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Bar Council Decision res judicata on civil court

Comment  : The issue in this case was whether a cantankerous litigant having exhausted his remedies against an advocate in the Bar Council (State as well as National) Can sue the advocate for negligence in the Civil Court ? The Court held no – such proceeding would be barred by the principles of Res Judicata. 
 
Rajasthan High Court
Maghraj Calla vs Kajodi Mal on 25 May, 1993
Equivalent citations: AIR 1994 Raj 11
Author: R Balia
Bench: R Balia

ORDER

Rajesh Balia, J.

1. The revision raises an interesting issue. It arises in the following circumstances.

2. The respondent has filed a suit against the petitioner, then an advocate, for damages, on allegations that he was negligent in discharge of his duties qua the plaintiff as client; as, he failed to act with due diligence and promptitude, after brief for filing an appeal to the Rajasthan Civil Service Appellate Tribunal, Jaipur (hereinafter referred to as ‘the Tribunal’) was entrusted to him in respect of an order compulsorily retiring the plaintiff from the State services. According to the plaintiff, due to negligent conduct of the advocate-defendant, the appeal could not be filed in time, which was eventually dismissed as time-barred by the Tribunal and, later on, a petition under Article 226 of the Constitution of India challenging the order of the Tribunal was also dismissed by this Court on 20th October, 1980. It may also be noticed here that, in the first instance, in the appeal filed by the plaintiff before the Tribunal through the defendant-advocate, an application supported by an affidavit of plaintiff, under Section5 of the Limitation Act, for condoning delay in filing the appeal was moved, in which it was alleged that the plaintiff was under a bona fide impression that appeal did not lay to the Tribunal because of the controversy relating to jurisdiction of the Tribunal to entertain appeals against orders of compulsory retirement. However, later on, the present plaintiff engaged another counsel and filed another affidavit, taking the plea that because of the negligent conduct of the counsel on the very same grounds, which are now subject matter of the suit, the plaintiff was precluded from filing appeal in time and, therefore, he had sufficient cause for not filing appeal within time and for condonation of delay. This plea did not find favour with the Tribunal, which recorded its finding in the following manner:

“….. We do not agree with him that it is a mistake or misconduct of the counsel in delaying the presentation of the appeal…..”

3. The Tribunal further went on to hold that the appellant himself was negligent and did not care to see that the appeal is filed in time.

4. In the writ petition, the High Court while dismissing the plaintiff-petitioner’s petition, observed that if the petitioner feels aggrieved with the conduct of his counsel, he may seek his remedy elsewhere. Perhaps moved by the aforesaid observation, of this Court, in its order dated 20-10-1980, the plaintiff lodged a complaint dated 12-6-1981 against the respondent before the Bar Council of Rajasthan, for taking appropriate action against the respondent. On the same allegations, he also filed the present suit for damages, alleged to have been caused to the plaintiff as a result of negligence of the defendant-advocate in discharge of his professional duties towards the plaintiff-client. The suit was filed on 8-7-1981. The allegations of negligence amounting to misconduct attributed to defendant in the suit, complaint to State Bar Council and the Tribunal, are all the very same.

5. During the pendency of the suit, the Bar Council of Rajasthan refused to make reference to the Disciplinary Committee for holding inquiry into the alleged misconduct of the defendant, after calling for the explanation from the advocate. A detailed reasoned order was passed on 18-7-1982. It held as under:

“….. It cannot be said that the appeal was filed time barred due to the inaction of the opposite party …..

In these circumstances, it cannot be said that there was any negligence act on the party of the opposite party …..”

Against the aforesaid order, the plaintiff had filed a revision before the Bar Council of India. The Bar Council of India also opined that the application for condonation of delay was rejected mainly due to conduct of the complainant and concluded that the State Tribunal has dismissed the complaint after taking into consideration entire material, which does not call for interference. It held as under:

“….. It cannot be said that the advocate-respondent was in any way responsible, but in fact the complainant should thank himself for engaging another lawyer and giving contradictory affidavits before the Tribunal. The State Tribunal has dismissed the complaint after taking into consideration the entire material and we do not find any illegality or impropriety in the order of the State Council…..”

On this conclusion, the revision was dismissed on 21st January, 1984.

6. Thereafter, the defendant moved an application for amendment of written statement to raise the plea that decision under Section 35 of the Advocates Act, in which the negligence of the defendant was the question, substantially and directly in issue between the parties who are also parties to the present suit; in which also the same negligence is substantially and directly in issue. Hence, decision in proceedings under Section 35 of the Advocates Act, will operate as res judicata, and, the civil court will have no jurisdiction to try that issue again in the present suit. The amendment was allowed and after the amended written statement was filed, the plaintiff filed rejoinder to the new plea taken by the defendant. The plaintiff alleged that the State Bar Council has passed the order on the complaint of the plaintiff, without affording him an opportunity of hearing and the order was obtained as a result of influence of the defendant, who was then Member of the State Bar Council. He further pleaded that aggrieved with the order, he had filed revision before the Bar Council of India, but because of lack of resources, he could not prosecute the same properly before the Bar Council of India and, therefore, the decision went against him. He also raised the plea that the Bar Council does not exercise jurisdiction which could be held binding on the jurisdiction of the civil court and, therefore, the principle of res judicata cannot be invoked in the present case. On the basis of amended pleadings, additional issue No. 11 was framed, as follows:

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7. The said issue was decided as preliminary issue, by the impugned order in favour of the plaintiff on 31-10-1991. The trial court held that the Advocates Act does not provide anywhere that the Bar Council or the Disciplinary Committee will be considered as civil court for the purposes of Section 11, C.P.C. and, therefore, the decision of the Disciplinary Committee or the Bar Council does not come within the purview of Section 11, C.P.C. for raising plea of res judicata. The trial court even refused to accept the Disciplinary Committee of the Bar Council as a ‘tribunal’. It also came to the conclusion that the decision by the Bar Council signed by the Chairman of the Council, is not a final decision on merits, and the same was not passed after giving an opportunity to the plaintiff. It was an order by which the Chairman did not deem it fit to refer the case to the Disciplinary Committee and, therefore, it cannot be said that the Disciplinary Committee has decided the complaint of the plaintiff on merits. On these findings, it held that Section 11, C.P.C. cannot be invoked in the present case, so as to raise bar of res judicata for entertaining an inquiry into the alleged misconduct of the defendant. Hence, this revision.

8. Heard learned counsel for the parties and perused the record, the complaint filed by the plaintiff before the State Bar Council, the explanation submitted by the Advocate, the order of the State Bar Council and the order of the Bar Council of India on revision; are on record, about the correctness of which there is no dispute. The earlier decision of the Rajasthan Service Appellate Tribunal and of the Rajasthan High Court, referred to above, are also on record.

