is founded on this decree, a decree which because of the subsequent developments of law has become legally unsound and equitably unjust.
On the advent of the 1950 Act, the appellants assert that they became the Bhumidars of the plots.
Assuming that the appellants have acquired the status of Bhumidars, the same was subject to the provision contained in Sec.
20(b) read with Explanation 1 of 1950 Act according to which the respondents would become adhivasis of the plots.
It is not necessary to examine this aspect in detail because the learned Single Judge of the High Court found as a fact that for a portion of the year 1356 Fasli, the respondents were in possession as occupants and were cultivating the land and their names were so recorded in the khasra of 1356 Fasli and that they were dispossessed but were entitled to regain possession under Sec.
27 of the United Provinces Tenancy (Amendment) Act, 1947 and therefore they have become Adhivasis of the plots.
No amount of argument of Mr. Lodha could persuade us to disturb this finding.
It is correct in law, consistent with the record and eminently just.
Such adhivasis if they had lost possession were entitled to regain the same be making an appropriate application under Sec.
232 of the 1950 Act.
The respondents did move such an application which ultimately was accepted by the Additional Commissioner.
This is not in dispute.
Therefore, primarily, legally and additionally in equity, the respondents have an iron clad case to be in possession against appellants.
Therefore we find no substance in the contention of Mr. Lodha that an eminently just claim is refused on narrow technical view of matter.
The case is the other way round.
297 Reverting to the two points on which the suit of the appellants was dismissed, Mr. Lodha pointed out that the High Court and all the statutory authorities were in error in denying to the benefit of the provision contained in Sec.
14 of the and dismissed the suit as barred by limitation.
After the appellants lost upto the High Court in the proceeding arising upon their application under Sec. 144 of the Code of Civil Procedure, the appellants filed a suit under Secs.
209 and 229(b) of the 1950 Act.
Under the order of the Additional Commissioner, the respondents obtained possession of the plots on June 21, 1956.
The present suit was filed in August, 1966.
Suit under Sec.
209 of the 1950 Act has to be filed within the prescribed period of limitation and it is not in dispute that the suit filed by the appellants in August, 1966 was filed beyond the period of limitation.
The appellants submitted that they are entitled to the benefit of the provision contained in Sec.
14 of the .
The learned Judge and the Division Bench of the High Court have concurrently held that the appellants were not entitled to the benefit claimed by them Sec.14(1) of the reads as under: "14(1): In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it." In order to attract the application of Sec.
14(1), the parties seeking its benefit must satisfy the court that: (1) that the party as the plaintiff was prosecuting another civil proceeding with due; diligence; (ii) that the earlier proceeding and the later proceeding relate to the same matter in issue and (iii) the former proceeding was being prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
It may be assumed that the earlier proceeding under Sec.
144 of the Code of Civil procedure was a civil proceeding for the 298 purpose of Sec.
It may as well be assumed in favour of the appellants that they were prosecuting the same with due diligence and in good faith, as they relentlessly carried the proceeding upto the High Court invoking its extraordinary jurisdiction.
The first of the aforementioned three cumulative conditions can be said to have been satisfied.
The appellants must further satisfy the court that the earlier proceeding i.e. the one under Sec.
144 of the Code of Civil Procedure related to the same matter in issue, as in the present suit.
There the appellants are not on sure ground.
In a proceeding under Sec.
144 of the Code of Civil Procedure, the party applying for restitution has to satisfy the court of first instance that a decree under which it was made to part with the property is varied or reversed or modified in appeal or revision or other proceeding or is set aside or modified in any suit instituted for the purpose and therefore, restitution must be ordered.
144 is founded on the equitable principle that one who has taken advantage of a decree of a court should not be permitted to retain it, if the decree is reversed or modified.
That is why the marginal note to Sec. 144(1) reads 'application for restitution ' and the word 'restitution ' in its ethological sense means restoring to a party on the modification, variation or reversal of a decree what has been lost to him in execution of the decree or in direct consequence of the decree.
