Madras High Court
M.Salman Farook vs The Hon'Ble District Judge on 22 February, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.02.2012 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P. No.18645 of 2011 and M.P.No.1 of 2011 M.Salman Farook .. Petitioner. Vs. 1. The Hon'ble District Judge Nagapattinam Nagapattinam District 2. The President Nagapattinam Bar Association District Court Campus Nagapattinam-611 001 .. Respondents. Writ petition is filed under Article 226 of Constitution of India for issuance of a writ of certiorarified mandamus to call for the records pertaining to the order dated 05.10.2010 passed by the 1st respondent against the petitioner and quash the same and consequently direct the 1st respondent to register the petitioner as clerk to on Mr.P.S.Muthukumararaja by considering his letter dated 14.09.2010. For Petitioner : Mr.R.Marudhachalamurthy For R1 : Mr.P.Karthikeyan, G.A., For R2 : Mr.C.Rajakumar O R D E R
Petitioner has approached this court with a prayer for issuance of writ in the nature of certiorari, to quash the order passed by the learned District Judge, Nagapattinam, declaring the petitioner as tout, and further refused to register him as clerk.
2. Petitioner was working a clerk to Thiru R.Jayaraman. On his death registration of petitioner as clerk came to an end, resultantly he moved an application for being registered as clerk with another advocate.
3. The Bar Association of Nagapattinam, passed a unanimous resolution for declaring the petitioner to be a tout, on the ground that the petitioner is practising toutism and was in habit of making false complaints against advocates.
4. Learned District Judge took up both the applications together. The reading of the order shows that in view of the pleadings of the parties, learned District Judge did not think it appropriate to give oral hearing, as it was noticed that documents placed on record by the respective parties were sufficient to arrive at a appropriate decision.
5. However, an opportunity was given to the Bar Association as well as to the petitioner to file the pleadings and necessary documents in support of their respective claims. One of the allegations against petitioner was that the petitioner was convicted for offence under Sections 294(b), 354 and 506 IPC.
6. The learned counsel for the petitioner contends that the petitioner was acquitted by the Appellate court. This fact may not be relevant, as the learned District Judge categorically held in the impugned order itself, that conviction of petitioner was not of any relevance, as the question to be determined was whether the petitioner was to be declared tout or not.
7. Learned District Judge, thereafter took into consideration the documents placed on record, specially the admission of the petitioner in reply Ex.C.4, admitting that he was soliciting clients. The finding has been recorded that the petitioner is a tout.
8. In view of the declaration of the petitioner being a tout, his application for registration as clerk was declined.
9. Learned counsel for the petitioner challenges the impugned order on the ground that the order of Hon'ble District Judge cannot be sustained, as admittedly no personal hearing was given to the petitioner as recorded in the order itself.
10. Learned counsel for the petitioner refers to Section 36 of the Legal Practitioners Act, to contend that proviso to Section 36, itself shows that no person can be declared as tout, unless he is given opportunity to show cause against such inclusion. Reference was also made to explanation to Section 2A, where the competent authority empowered to frame and publish a list of touts is authorized to send it to the Courts subordinate, to such authority, with an order to hold enquiry qua such person. The said authority, before including him in the list of touts, maintained by it, is required to give personal hearing.
11. On consideration, I find no force in this contention. Explanation to 2 provides for opportunity to show cause against inclusion of the name. The impugned order shows that show cause notice was issued to the petitioner and opportunity was also given to file the defense, it was keeping in view the well established law that admitted facts are not required to be proved, that learned District Judge proceeded to decide the case on basis of pleadings and documents, which were admitted by both the parties. It cannot be said, that there was any violation of Statute in passing of the impugned order.
12. It is only if the list is sent to its subordinate Courts for including the name of petitioner in the list of touts, that the personal hearing will be required to be given by the said Court under explanation 2-A.
13. The impugned order does not suffer any error on this account also.
14. It was next contended by learned counsel for the petitioner that learned District Judge, has misread the admission made by the petitioner to record that there was admission of the petitioner regarding soliciting of clients.
15. It was also contention of the learned counsel for the petitioner that if opportunity had been given, he could explain the admission, made in defensen statement.
16. This contention again deserves to be noticed to be rejected. Once categorical admission is made that the petitioner was in practice of soliciting clients for the Advocates, no fault can be found with the order passed by the learned District Judge in declaring him as tout.
17. Learned counsel for the petitioner, further contends that the petitioner should have been given opportunity to prove malafide against second respondent. The second respondent is the President by designation and not in person, therefore, there is no ground to allege malafide against Office.
18. It is well settled that allegations of malafide cannot be looked into, unless the person against whom allegations are made, is party to the proceedings, except in case of legal malice.
19. Learned counsel for the petitioner thereafter referred to the definition of tout under the Act to contend that the material placed on record, on which reliance is placed to declare the petitioner as tout, cannot be sustained, as there was no allegation that the petitioner had solicited clients for consideration. This contention again cannot be accepted, as there cannot be direct evidence of monetary consideration, and only presumption can be drawn in view of proved facts.
20. The acts of the petitioner coupled with his admission, and the complaint of the Bar Association, leaves no manner of doubt that the petitioner indulged in soliciting clients for monetary consideration.
21. It was lastly contended by the learned counsel for the petitioner that learned District Judge, misread the pleadings and admission on record in coming to the conclusion that the petitioner was a tout. This contention again is without merit, as it is not for this Court in exercise of writ jurisdiction to reappraise the pleadings and documents placed in support of the pleadings to come to a different conclusion, once it is upheld that the conclusion arrived at by the learned District Judge was capable of being arrived at on appreciation of pleadings and documents on record.
22. The finding of the learned District Judge, therefore, cannot be said to be perverse or not capable of arriving at on the pleading and documents placed on record.
23. No merits. Dismissed.
24. No costs. Connected miscellaneous petition is closed.
ar To
1. The Hon'ble District Judge Nagapattinam Nagapattinam District
2. The President Nagapattinam Bar Association District Court Campus Nagapattinam 611 001