9. The vexed question that calls for consideration is — whether the plaintiff having failed in his attempt to establish defendant’s negligence in discharge of his professional duty to him, firstly before the Service Tribunal to get benefit of condonation of delay on the ground that he be not penalised for lawyer’s negligence; then his complaint on the same allegations before the State Bar Council, for taking action against the defendant by punishing him for his negligent conduct qua him in discharge of professional duty, was rejected at threshold by a reasoned order recording the findings mentioned above; is entitled to have one more go to put the issue of defendant’s negligence qua him on the very same facts on trial to secure damages in the present civil suit?

10. It is contended by the learned counsel for the petitioner that Section 11 of Code of Civil Procedure is not exhaustive on the applicability of doctrine of res judicata. The trial of issue quoted above, is based on general principles of res judicata. He contends that whether entertain or not to entertain a complaint against an advocate, is within the exclusive jurisdiction of the State Bar Council or the Bar Council of India, as the case may be; and, if while exercising such exclusive jurisdiction, the State Bar Council negatives any question relating to alleged misconduct of an advocate on merit after taking into consideration material placed before it by both the parties, such determination must operate as bar to subsequent trial of same issue between the parties, on general principles of res judicata.

11. So far as the question whether Section 11, C.P.C. is in its terms exhaustive and is sole repository of the principle of application of res judicata, has its answer in negative, beyond the pale of doubt. The doctrine of res judicata or estoppel by record, is not a mere technical doctrine; but is a fundamental doctrine, of all courts, based on the twin principles — that there must be an end to litigation and, that man should not be vexed twice over for the same cause.

12. The general principle of res judicata is founded on maxims taken from Roman law. Res judicata, it is observed in Corpus Juris, Vol. 31, p. 743, is a rule of universal law, pervading every well regulated system of jurisprudence and is put upon two grounds, embodied in various maxims of common law; one, the public policy and necessity, which makes it in the interest of the State that there should be an end to litigation — interest republicae ut sit finis litium; the other — the hardship on the individual that he should be vexed twice for the same cause — nemo debet bix vexari pro eaden cause.

13. The leading exposition of doctrine of res judicata in modern times, is to be found in the words of Sir William de Grey, in Duchess of Kingstone case (Smith’s Leading cases (13th Edn.) p. 644) :

“From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow us generally true; first that judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, direction in question in another court; secondly, that the judgment of a court of exclusive jurisdiction, directly on the point, is, in the like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose.”

14. Halsbury’s Laws of England described the doctrine as — “it is a fundamental doctrine of all courts that there must be an end to litigation …..

The doctrine applies equally in all courts and it is immaterial in what court the former proceedings was taken, provided only that it was a court of competent jurisdiction, or what from the proceeding took, provided it was really for the same cause.” (See 3rd Ed., Vol. 115, paras 185 and 187).

15. Sir Barncs Peacock, in Ram Kirpal Shukul v. Mt. Rup Kumari (1884) ILR 6 All 269 (PC), while referring to Section 13 of the old Civil Procedure Code, of 1877, now replaced by Section 11 of the Code of Civil Procedure, spoke:

“The binding force of such a judgment in such a case as the present depends not upon Section 13, Act X of 1877 but upon general principles of law. If it were not binding there would be no end to litigation.”

16. Since then, the principle is firmly established in India. In G. H. Hook v. Administrator General of Bengal, AIR 1921 PC 11, while examining the order of the Court of Appeals, which confined the applicability of doctrine of res judicata to Section 11 of the Civil Procedure Code, Privy Council observed as under:

“….. The Court of Appeal, however, took a different view, and regarding the question as still open decided it against the appellant, but the error in their judgment is due to the fact that they regarded the question as completely governed by Section 11 of the Code of Civil Procedure. That section prevents the retrial of issues that have been directly and substantially in issue in a former suit between the same parties, and this question obviously arises in the same and not in a former suit, but it does not appear that the learned Judge’s attention was called to the decision of this Board in Ram Kirpal Shukul v. Mt. Rup Kumari, (1884) ILR 6 All 269, which clearly shows that the plea of ‘res judicata’ still remains apart from the limited provisions of the Code, and it is that plea which the respondents have to meet in the present case…..”

17. Their Lordships of Supreme Court in Daryao v. State of U.P., AIR 1961 SC 1457, exhaustively dealt with the question of the applicability of general principle of res judicata, to the binding character of judgments pronounced by courts and Tribunals of competent jurisdiction, approving the principle as enunciated in Corpus Juris. Halsbury’s Law of England and in Duchess of Kingstone’s case (supra), observed as under (at pp. 1461-62 of AIR):

“But, is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now the rule of res judicata as indicated in Section 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance, the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on consideration of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation …..”

18. The Supreme Court reiterated the principle in Lal Chand (dead) by LRs. v. Radha Kishan, AIR 1977 SC 789, by stating the law as under:

“….. Section 11, it is long since settled, is not exhaustive and the principle which motivates that section can be extended to cases which do not fall strictly within the letter of the law. The issues involved in the two proceedings are identical, those issues arises between the same parties and thirdly, the issue now sought to be raised was decided finally by a competent quasi tribunal…..”

19. From the aforesaid, it is clear that in order to raise the plea of res judicata, it is not necessary that the plea must fall directly within the four corners of Section 11, C.P.C. so long as it can be raised on the general principles of binding nature of final decision between the parties.

20. The another well settled facet of applicability of general principle of res; judicata, which is not restrictive in the scope I of its operation by the technical rules circumscribing the applicability of the provisions of Section 11, C.P.C., is that subject matter of grant of reliefs or the nature of proceedings, in two proceedings need not be same, that is to say, even if the subject matter and the relief sought are not the same, yet if there is a final decision on an issue, arising in the former proceedings, and the same issue arises in the subsequent proceedings, may be as an ancilliary of main relief, which was not the subject-matter of earlier proceedings; still, the findings on issue in the former proceeding will operate as res judicata, so far as the decision on that particular issue is concerned in the subsequent proceedings. The principle was succinctly expressed in Duchess of Kingstone case (supra). As is apparent from the passage quoted above, that judgment of a Court of exclusive jurisdiction, directly on the point, is in the like manner conclusive upon the same matter, between the same parties, coming incidentally in another court for a different purpose. The same view appears to be clear from Halsbury’s Law of England, as quoted above, wherein it was stated that the doctrine applies equally in all courts and it is immaterial in what court the former proceeding takes place, provided only that it was a court of competent jurisdiction, or what form the proceedings took; provided further that it was really for the same cause. The Statement of principle in Corpus Juris Secundum, Vol. 50 (Judgments), p. 603, is to be found in the following terms:

“The doctrine of estoppel byjudgment does not rest on any superior authority of the court rendering the judgment, and a judgment of one court is a bar to action between the same parties for the same cause in the same court or in another court, whether the later has concurrent or other jurisdiction (emphasis supplied)…….”