In such a proceeding, the party seeking restitution is not required to satisfy the court about its title or right to the property save and showing its deprivation under a decree and the reversal or variation of the decree.
On the reversal by the Board of Revenue in the appeal filed by the appellant of the order of the Additional Commissioner under which the respondents obtained possession, the appellants merely claimed in their application under Sec. 144 that in view of the reversal of the order by the Board of Revenue the respondents are not entitled to retain possession and that restitution should be ordered because the appellants lost possession under the order of the Additional Commissioner which was reversed by the Board of Revenue.
The cause of action was the reversal of the order Additional Commissioner.
When they failed to obtain restitution, the appellants filed a substantive suit under Sec.
209 and 229(b) of the 1950 Act in which they claimed that they have become the Bhumidars of the plots in dispute and that the respondents are not entitled to retain possession as their possession is not in 299 accordance with the provisions of 1950 Act.
It was a suit on title as Bhumidars for possession against respondents alleging unauthorised retention of possession.
It had nothing to do with the order of the Additional Commissioner.
In this suit the appellants were bound to prove that the respondents were not entitled to retain possession under any of the provisions of the 1950 Act.
Incidentally, the order of the Additional Commissioner and its reversal would figure as evidence but it is difficult to accept that the subsequent proceeding relates to the same matter in issue as was involved in the earlier proceeding.
In the application under Sec.
144 Code of Civil Procedure only allegation to be proved for relief of restitution is that the decree or order under which respondents obtained possession from appellants has been reversed, modified or varied.
They need not prove title or right to be in possession.
In the suit, not only title to the land as Bhumidar must be also the respondents had not a tital of title to retain possession.
And respondents can allege and prove that under the very 1950 Act under which appellants became Bhumidars, the respondents have become adhivasis entitled to retain possession against the appellants.
This defence was not open to them in the proceeding under Sec. 144.
It was, however, submitted that the appellants were seeking, in both the proceeding, possession of the plots involved in the dispute on the ground that they are ultimately entitled to the possession thereof and the possession of the respondents vis a vis the appellants was unauthorised and they were not entitled to retain possession against the appellants.
This is far from convincing.
One can at best say there is a grey area and that as the provision of Sec. 14 is required to be construed liberally, therefore we may not have denied the benefit it this was the only aspect against the appellants.
The question however is whether the third condition for attracting Sec.
14(1) is satisfied.
The appellants must further satisfy the court that the earlier proceeding failed on account of defect of jurisdiction or other cause of a like nature.
Now at no stage it was contended that the authority to whom the application was made for restitution had no jurisdiction to entertain the application, nor through the course of the proceedings upto the High Court anyone, anywhere, questioned the jurisdiction of the authority to grant restitution.
Therefore, it can be safely said that the previous proceeding did not fail on account of defect of jurisdiction.
300 The next limb of the submission was that as in the former proceeding restitution was refused on the ground that in the proceeding under the 1953 Act the land in dispute was allotted to the respondents and the allotment had become final, it can safely be said that the proceeding failed on account of a cause of like nature such as defect of jurisdiction and the appellants would be entitled to exclude the time spent in that proceeding while computing the period of limitation in the suit.
It is true that where the expression as a whole reads 'from defect of jurisdiction or other cause of a like nature is unable to entertain it ' the expression 'cause of a like nature ' will have to be read ejusdem generis with the expression 'defect of jurisdiction '.
So construed the expression 'other cause of a like nature ' must be so interpreted as to convey something analogous to the preceding words 'from defect of jurisdiction '.
The defect of jurisdiction goes to the root of the matter as the court is incompetent to entertain the proceeding.
The proceeding may as well fail for some other defect.
Not all such defects can be said to be analogous to defect of jurisdiction.
Therefore the expression 'other cause of a like nature ' on which some light is shed by the Explanation (C) to Sec.
14 which provides "misjoinder of parties or causes of action shall be deemed to be a cause of like nature with defect of jurisdiction", must take its colour and content from the just preceding expression, 'defect of jurisdiction '.