The above observations were quoted with approval by their Lordships of Supreme Court in Daryao’s case (AIR 1961 SC 1457) (supra), which is leading case on the subject. In Gulabchand v. State of Gujarat, AIR 1965 SC 1153, the Court opined (at p. 1167 of AIR):

“……….It is not necessary that the court deciding the matter formerly be competent to decide the subsequent suit or that the former proceedings and the subsequent suit have the ‘ same subject-matter. The nature of the former proceeding is immaterial.”

Their Lordships reiterated the view in Union of India v. Nanak Singh, AIR 1968 SC 1370.

In Gulam Abbas v. State of U.P., AIR 1981 SC 2198, their Lordships enunciated the principle as under (at p. 2213 of AIR):

“……..Technical aspects of Section 11 of C.P.C., as for instance, pecuniary or subject-wise competence of the earlier forum to adjudicate the subject-matter or grant reliefs sought in the subsequent litigation would be immaterial when the general doctrine of res judicata is to be invoked……….”

21. It is, thus, clear that the technical aspects of Section 11, C.P.C, as for instance, pecuniary or subject-wise competence of earlier forum to adjudicate the subject-matter or grant relief sought in the subsequent litigation, would be immaterial when the general doctrine of res judicata is to be invoked. Their Lordships further observed that this position has further been clear by inserting a new explanation (viii) to Section 11, C.P.C. in 1976; which gave efficacy to decisions as having the binding force, rendered by courts of exclusive though limited jurisdiction.

22. From the aforesaid, it is also clear that even the judgment or determination by a tribunal of limited but competent jurisdiction can act as a bar to raising of such issues covered by such judgments in a subsequent civil suit. What is essential for raising the plea of res judicata, on general principle, is that there must be a judicial determination of issue in controversy with a final decision thereon; in an earlier proceedings between the same parties. It is only such a decision pronounced by a court or tribunal, of competent jurisdiction, is binding between the parties, on the issues which directly and substantially in controversy before the court or the tribunal, of competent jurisdiction and is sought to be raised again in a subsequent proceedings.

23. The next question which arises for consideration — whether State Bar Council, exercising jurisdiction under Section 35 of the Advocates Act is a ‘tribunal’. If one examines closely the scheme of Chapter V of the Advocates Act, relating to the conduct of advocates, and the Bar Council of India Rules, 1976 is that regard; it becomes fairly discernible that the provisions of the Act make it clear that subject to right of appeal to the Supreme Court under Section 38, the inquiry into the charges of misconduct against an advoate is to be in the exclusive jurisdiction of the Bar Councils. The Misconduct alleged against advocate may be qua his duty to the court or duty to the client or duty to the opponent or duty to colleagues. It also envisages two stages in considering any complaint against, the concerned advocate and for that purpose, the Bar Council and its Disciplinary Committee form two distinct bodies, acting at different stages of the inquiry. No complaint can be made directly to the Disciplinary Committee, nor Discriplin-ary Committee can directly enter upon an inquiry into the alleged misconduct of an advocate. Any complaint against the conduct of an advocate has to be entertained first by State Bar Council for investigation, then it has to refer the case to its Disciplinary Committee, if on considering the allegations and material placed before it, it entertains reason to believe that advocate is guilty of alleged misconduct.

24. It is also clear that the disciplinary proceedings commence before the State Bar Council or the Bar Council of India, on a complaint or otherwise, made respectively to the State Bar Council or the Bar Council of India, the proceedings before the Disciplinary Committee is initiated by the Bar Council of the State and is not directly initiated by the filing of any complaint by any member of the public or otherwise. To entertain or not to entertain an application for further investigation is the exclusive jurisdiction of the Bar Council to whom the complaint is made. The above propositions are fairly well established from a catena of decisions from the Supreme Court.

25. In Adi Pherozshah Gandhi v. H.M. Seervai, Advocate General of Maharashtra, Bombay, AIR1971 SC 385, Hon’ble Hidayatullah, the Chief Justice of India opined as under (at p. 394 of AIR) :

“The disciplinary proceedings commence both before the State Bar Council and the Bar Council of India on a complaint or otherwise made respectively to the State Bar Council or the Bar Council of India. The Bar Councils in cither case refer them for disposal to their respective disciplinary committees……..”

26. In the same case, Justice Mitter, speaking for himself and for Justice Shelat, observed (at p. 398 of AIR):

“The above provisions of the Act make it clear that subject to a right of appeal to this Court under Section 38 the inquiry into charges of misconduct against an advocate is to be in the exclusive jurisdiction of the Bar Councils. Any complaint against the conduct of an advocate has to be preferred before a State Bar Council and when the council has reason to believe on the strength of such complaint that an advocate on its roll has been guilty of professional or other misconduct, it has to refer the case for disposal to its disciplinary committee. The Council can take such a step of its own motion. Section 35 shows that it is not obligatory on the State Bar Council to refer each and every complaiant to the disciplinary committee. It has to be satisfied that there is a prima facie case for investigation. It can throw out a complaint if the same appears to be frivolous. Sub-section (2) of Section 35 shows that it is not incumbent on the disciplinary committee of a State Bar Council to proceed further with the matter if it takes the view that the complaint is without substance………”

27. Again in Bar Council of Maharashtra v. M.V. Dabholkar, AIR 1975 SC 2092, the Apex Court observed as under (at p. 2097 of AIR) :

“…………….. The Bar Councils therefore entertain cases of misconduct against advocates. The Bar Councils are to safeguard the rights, privileges and interests of advocates. The Bar Council is a body corporate. The disciplinary committees are constituted by the Bar Council. The Bar Council is not the same body as its disciplinary committee………..The initiation of the proceeding before the disciplinary committee is by the Bar Council of a State. A most significant feature is that no litigant and no member of the public can straightway commence disciplinary proceedings against an advocate. It is the Bar Council of a State which initiates the disciplinary proceedings.”

28. It is further to be noticed that the Bar Council in entertaining an application and deciding whether to refer the case to the Discriplinary Committee or not does not act in its administrative capacity as a prosecutor.

29. In Adi Pherozshah’s case (AIR 1971 SC 385) (supra), the Apex Court observed, while examining the status of Advocate General appearing in a disciplinary proceedings as under:

“…………It is obvious that he is not a prosecutor on behalf of the Bar Council because if he was one, his presence would be more necessary at the stage at which the disciplinary committee considers in limine to decide whether the matter should be proceeded with at all…………”

30. The Court again observed in Dabholkar’s case (AIR 1975 SC 2092 at p. 2097) (supra):

“The Bar Council in placing a matter before the disciplinary committee does not act as prosecutor in a criminal case………”

31. From the above, it can fairly be concluded that on receipt of complaint, in the first place, the Bar Council of the State applies its mind to allegations in the complaint and material placed along with such complaint for arriving at a conclusion whether the facts disclosed establishes any misconduct on the part of advocate? Before arriving at such conclusion under Rule (2) of Chapter VII of the Bar Council of India Rules, the Bar Council may require the complainant to furnish better particulars in support of his complaint and also require the advocate against whom complaint is made to give his explanation. If such an explanation is received, it has also to be considered by it before arriving at its conclusion. Thus, even at the stage of consideration of complaint by the State Bar Council for the purpose of arriving at a conclusion whether a case of misconduct against the advocate is made out and reference be made to its disciplinary committee, the consideration of case of both the complainant as well as the accused-advocate is envisaged. The participation of both the complainant as well as accused-advocate at that stage is envisaged. The Bar Council is to arrive at its conclusion to refer or not to refer the case to the Disciplinary Committee only after due application of mind to the material before it, else reference will be incompetent and proceedings are amenable to certiorari. Reference in this connection may be made to Nandalal Khodidas Barot v. Bar Council of Gujarat, AIR 1981 SC 477. On such consideration, if the Bar Council comes to conclusion that no case of misconduct is made out, the complaint is rejected at threshold, like dismissal of a case in limine, and that is the end of matter. If, on the other hand, it comes to conclusion that, prima facie, a case of misconduct is made out, the complaint has to be referred to its Disciplinary Committee, for enquiring and giving decision thereon; and proceedings as far as before Bar Council is concerned are concluded, subject, of course, to any order that may be passed by the Bar Council of India under Section 48A of the Act, on a revision. The role of the Bar Council, which is held to be distinct authority than its Disciplinary Committee is not that of a prosecutor.

32. It can also be safely said that State Bar Council has the exclusive jurisdiction to deal with the complaint at threshold for the purposes of determining whether any case of misconduct against the accused-advocate is made out? If, the Bar Council finds in negative, the complaint is rejected; if on the other hand, it finds that it prima facie makes out a case against the advocate, it refers the case to its Disciplinary Committee for disposal.

33. The orders of the State Bar Council are revisable by the Bar Council of India under Section 48A of the Act.

34. On a reference being made, the Disciplinary Committee has to hold an enquiry in accordance with the procedure prescribed under the Rules in this regard. Both the complainant as well as the accused-advocate are to be given opportunity to lead evidence in suport of their respective cases and Disciplinary Committee has to decide on controversy after affording opportunity of hearing to both. The Disciplinary Committee is authorised to inflict punishment, on recording a finding of misconduct against the advocate, which vitally affects his right to practice.

35. The order of the Disciplinary Committee can be appealed against to Bar Council of India under Section 37. The decision of the Bar Council of India is further appealable to Supreme Court of India under Section

38. The proceedings are envisaged to be finally concluded by merger of decision of Disciplinary Committee in judgment of Supreme Court; if an aggrieved party decides to go in appeals.

36. The State Bar Council, the Disciplinary Committee of State Bar Council, the Bar Council of India and its Disciplinary Committee, are all required to adopt judicial approach in making their decisions under Section 35 or Section 36, as the case may be, of the Act.

37. In Province of Bombay v. Khushaldas S. Advani (since deceased) and after him his legal representatives (a) Govindram Khushaldas and (b) Ramchand Khushaldas, AIR 1950 SC 222, the Apex Court said:

“……….. when the law under which the authority is making a decision, itself requires a judicial approach, decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed.”

38. In this connection, the opinion of Slessar, L. J. in The King v. London County Council (1931) 2 KB 215; that — whenever anybody of person having legal authority to determine questions affecting rights of subjects and having duty to act judicially act in excess of their legal authority — a writ of certiorari may issue was approved.

39. Applying the aforesaid test, to the scheme of the Advocates Act, in deciding upon the complaint against an advocate, I am of the opinion, that the authorities under Section 35 or 36 of the Advocates Act, exercise their jurisdiction as quasi-judicial tribunals and their decisions are quasi-judicial decisions. The Bar Council has exclusive jurisdiction to entertain a complaint against the advocate and while deciding thereon, has competence to decide whether the advocate is responsible of omission or commission of alleged acts, constituting misconduct on the part of advocate. The matters concerning professional misconduct, which include negligence in discharge of duty qua client, being one pertaining to standards and ethics of profession, has been entrusted to Bar Council. It is for the Bar Council to consider whether the alleged acts of misconduct attributed to an advocate in a complaint on considering the material before it constitutes an imprudent act, an unwise act or a negligent act. It is the opinion of the Bar Council that must carry and be given due weight in this regard. The above principle also appears to be firmly established by decision of the Apex Court. In Re : An Advocate, AIR 1989 SC 245, the Court observed (at p. 254 of AIR):

“…………. It will be for the Bar Council of India to consider whether it would constitute an imprudent act, an unwise act, a negligent act and if so a culpable negligence, or whether it constituted a professional misconduct deserving severe punishment, even when it was not established or at least not established beyond reasonable doubt that the concerned Advocate was acting with any oblique or dishonest motive or with mala fides.,………”

40. In arriving at above conclusion, the Court reiterated the view expressed in Mohindroo’s case, AIR 1971 SC 107, wherein the Chief Justice Hidayatullah opined as under (at p. 116 of AIR) :

“…,……. this matter is one of the ethics of the profession which the law has entrusted to the Bar Council of India. It is their opinion of a case which must receive due weight.”

41. From the aforesaid, it is clear that decision of Bar Council of State or Bar Council of India, refusing to make reference to Disciplinary Committee on the ground that acts alleged against an advocate do not constitute an act of negligence is a very strong piece of evidence, almost clinching, to negative the allegations of a complainant in other proceedings.

42. It was next contended by learned counsel for the respondent that in order that a decision may be held to create a bar of res judicata in another proceedings, it is necessary that such decision must be between the parties in contest, and that in a disciplinary proceedings under Section 35, there is no party and, therefore, the decision of the disciplinary committee under Section 35 cannot constitute res judicata in the proceedings, even if the question — whether the facts alleged in the present case constitute negligence on the part of the advocate was directly and substantially in issue for determination before the Bar Council. He placed reliance on Dabholkar’s case (AIR 1975 SC 2092) (supra).

43. I have closely examined the contention and the decision relied on by learned counsel for the respondent, I am of the opinion that the argument is fallacious. The decision relied on by learned counsel for the respondent nowhere lays down that in a disciplinary proceedings, even a complainant and an advocate who has been accused of misconduct qua the complainant are not parties and, there is no lis between them. In order to appreciate the contention of learned counsel, it will be relevant to refer to the context in which the controversy arose in Dabholkar’s case (supra), and the question that their Lordships answered. The Court itself has referred in paras 20 and 21 of its judgment the background in which the controversy had arisen.