Prime facie it appears that must be some preliminary objection which if it succeeds, the court would be incompetent to entertain the proceeding on merits, such defect could be said to be 'of the like nature ' as defect of jurisdiction.
Conversely if the party seeking benefit of the provision of Sec.
14 failed to get the relief in earlier proceeding not with regard to anything connected with the jurisdiction of the court of some other defect of a like nature, it would not be entitled to the benefit of Sec.
Where, therefore, the party failed in the earlier proceeding on merits and not on defect of jurisdiction or other cause of a like nature, it would not be entitled to the benefit of Sec.
14 of the .
(Sec India Electric Works Ltd. vs James Mantosh & Anr (1) The appellants failed in the earlier proceeding not on the ground that the authority had no jurisdiction to entertain the 301 application nor on the ground that there was any other defect of a like nature, but on merits in as much as the authorities and the High Court held that in view of the decision of the authorities under 1953 Act, the appellants are not entitled to restitution.
That was the decision on merits of the dispute and the appellants ' application was rejected.
Therefore, the High Court rightly declined to grant benefit of the provision of Sec.
14 of the to the appellants.
The second contention of the respondents which found favour with the High Court was that the suit of the plaintiff was barred by Sec 49 of the 1953 Act.
49 reads as under: "Bar to civil jurisdiction: Not with standing anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure holders in respect of land lying in area, for which a notification has been issued under sub section (2) of Section 4 or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, shall be done in accordance with the provisions of the Act and no civil or revenue court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under the Act.
" The admitted facts are that the authority under the 1953 Act allotted the plots in question to the respondents.
It may be that the decision may appear to be erroneous in as much as it was founded on the decision of the Additional Commissioner in favour of the respondents which was reversed by the Board of Revenue.
The question is once the allotment under 1953 Act became final, would a suit lie before the civil or revenue court with respect to rights in land or with respect to any other matter for which a proceeding could or ought to have been taken under the 1953 Act ? When the village in which the plots in dispute are situated was put into consolidation was not made clear to us.
But the statutory authorities and the High Court while dismissing the appeal of the appellants had noticed that the village was put into consolidation several years before the suit from which the present appeal arises was filed and village was denotified in the year 1958.
302 Once the village was denotified, the allotment made under the 1953 Act became final.
The final allotment cannot be questioned by the suit before civil or revenue court in view of the bar enacted in Sec. 49.
Mr. Lodha, however, urged that when the matter was before the learned Single Judge in the High Court an application for amendment of the writ petition was moved on behalf of the appellants seeking to challenge that decision of the authorities under the 1953 Act by which the names of the respondents were introduced in the plots and the allotments were made in favour of them.
This application for amendment was rejected by the learned Single Judge.
The point was not canvassed before the Division Bench and we are of the opinion that it is of no use trying to infuse life into this carcass after a lapse of nearly two decades.
Further Sec.
232 A which was introduced by Sec.
48 of Act XX of 1954 in the 1950 Act conferred right on adhivasi object anyone who has dispossessed him and to such a proceeding the provision of Section 209 will mutatis mutandis apply as if he was an asami.
This provision would have certainly enabled the respondents to claim possession from the appellants even if they were Bhumidars on the gound that the respondents were adhivasis as held by the High Court.
No useful purpose would therefore, be served by re opening the orders and decision of the authorities under the 1950 Act which have become final These were all the contentions urged in the appeal and as we find no merit in any of them the appeal fails and is dismissed with no order as to costs.

dataset_name: IN-Abs

summary/full:
The appellants, in execution of a decree passed in a suit filed by them under section 180 of the U.P. Tenancy Act, 1939, on December 2, 1948 took back possession of the land in dispute from the respondent Nos. 4 and 5 (respondents for short).
On the advent of the U.P. Zamindari Abolition and Land Reforms Act, 1950 ( '1950 Act ' for short) the respondents moved an application under section 232 of the 1950 Act to regain possession of the land on the ground that they hand acquired the status of adhivasis udder that Act.
The Assistant Collector dismissed the application.