44. In Adi Pherozshah’s case (AIR 1971 SC 385) (supra), after the complaint against the advocate was dismissed, by the State Bar Council, the Advocate-General of Maharashtra filed appeal before the Bar Council of India. The Bar Council of India accepted the appeal filed by the Advocate-General and found the accused-advocate guilty of misconduct and awarded punishment to the advocate overruling the objection of the advocate that the Advocate-General had no locus standi to file an appeal. On appeal before the Supreme Court, the plea of the appellant-advocate was that Advocate General of Maharashtra was incompetent to file an appeal as he could not be considered to be a person aggrieved within the meaning of Sections 37 and 38 of the Act. The plea was accepted by a majority of 3 : 2. Thereafter, the Advocates Act was amended in 1974, by providing specific right of appeal to Advocate General of State under Section 37 and Attorney-General or Advocate General of State in Section 38 of the Act. However, the Bar Council was not conferred any such right of filing an appeal.

45. In Adi Pherozshah’s case (AIR 1971 SC 385) (supra), the majority view held that while the advocate against whom an order of punishment has been passed and the complainant whose complaint has been dismissed, are persons aggrieved; the Advocate-General though entitled to appear and be heard in the disciplinary proceedings in view of express provisions of the Act, he is not a party to the proceedings and further, that the Advocate General or the Attorney General or the Bar Council are not persons interested in the outcome of the proceedings and, therefore, not persons aggrieved. The minority view, while accepted the position that the Advocate-General, Attorney-General or the Bar Council are not parties to the litigation, but they have locus standi and their interest is based on professional code of conduct and for the purpose of upholding the purity of the Bar and preservation of the correct standards and norms in the profession.

46. In this connection, following passages from the majority view judgment as well as minority view judgment shall be relevant to be quoted : Justice Mitter, speaking for himself and Shelat, J., with whom the Chief Justice Hidayatullah concurred; spoke thus (AIR 1971 SC 385 at pp. 398-99):

“………… He is not a party to the proceedings but he has a right to appear and to make submissions both on questions of fact and question of law.

Section 37 does not in terms lay down who can prefer an appeal from the order of the disciplinary committee of the State Bar Council. There can be no doubt that the advocate against whom on order is made would be a person aggrieved. The State Bar Council cannot be such a person as the order is made by itself acting through its disciplinary committee. A member of the public may make a complaint to the State Bar Council against an advocate on the ground of loss or damage or any serious prejudice caused to him by the advocate, be it negligence or fraud e.g. collusion with the opponent or misappropriation of any moneys belonging to him and there does not seem to be any justifying cause for holding that he is not a person aggrieved by an order which dismisses his complaint.

………….. To place the Advocate-General in the category of “persons aggrieved” one must be able to say that the disciplinary committee committed an error which it was his duty to attempt to set right because of some function attributable to him as the Advocate-General or some obligation cast upon him by the Act or the general law of the land to safeguard and maintain standards of conduct of advocates laid down by the Bar Council of India.

………….. A person who is not a party to a litigation has no right to appeal merely because the judgment or order contains some adverse remarks against him………..”

47. After discussing the matter, their Lordships came to the conclusion:

“…………… Once he does the duty enjoined upon him by the statute of making such submissions as he thinks proper at the hearing his functions qua the inquiry came to the end. As a referee he has no further interest in the matter……”

“………….. The Advocate-General cannot prefer an appeal merely because the question is one of considerable importance to the public inasmuch as he is not a party to it and he has no locus standi to do so even in a case where the statute only gives him an opportunity of appearing at a hearing and making his submissions.

…………….. An Advocate-General in India is not the guardian angel of the Bar, nor is he the champion of public interest in any matter save as specified in a statute.”

48, Justice Vaidialingam and Justice Ray, differed on the question that the Advocate-General had no such interest. Justice Ray held as under (AIR 1971 SC 385 at p. 420) :

“…………… The Attorney General under Article 76 of the Constitution and the Advocate General under Article 165 of the Constitution have to discharge the functions conferred on them by or under the Constitution or an other law for the time being in force. The Advocates Act concerns the Advocate and it is in the fitness of things that the Attorney General and the Advocate General of a State are heard as persons representing the profession which assists the litigant public and the courts in the administration of justice. The Attorney General and the Advocates General of States are persons of high standing and with long experience in the profession and it is indisputable that they will ever adopt any partisan attitude in proceedings before the Disciplinary Committee. The Advocates Act gives special preeminence to the Attorney General and the Advocate General in disciplinary proceedings because it is not an attempt of the Disciplinary Committee to redress the grievance of an individual complainant but to find out whether there is any breach of professional standard and conduct. The high tradition, dignity and purity of the Bar is to be maintained. The Attorney General and the Advocate General are heard because they are heads of their respective Bar and the proceedings affect discipline and dignity of the Bar and touch the professional conduct of an Advocate.

They are not parties to a ‘lis’. They have no personal or pecuniary or proprietary interest in the matter. It is manifest that their locus standi and interest is based on professional code of conduct and for the purpose of upholding the purity of the Bar and preservation of correct standards and norms in the profession. The Attorney General and the Advocates General will uphold the professional discipline, dignity and decorum and that is why no order is made by the Disciplinary Committee without giving them an opportunity of being heard.”

49. Thus, while there was no difference of opinion that the accused-advocate and complainant come within the category of ‘persons aggrieved’; to maintain appeal against any order that may be passed affecting the advocate or the complainant, as the case may be, and there was also no difference of opinion that the Advocate General was not a ‘party’ to the proceedings — the difference of opinion rested on the question whether the Advocate-General or the Attorney-General could be said to be persons ‘interested’ in the litigation/proceedings, as persons entrusted to safe-guard the professional ethics, professional etiquette and professional morality for maintaining professional standards. This decision has been noted by later decision in Dabholkar’s case (AIR 1975 SC 2092) (supra). The decision lead to amendment in the Advocate Act and the Advocate General of the State and the Attorney General have been granted specific right to appeal under Section 37 and Section 38 respectively. This will be apparent from the following passage from the judgment given in Dabholkar’s case (AIR 1975 SC 2092 at p. 2096) :

In Adi Pherozshah Gandhi v. H.M. Seervi, Advocate-General of Maharashtra, Bombay reported in (1971) 1 SCR 863 : AIR 1971 SC 385 the question which fell for consideration was whether the appeal filed by the Advocate-General of Maharashtra before the Bar Council of India was competent. The majority view was that the Advocate-General of the State was not competent to file an appeal to the Bar Council of India. In the Maharashtra case (supra), the disciplinary committee of the State Bar Council was satisfied that there was no reason to hold Adi Pherozshah Gandhi guilty of professional misconduct or other misconduct. The Advocate-General of Maharashtra filed an appeal before the Bar Council of India. The appellant objected to the locus standi of Advocate-General before the Bar Council of India. The objection was overruled and the appeal filed by the Advocate-General was accepted by the disciplinary committee of the Bar Council of India. The disciplinary committee of the Bar Council of India held the advocate, Adi Pherozshah Gandhi guilty of misconduct and suspended him from practice for one year. The advocate preferred an appeal under Section 38 of the Act to this Court. In view of majority decision, the appeal filed by Adi Pherozshah Gandhi was accepted by this Court on the ground that the Advocate-General of Maharashtra was incompetent to file an appeal. It is in this background that amendments have been introduced into Sections 37 and 38 of the Act conferring right of appeal on the Advocate-General of State and the Attorney General of India under Sections 37 and 38 respectively.”

50. It is in the aforesaid background that when the Bar Council of Maharashtra considered the complaint received from High Court against the respondent before the Supreme Court, it referred the matter to its disciplinary committee. The Disciplinary Committee found the advocate guilty of misconduct alleged against him and suspended him for a period of 3 years. On appeal, the Bar Council set aside the order passed by the disciplinary committee. It may also be noticed here that the notices issued to the advocate that the proceedings are being started by the Bar Council of Maharashtra suo motu. Aggrieved with the order of the Bar Council of India in appeal, the Bar Council of Maharashtra preferred an appal before the Supreme Court and the question arose for consideration — whether the Bar Council of India is a person aggrieved so as to maintain appeal before the Supreme Court, since the name of Bar Council of India was not included giving it specific right of appeal under the amended provisions of the Act. The respondent relied on decision in Adi Pherozshah’s case (AIR 1971 SC 385) (supra), referred to above, in support of his plea that the Bar Council of Maharashtra has no locus standi to file an appeal. With the aforesaid controversy in the background, the question that came up for decision before their Lordships of Supreme Court was whether the Bar Council of State is a ‘person aggrieved’ to maintain an appeal against the decision of a disciplinary committee? So, the real question was, which their Lordships were considering — whether there is any litigation between the Bar Council of State and the Advocate, whether the Bar Council of State can be said to be a ‘party’ to litigation and, if the answer to two questions are in negative; — whether the Bar Council or the Advocate General or the Attorney General, can be said to be persons interested in the proceedings so as to be termed as ‘persons aggrieved’ within the meaning of Section 37 and Section 38 of the Act, entitling it to prefer an appeal against the order passed by the Disciplinary Committee or the Bar Council of India, as the ease may be.

51. In was in the context of position of the accused-advocate vis-a-vis the State Bar Council who has referred the matter to the Disciplinary Committee for inquiry and its decision; the Court opined that — there is no ‘lis’ in the proceedings before a disciplinary committee. They are not parties in the proceedings. The position of the Bar Council of State is not that of a complainant or prosecutor, yet it stated the position of the Bar Council, the Attorney General and the Advocate General, in the following terms –the Bar Council was not held to be party to litigation or that there is no litigation between the advocate and the Bar Council, for the reasons stated as under:

“……….. there is no party to the disciplinary proceedings. It is because the Bar Council, the Attorney-General, the Advocate-General, as the case may be, all act in protecting the interest of advocates, the interests of the public. In so acting there is no conflict between the advocate and any other person. The reason is that it is professional conduct, professional etiquette, professional ethics, professional morality, which are to be upheld transgression of which resuls in reprimanding the advocate or suspending him from practice or removing his name from the roll.”

52. From the above, it is apparent that because the Bar Council acts in dual capacity — on the one hand it acts in the interest of protecting the advocate — and — on the other hand, protecting the interest of public, in maintaining professional conduct, professional etiquette, professional ethics and professional morality; and, in so acting there is no conflict between the advocate and the Bar Council, which can give rise to a ‘lis’ between them and they become arrayed as ‘parties’ against each other. Obviously, this position does not state nor the court enunciated the same principle to be applicable to relationship of complainant and accused advocate-vis-a-vis each other in the disciplinary proceedings.

53. The undisputed principle that was enunciated in Adi Pherozshah’s case (AIR 1971 SC 385) (supra) drew a basic distinction between the advocate and the complainant being a party to the proceedings and the Bar Council of the State, the Advocate General or the Attorney General being not party to the proceedings, remain unaffected. The later decision of the Supreme Court unanimously opined that the Bar Council of State as a custodian of standards of professional conduct and etiquette and also custodian of advocate’s interest has necessary interest in the proceedings, notwithstanding that there is no litigation between it and the advocate and, held by a majority of 6 : 1, that it is not a party to the proceedings giving it necessary locus standi to maintain appeal. In my opinion, the decision cannot be read to lay down that even the advocate concerned and the complainant whose complaint is likely to be accepted or rejected are not held to be parties to a proceedings. In this connection, reference may be made to rules framed by the Bar Council of India for disciplinary proceedings in 1976, after the decision relied by the learned counsel for the respondent had been pronounced. Rule 5 refers to giving notice to parties; Rule 6 permits the parties to appear in person or through advocate; Rule 7 provides for proceeding ex parte if either the complainant or the respondent does not appear; Rule 8 provides for hearing of the Attorney General of the Solicitor General of India or the Advocate General of India, as the case may be and parties or the advocate, using the term ‘parties’ in contradiction to persons entitled to hearing under the Act specifically. The form prescribed of the notices also discloses that the complainant and the advocate against whom complaint has been made are to be arrayed as contesting parties.

Therefore, in my opinion as has been discussed above, the disciplinary proceedings commences before the State Bar, Council on a complaint made to it and in those proceedings which commences with receipt of complaint. as distinguished from suo motu action taken by the Bar Council; the complainant and the advocate against whom complaint is made are parties to the proceedings,

It may also be noticed that in a proceeding which commences on a complaint under Section 35 of the Act, the complainant is the person who has to prosecute his complaint as a party and lead evidence in support of it. His role and position is not of a complainant in a criminal proceedings wherein as soon as a complaint is lodged, it becomes duty of the Slate to investigate and prosecute the accused and the position of the complainant remains no more than of a person interested or a witness.

54. It was then argued that the State Bar Council had passed its order rejecting complaint of the plaintiff without hearing him and, therefore, an order passed without hearing, cannot operate as res judicata.

55. There cannot be dispute about the principle that unless the previous decision was given after hearing the parties, it cannot be considered a decision operating res judicata in subsequent proceedings. It cannot also be gainsaid that the question whether the earlier decision was passed after affording an opportunity of hearing or not is a question of fact.

56. In this connection, it may also be noticed that law is fairly well established that — where a decision of trial Court has merged into decision of the appellate Court, it is only the decision of the appellate Court that operate as res judicata and not that of the trial court and, the test which should be applied in examining the question whether in a given case, plea of res judicata can be upheld or nor, it is the judgment of the appellate court that would be relevant touchstone In this connection, reference may be made to S.P.A. Annamalay Chetty v. B.A. Thornhill, AIR 1931 PC 263, wherein their Lordships adverted to the effect of filing of an appeal on the question of res judicata, in the following terms:

“Where an appeal lies the finality of the decree on such appeal being taken is qualified by the appeal and the decree is not final in the sense that it will form res judicata as between the same parties and consequently where pending an appeal a suit is instituted on the same cause of action and between the same parties the proper course for the court of second action is to adjourn the action pending the decision of the appeal in the first action.”