The respondents appealed to the Additional Commissioner.
The appellants contended that since the village in which the land in dispute was situated was put into consolidation under the U.P. Consolidation of Holdings Act, 1953 ( '1953 Act ' for short), the Additional Commissioner had no jurisdiction to hear the appeal.
The appellants also submitted that a statement under section 8 and 8A of the 1953 Act was published in which they were shown as bhumidars of the land in question and the respondents had not objected to the entries.
The Additional Commissioner, by his order dated June 15, 1956, allowed the appeal.
Pursuant to that order the entries in the said statement were corrected and the respondents acquired possession of the land.
The Board of Revenue, before whom the Additional Commissioner 's order was challenged, held that the Additional Commissioner had no jurisdiction to hear the appeal on merits.
On September 11, 1958 the appellants moved an application under section 144 of the Code of Civil Procedure before the Sub Divisional officer praying for restitution of possession.
This application and the subsequent appeals were rejected by the authorities.
Dismissing a writ petition filed by the appellants the High Court held that the proceedings under section 144 of the Code of Civil Procedure could not succeed, but since the decision recorded by the authorities under the 1953 Act had become final, it was always open 288 to the petitioners to move the first appellate court to decide the appeal in terms of the decision of the consolidation authorities.
Thereupon, in August 1966, the appellants filed a suit under sections 209 and 229 (b) of the 1950 Act against the respondents for a decree for possession on the ground that they were bhumidhars of the land in question under the 1950 Act.
The Assistant Collector decreed the suit.
The Additional Commissioner allowed the appeal filed by the respondents.
The Board of Revenue dismissed the appellants ' second appeal.
The appellants filed a writ petition in the High Court.
A single Judge of the High Court dismissed the writ petition.
A Division Bench of the High Court dismissed the special appeal filed by the appellants.
Hence this appeal.
The respondents contended: (i) that the suit was barred by limitation and the appellants were not entitled to the benefit of section 14(1) of the ; and (ii) that the suit was barred by section 49 of the 1953 Act.
Dismissing the appeal, ^ HELD. 1.
The party seeking benefit of section 14 (1) of the must satisfy the three conditions laid down in the section, namely, (i) that the Party as the plaintiff was prosecuting another civil proceeding with due diligence (ii) that the former proceeding and the later proceeding relate to the same matter in issue; and (iii) that the former proceeding was being prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.[297G H] 2.
The expression 'other cause of a like nature ' will have to be read ejusdem generis with the expression 'defect of jurisdiction '.
So construed the expression other cause of a like nature must be so interpreted as to convey something analogous to the preceding words from defect of jurisdiction '.
The defect of jurisdiction goes to the root of the matter as the court is incompetent to entertain the proceeding.
The proceeding may as well fail for some other defect.
Not all such defects can be said to be analogous to defect of jurisdiction.
Therefore, the expression other cause of a like nature on which some light is shed by the Explanation (C) to section 14 which provides "misjoinder of parties or causes of action shall be deemed to be a cause of like nature with defect of jurisdiction", must take its colour and content from the just preceding expression, defect of jurisdiction '.
Prima facie it appears that there must be something taking to a preliminary objection which if it succeeds, the court would be incompetent to entertain the proceeding on merits.
Such defect could be said to be of the like nature ' as defect of jurisdiction.
Coversely if the party seeking benefit of the provision of section 14 failed to get the relief in earlier proceeding not with regard to anything connected with the jurisdiction of the court or some other defect of a like nature, it would not be entitled to the benefit of s 14.
[300C G] India Electric Works Ltd. vs James Mantosh & Anr., ; , referred to.
In a proceeding under section 144 of the Code of Civil Procedure, the party applying for restitution has to satisfy the court of first instance that a decree under which it was made to part with the property is varied or reversed or modified in appeal or revision or other proceeding or is set aside or modified in any suit instituted for the purpose and therefore, restitution 289 must be ordered.
In such a proceeding, the party seeking restitution is not required to satisfy the court about its title or right to the property save and except showing its deprivation under a decree and the reversal or variation of the decree.