57. In Nana Tukaram Jaikar v. Sonabai, AIR 1982 Bom 437, the High Court reiterated the same view.

58-59. In Bar Council of India, New Delhi v. Manikant Tewari, AIR 1983 All 357 a Division Bench of Allahabad High Court took the view on a question being raised that decision passed by the Bar Council of India was illegal and not binding in the subsequent proceedings, the Court on finding that appeal against the order of the Bar Council of India was dismissed in default by the Supreme Court, observed as under :

“………. After the dismissal of the appeal by the Supreme Court, the question that the decision of the Bar Council of India was illegal had lost all its efficacy.”

60. It was observed in Mosque known as Masjid Shahid Ganj v. Shiromani Gurdwara Prabandhak Committee, Amritsar, AIR 1938 Lahore 369, by a Full Bench of Lahore High Court, adverting to the question whether the suit was property tried or not in accordance with the procedure, where the order of the lower Court has been upheld by the court on appeal as under:

“……….. The fact remains that the decision of the Deputy Commissioner was upheld by the highest Court of appeal and this raises a presumption that the suit was properly tried according to the law and procedure then in force.”

61. Applying the aforesaid principles to the present case, it cannot be said that the decision of the Bar Council of India, if amounts to a decision by a competent tribunal in propertly instituted inquiry, will not be binding so as to operate as res judicata, on the ground, as contended by learned counsel for the respondent and held by the trial Court, that the order passed by the State Bar Council was without affording an opportunity of hearing to the plaintiff. In this connection, reference may be made to specific pleadings raised by the plaintiff in his rejoinder.

62. In the present case, while the plaintiff has averred the decision of the State Bar Council having been given without affording the opportunity of hearing, no such averment has been made about any such illegality having been attached to the decision of the Bar Council of India, passed in Revision. The order of the State Bar Council has merged in the order of the Bar Council of India, and it is the decision of the Bar Council of India which only can operate as res judicata, if it can so operate. About the decision of the Bar Council of India, the plaintiff has specifically pleaded as under:

^^———ijarq /kukHkko vkSj lk/kukHkko ds dkj.k oknh ogkij Hkh vius izdj.k dh iSjoh ugha dj ldk A—-

63. From the above, it is apparent that the allegation is not that the order was passed without affording an opportunity of hearing but the contention of learned counsel for the respondent is that he could not avail of the opportunity for the reasons of his own.

64. If a point has been decided against a party to the proceedings, due to his own failure of participating in the proceedings or to properly represent his case before the court or tribunal, it cannot be said to be a case decided without hearing the party. Since, in the present case, the existence of previous dispute before Bar Council and its decision thereon are admitted facts, and it is also admitted that decision of the State Bar Council has merged into the decision of the Bar Council of India, which, as discussed above, is the only decision relevant for the purposes of examining the plea of res judicata and, there is no plea by the plaintiff that the order was passed without affording an opportunity of hearing to him; the mere allegation that the State Bar Council has passed the order without affording an opportunity of hearing to the plaintiff would not take out the decision of the Bar Council of India from the purview of res judicata, as the dismissal of the revision would give rise to presumption that the decision by the court/tribunal-below was passed in accordance with the procedure applicable to such proceedings.

65. The next question that arises for consideration is — whether such a decision, which is rendered without holding an inquiry like a trial, by giving an opportunity of leading evidence to the parties can be held to be of such a nature, to create a bar of res judicata?

66. Learned counsel for the petitioner contends that decision by the State Bar Council, while referring the complaint for disposal to its disciplinary committee or to reject it at the threshold is like a hearing at the admission stage of an appeal — where, if the court finds that no prima facie case is made out, the appeal is rejected in limine even without issuing notice to other party and; if the court finds the case worth considering, the appeal is admitted. It was contended that an order passed in limine also amounts to a decision which will operate as res judicata. He also contended that in the matter of conduct of an advocate, and discharge of his duty qua his client, the opinion of the State Bar Council, which is the body entrusted for maintaining professional standard is of greatest weight and the case comes within the exclusive jurisdiction of the authorities under the Advocates Act. He places reliance on Daryao v. State of U. P., AIR 1961 SC 1457 and The Virudhunagar Steel Rolling Mills Ltd. v. The Government of Madras, AIR 1968 SC 1196.

67. The principle cannot be doubted that ‘lis’ disposed of on merits by a speaking order, even if passed in limine, amounts to a decision which can be opearting as res judicata in subsequent proceedings. In Daryao’s case, (AIR 1961 SC 1457) (supra), the Court observed as under (at p. 1466 of AIR:

“……If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar…….”

In The Virudhunagar Steel Rolling Mills’ case (AIR 1968 SC 1196) (supra), the Court observed as under (at p. 1198 of AIR):

“…..Even where notice might not have been issued by the High Court and the writ petition dismissed in limine, the question whether such dismissal would bar a petition under Article 32 would depend upon the nature of the order dismissing it in limine. This is perfectly clear from the later observations made at p. 592 in the same case. Where therefore a writ petition is dismissed without notice to the other side but the order of dismissal is a speaking order and the petition is disposed of on merits, that would still amount to res judicata and would bar a petition under Article 32. The petitioner’s only proper remedy in such a case would be to come in appeal from such a case would be to come in appeal from such a speaking order passed on the merits, even though the High Court may not have issued notice to the other side……”

Thus, even where notice might not have been issued to opposite party, still dismissal of a petition in limine may amount to create bar on subsequent trial on the same issue, on the principle of res judicata; provided the issue has been decided by a speaking order, on merits. The principle was again reiterated in the Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin Port Trust, AIR 1978 SC 1283.

67A. Thus, whether any order passed in limine operates as res judicata or not, would depend on the nature of the particular order passed. In this connection, it will have to be examined — whether the order finally determines the right of the party or finally determines the issue on merits, by a speaking order?

68. Therefore, it will have to be examined — in entertaining complaint and disposing it of, what is the determination that is made by the State Bar Council or the Bar Council of India, as the case may be. As I have noticed above, that under the scheme of Section 35 of the Act, the State Bar Council and the Disciplinary Committee are two distinct authorities and operate at two stages of the disciplinary proceedings.

69. The jurisdiction of the State Bar Council is up to the stage of deciding whether a full-fledged enquiry is to be carried into the complaint. If the State Bar Council has reasons to believe that advocate is guilty of misconduct alleged, it has to refer the same to its disciplinary committee. If, on the other hand, the Bar Council concludes that no case is made out against the advocate, it rejects the complaint and it becomes final and the proceeding come to an end under Section 35 of the Act.

70. It is clear from the discussion above, that the State Bar Council has exclusive jurisdiction to deal with the complaint at the j threshold for the purpose of determining whether any case of misconduct against the accused-advocate is made out. If the Bar Council finds in negative, the complaint is; rejected; if, on the other hand, it finds that a case against the advocate is made out in the complaint, the complaint is entertained and referred to its disciplinary committee for detailed investigation. The rejection of complaint at the threshold is like dismissal of complaint in limine, which, as discussed above, may or may not be after calling upon the advocate to furnish his explanation, and, the question–whether such a decision would operate as res judicata, in a subsequent proceedings will depend upon actual tenor of the order passed by the State Bar Council while rejecting the complaint in limine. It hardly needs to be emphasised that it is the conclusion contained, in the order that operates as res judicata and not inference that can be drawn from the order. If the order is not speaking order or it does not record any final conclusion on the merit of allegations in complaint, it cannot operate as res judicala. On the other hand, if a reasoned order recording finding on the merit of case is there, it will operate as res judicata in subsequent proceedings, between the same parties.

71. The contention was raised that ordinarily a decision in a criminal proceeding do not operate as res judicata in civil proceeding, and vice-versa. The proceedings under Section 35 of the Act being quasi-criminal in nature, a decision in those proceedings cannot operate as res judicata in another proceedings for claiming damages. There is no doubt, that looking to the gravity of consequences that may follow as a result of inflicting punishment on the advocate for the proved mis-conduct, the standard of proof required to bring home the allegations made against the advocate is much stricter in the proceedings under Section 35 then in ordinary civil proceedings and, the proceedings are characterised as quasi-criminal in character. The quasi-criminal character of the proceedings under Section 35 has succinctly been stated in Re : An Advocate, AIR 1989 SC 245, wherein their Lord-ships of Supreme Court held that the disciplinary proceedings under the Advocates Act are quasi-judicial in nature, as under:

(i) essentially the proceedings are quasi-criminal in character inasmuch as a Member of the profession can be visited with penal consequences which “affects his right to Practice the profession as also his honour; under Section 35(3)(d) of the Act, the name of the Advocate found guilty of professional or other misconduct can be removed from the State Roll of Advocates. This extreme penalty is equivalent of death penalty which is in vogue in criminal jurisprudence. The Advocate on whom the penalty of his name being removed from the roll of Advocates is imposed would be deprived of practising the profession of his choice would be robbed or his means of livelihood would be stripped of the name and honour earned by him in the past and is liable to become a social aparthied. A disciplinary proceeding by a statutory body of the Members of the profession which is statuorily empowered to impose a punishment including a punishment of such immense proportions is quasi-criminal in character

72. However, in my opinion, the principle that a decision in criminal proceedings does not operate as res judicata in civil proceedings, or Vice-versa; cannot be made, ipso facto, applicable to a decision under Section 35, because the nature of proceedings has been termed as “quasi-criminal”. The basic distinction between the criminal proceedings and the proceedings under Section 35 of the Act, which comes into existence as a result of complaint is to be borne in mind. The proceedings against an accused for committing a crime are conducted in the name of State, in exercise of its sovereign powers and that is in respect of breach of a public right and duties, which affect the whole community. In such proceedings, the complainant is never a party. He is never asked upon to prosecute and prove allegations levelled by him against the accused. Whereas, as I have noticed above, that in proceedings under Section 35, which comes into existence on a complaint made by an aggrieved person, the complaint becomes a party, he is to lead evidence and prove allegations made by him in his complaint and, to establish the charges levelled by him. In such cases also, to keep a decision obtained by a party against him as a participant in the proceedings, out of purview of the principle of res judicata will, in my opinion, be contrary to general principle of res judicata; in the application of which nature of two proceedings, the grant of relief in two proceedings is immaterial, as required under Section 11, C.P.C. This principle is well established, as discussed hereinabove.

73. If I now allude to the facts of the present case, in the light of principles discussed above, it is. to be observed that proceedings before the Bar Council of State commenced on a complaint lodged by the complainant-respondent under Section 35 of the Advocates Act. The cause of action for lodging the complaint before the Bar Council was the very same which is the cause of action for filing the present suit. The issue before the State Bar Council which was to decide at the threshold — whether to entertain or not to entertain a complaint as a quasi judicial tribunal was — whether the accused advocate is guilty of acting negligently qua the complainant on the basis of acts alleged in the complaint and material that has come before it. While the decision to entertain the complaint would have resulted in further proceedings before the Disciplinary committee; the decision on the aforesaid question in negative was final, so as to terminate the proceedings under Section 35, finally. The State Bar Council concluded against the complainant after calling for the explanation from the accused advocate as per the Rules and recorded a reasoned order that — it cannot be said that the appeal was filed time barred due to the inaction of the opposite party ………… In these circumstances, it cannot be said that there was any negligent act on the part of the opposite party ……… On Revision before the Bar Council of India, under Section 48A of the Act, the Bar Council of India affirmed the order of the State Bar Council, observing that it cannot be said that the advocate-respondent was in any way responsible, but in fact the complainant should thank himself for engaging another lawyer and giving contradictory affidvits before the Tribunal. The Council then held that — the State Tribunal has dismissed the complaint after taking into consideration the entire material and we do not find any illegalty or impropriety in the order of the State Council.

Before the State Bar Council as well as before the Bar Council of India, the present petitioner as well as the respondent, were also the parties.

74. Thus, in my opinion, the earlier decision under Section 35 of the Advocates Act, rendered Bar Council of India on revision filed by the present plaintiff, affirming the decision of State Bar Council, rejecting the complaint of the present plaintiff-respondent, by a speaking order on merits, on the issue which is also directly and substantially involved in the present suit, between the parties who were also the parties to earlier proceedings and, earlier decision being a decision by a competent quasi judicial tribunal vested with exclusive jurisdiction to entertain or not to entertain the complaint lodged by the complainant, in the light of its findings, fulfils all the criteria for the applicability general principle of res judicata, as discussed above and, therefore, such positive finding negating negligence on the part of advocate in those proceedings will operate as res judicata in the present suit, between the same parties.

75. As a result, the petition is allowed. The order under Revision, dated 31-10-1991, passed by the Addl. District Judge No. 3, Jodhpur; is set aside and findings on issue No. 11 recorded by the trial court is reversed, as aforesaid. The trial court will proceed further in accordance with law, in the light of findings recorded by this Court on issue No. 11.

However, it is made clear that my aforesaid conclusions are confined to decisions rendered by authorities under Section 35 of the Act, which has commenced on receipt of a complaint, and has no bearing on the cases where the Bar Council commences proceedings suo motu, or the complaintant after having lodged the complaint has withdrawn from prosecution. It is also made clear that while decision of the authorities under Section 35 or of the civil court on the question whether the particular acts alleged against the accused constitute negligence on the part of the advocate may be binding in subsequent proceedings before the forum trying such subsequent proceedings, it has no bearing and fetters in the exclusive jurisdiction of the tribunal to decide whether such negligent act further constitute a misconduct on the part of advocate for such negligence can further constitute an actionable act on the part of defendant, rendering him liable for damages, inasmuch as both these questions fall within the exclusive jurisdiction of the respective forums, the other forum having no competence to decide these issues and record their findings thereon.

There will be no order as to costs of this Revision.

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