[298C D; E] 4.
In the instant case, the High Court rightly declined to grant benefit of the provision of sec 14 of the to the appellants because the second and third condition laid down in section 14 (1) were not satisfied.
It may be assumed that the earlier proceeding under section 144 of Civil Procedure Code was a civil proceeding for the purpose of section 14 (1) and that the appellants were prosecuting the same with due diligence.
But it is difficult to accept that the subsequent proceeding relates to same matter in issue as was involved in the earlier proceeding.
The appellants merely claimed in their application under section 144 that in view of the reversal of the order by the Board of Revenue the respondents are not entitled to retain possession and that restitution should be evicted because the appellants lost possession under the order of the Additional Commissioner which was reversed by the Board of Revenue.
The cause of action was the reversal of the order of the Additional Commissioner.
When they failed to obtain restitution, the appellants filed a substantive suit under sections 209 and 229 (b) of the 1950 Act.
It was a suit on title as bhumidars for possession against respondents alleging unauthorised retention of possession.
It had nothing to do with the order of the Additional Commissioner.
Moreover, the appellants failed in the earlier proceeding not on the ground that the authority had no jurisdiction to entertain the application nor on the ground that there was any other defect of a like nature, but on merits inasmuch as the authorities and the High Court held that in view of the decision of the authorities under 1953 Act, the appellants are not entitled to restitution.
[301B; 299A; 298G H; 299A] 5.
Once an allotment under section 49 of the U.P. Consolidation of Holdings Act, 1953 became final, a suit would not lie before a civil or revenue court with respect to rights in lands or with respect to any other matter for which a proceeding could or ought to have been taken under that Act.
[301G] 6.
In the instant case, once the village was denotified, as found by the authorities and the High Court the allotment made under the 1953 ACI became final and it could not be questioned in a suit before civil or revenue Court in view of the bar enacted in section 49.
[302A B] 7.
The appellants ' submission that after reversal of the Additional Commissioner 's order dated June 15, 1956 the respondents had neither a legal nor equatable right to be in possession, has no force.
Assuming that the appellants had acquired the status of bhumidars the same was subject to the provision contained in section 20 (b) read with Explanation I of the U.P. Zamindari Abolition and Land Reforms Act, 1950 according to which, as correctly found by single Judge of the High Court, the respondents would become adhivasis of the land.
Such adhivasis if they had lost possession were entitled to regain the same by making an appropriate application under section 232 of that Act.
The respondents did move such an application which ultimately was accepted by the Additional Commissioner.
Therefore, primarily, legally and additionally in equity, respondents have an iron clad case to be in possession against appellants.
[294H; 296D G] 290


judgement:
ivil Appeal Nos.
1201 03 Of 1972 From the Judgment and Order dt.
30.4.1971 of the High Court of Delhi in Civil Writ No. 12)7/67, 455/68 & 16/70.
WITH Special Leave Petitions (Civil) NOS.
2820 23 of 1977.
From the Judgment and order dt. 18.1.1977 of the High Court of Delhi in Letters Patent Appeals Nos. 3 to 6 of 1977.
Anil Devan, A.N. Haksar and D.N. Misra for the Appellant in C.A. Nos. 1201 03172.
B.P. Maheshwari for the Petitioners in SLPs Nos.
2820 23 of 1977.
Abdul Khader, T.V.N. Chari and R.N. Poddar for tbe Respondents in C.A. Nos.
1201 03/72.
The Order of the Court was delivered by TULZAPURKAR, J. Two contentions under a Scheme called "Tax Credit Certificate (Excise Duty on Excess Clearance) Scheme, 577 1965" framed by the Central Government under section 280 ZD of the Income Tax Act, 1961, which were negatived by the High Court, have again been pressed by the appellant company before us in these appeals but after hearing counsel for the appellant company at some length and after going through the relevant provision of the said Scheme, relevant section of the Income Tax Act, 1961 and section 80 of the Finance Act 1965 we are satisfied that the High Court was right in the view which it took on both the contentions and the appeals deserve to be dismissed.
With a view to encourage investment in new equity shares and to stimulate industrial output the Government of India introduced certain special provisions in Chapter XXII B of the Income Tax Act, 1961 for the grant of tax credit certificate and section 230ZD is one of such Provisions which provides for the grant of tax credit certificate by way of incentive for increased production of goods and the "Tax Credit Certificate (Excise Duty on Excess Clearance) Scheme 1965" was framed by the Central Government under this section and it was made applicable to the cement industry in 1965.
Under the Scheme the amount of tax credit to which a manufacturer of cement is entitled is calculated at a rate not exceeding 25% of the amount of the duty of excise payable by him on the quantity of excess production during the financial year as compared to the production in the base year and the financial year 1964 65 is defined as the base year in relation to an existing undertaking.
For the year 1 965 66 being the concerned year in the instant case the excise duty for cement levied under the (for short the Excise Act) was Rs. 23.60 per ton but under section 80 of the Finance Act 1965 a special duty of excise equal to 25% of the total amount of excise chargeable under the Excise Act on various articles including cement was levied.
On the excess clearance of cement made during the concerned year over and above the quantity cleared in the base year the appellant Company applied for the grant of tax credit certificate to the concerned authority under the Scheme for an amount calculated at the rate of 25, ' of the entire amount of duty of excise paid by it, that is to say, 25% of the basic excise duty levied under the Excise Act at Rs. 23.60 per ton plus the amount of special excise duty paid by it under section 80 of the Finance Act.
The concerned authority granted tax credit certificate only in respect of the Central Excise Duty levied under the Excise Act, taking the view that the appellant was not entitled to have any tax credit in respect of any other excise duty levied under a different enactment, namely, section 80 of the 578 Finance Act.
The appellant challenged before the High Court the aforesaid view of the authorities but the High Court negatived the challenge principally on the ground that tax credit would not be available to the appellant company in respect of the special excise duty levied under section 80 of the Finance Act having regard to the special meaning assigned to the expression 'duty of excise ' by clause (b) of sub s(6) of section 280ZD.
It is clear that under section 280ZD (1) a manufacturer of the concerned goods is entitled to be granted a tax credit certificate for an amount calculated at the rate not exceeding 25% of "the amount of duty of excise payable by him" on that quantum of the goods cleared by him during the relevant financial year which exceeds the quantum of goods cleared by him during the base year and clause (b) of sub section
(6) of section 280ZD defines the expression 'duty of excise ' for the purpose of the aforesaid provision in a special manner and clause (b) says 'duty of excise ' means the duty of excise leviable under the Central excises and Salt Act, 1944".
Obviously the special excise duty which was levied under section 80 of the Finance Act 1965 can not be regarded as having been levied under the Excise Act.
Counsel for the appellant company, however, urged before us that having regard to the provisions of sub clause (3) and (4) of section 80 of the Finance Act the special excise duty leviable thereunder should be regarded as duty of excise leviable under the Excise Act.
lt is not possible to accept this contention.
It is true that the expression 'leviable ' is an expression of wide import and includes stages of qualification and recovery of the duty but in the context in which that expression has been used in clause (b) of sub section
(6) of section 280 ZD it is clear that it has been used in the sense of chargeability of the duty.
In other words the duty of excise in respect whereof tax credit is available would be in respect of such duty of excise as chargeable under the Excise Act and clearly the special excise duty in respect whereof additional tax credit is sought by the appellant company is not chargeable under the Excise Act but chargeable under the Finance Act.
Sub clauses (3) & (4) of section 80 of the Finance Act on which reliance has been placed by counsel for the appellant company in terms refer to the procedural aspect such as the qualification and collection of duty and simply because the qualification and collection of the special duty under the Finance Act is to be done in accordance with the provisions of the Excise Act such duty does not become leviable, that is to say, chargeable under the Excise Act.
It is, 579 therefore, not possible to accept the contention of the counsel that such special duty of excise leviable under the Finance Act should also be included or taken into account for the propose of granting tax credit certificate under the Scheme read with section 280ZD of the Income Tax Act 1961.
Reference was made by counsel for the appellant to a decision of the Madras High Court in Seshasayee Paper & Boards Ltd. vs Deputy Director of Inspection Customs and Central Excise, New Delhi and Anr.(l) where the view taken by that Court seems to support his contention but having regard to the special definition of the expression 'duty of excise ' given in section 280ZD (6) (b) and the construction which we have put on the word 'leviable, we do not approve the decision of the Madras High Court.
The other contention urged by counsel for the appellant relates to the question of limitation but on this aspect the admitted facts are that the first application for tax credit certificate was made by the appellant on June 24, 1966 and the same had been disposed of in December 1966.
Thereafter a supplementary application was made on August 26, 1967 which was obviously barred by limitation as per para 5.2 of the Scheme.
Further, even the power to condone delay conferred on the Central Authority under para 5.3 would not cover the appellant 's case for under that provision a delay for a period not exceeding 60 days could alone be condoned.
Counsel, however, urged that the delay in filing the supplementary application ought to have been condoned having regard to the trade notice that had been issued on June 29, 1967 inasmuch as the supplementary application could be said to have been made because of the clarification issued under that trade notice.
It is, however, clear that by the trade notice no amendment was effected but merely a clarification of the existing position in law was given and, therefore, the trade notice could not furnish starting point of limitation for the supplementary application.
In our view both the contentions were rightly rejected by the High Court and the appeals are dismissed but without cost.
In view of what is stated above the special leave petitions are also dismissed.
N.V.K. Appeals & Petitions dismissed.

summary/full:
The Tax Credit Certificate (Excise Duty on Excess Clearance) Scheme 1965 was framed by the Central Government under section 280ZD of the Income Tax Act 1961.
It was made applicable to the Cement Industry in 1985.
For the year 1965 66, the excise duty for Cement levied under the Central Excise and Salt Act 1944 was Rs. 23.60 per ton, but under section 80 of the Finance Act 1965 a special duty of excise equal to 25% of the total amount of excise chargeable under the Excise Act on various articles including cement was levied.
The appellant company on the excess Clearance of cement made during the concerned year 1965 66 over and above the quantity cleared in the base year (financial year 1964 65) applied for the grant of tax credit certificate to the concerned authority.
The authority however, granted tho, Tax Credit Certificate only in respect of the Central Excise Duty levied under the Excise Act, taking the view that the appellant was not entitled to have any tax credit in respect of any other excise duty levied under a different enactment, namely, section 80 of the Finance Act.
576 The appellant company challenged in the High Court.
.Theafore said view, but it was rejected on the ground that tax credit would not be available to The appellant company in respect of the, special excise duty levied under s.80 of the linance Act, 1965 having regard to the special meaning assigned to the expression 'duty of excise ' by clause (b) of sub section (6) of section 280ZD Dismissing the appeals and Special leave Petitions to this Court.
^ HELD: 1.
Under section 280ZD (I) a manufacturer of the concerned goods is entitled to be granted a tax credit certificate for an amount calculated at the rate not exceeding 25% of "the amount of duty of excise payable by him" on that quantum of the goods cleared by him during the relevant financial year which exceeds the quantum of goods cleared by him during the base year and clause (b) of sub sect on (6) of section 280ZD defines the expression 'duty of excise ' for the purpose in a special manner, as "the duty of excise leviable under the Central Excise and Salt Act ]944".
[578C E] 2.
Sub clause (3) & (4) of section 80 of the Finance Act, 1965 refer to the procedural aspect such as the quantification and collection of duty.
Simply because the quantification and collection of special duty under the Finance Act is to be done in the manner indicatcd under the Excise Act, such duty does not become leviable that is chargeable under the Excise Act.
[578G H] Seshasayee Paper & Boards Ltd. vs Deputy Director of Inspection, Customs and Central Excise New Delhi.
and Anr,. , over ruled.