Madras High Court
A.J.Moahmmed Iqbal vs Bar Council Of Tamil Nadu on 27 March, 2000
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 14.11.2014 & Delivered on : 17.11.2014
CORAM
THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN
Writ Petition No.29284 of 2014
A.J.Moahmmed Iqbal .. Petitioner
Vs.
1. Bar Council of Tamil Nadu
rep. by its Chairman
High Court Buildings, Chennai 600 104.
2. V.Raghavachari
3. V.Lakshmi Narayanan
4. The Tamil Nadu Wakf Board
rep. by its Chief Executive Officer
No.1, Jaffar Syrang Street
Vallal Seethakathi Nagar
Chennai 600 001. .. Respondents
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Petition under Article 226 of the Constitution of India praying for a writ of Mandamus directing the first respondent to dispose of the petition filed before them to initiate proceedings against the second and third respondents under Section 35 of the Advocates Act, till such time restrain the second and third respondents from appearing for the fourth respondent in CRP(PD) No.4097 of 2014.
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For Petitioner : Mr.A.Abdul Rahman
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O R D E R
The petitioner has come up with the above writ petition seeking the issue of a writ of Mandamus to direct the first respondent to consider his representation for initiating action against the respondents 2 and 3 under Section 35 of the Advocates Act, 1961 and also to prohibit the respondents 2 and 3 from appearing for the fourth respondent Wakf Board in a revision petition pending on the file of this Court.
2. Heard Mr.A.Abdul Rahman, learned counsel for the petitioner.
3. The grievance of the petitioner is that the respondents 2 and 3, who are Advocates practising in this Court, were his lawyers and that they have now started appearing for the Tamil Nadu Wakf Board, opposing the petitioner herein. Therefore, contending that the respondents 2 and 3 are guilty of professional misconduct, the petitioner sent a complaint to the Bar Council of Tamil Nadu and Puducherry. The complaint was allegedly given on 03.11.2014. Immediately within four days, the petitioner has come up with the above writ petition seeking a Mandamus to direct the Bar Council to look into his complaint and also to prevent the respondents 2 and 3 from appearing for the Wakf Board against the petitioner in a civil revision petition.
4. Before getting into details, it should be pointed out that the complaint to the Bar Council was made by the petitioner only on 03.11.2014. The writ petition has been filed on 07.11.2014 itself. Therefore, the petitioner appears to have acted in haste, in filing the above writ petition. It is needless to point out that a writ of Mandamus can be sought only when there is a failure on the part of a statutory authority to act in accordance with law. The failure to act cannot be presumed, when the complaint itself was given only a few days before the filing of the writ petition. Hence, even on this ground, the writ petition deserves to go.
5. However, I did not wish to to short circuit the whole thing, by dismissing the above writ petition merely on technicalities. Therefore, I heard Mr.Abdul Rahman, learned counsel for the petitioner in extenso.
6. According to the petitioner, his forefathers created a Wakf by name Jumma Pallivasal at Kallakurichi and that Muthavallis were appointed hereditarily. The petitioner claims that in the year 2000, he, along with others, made an application before the Wakf Board for appointing themselves as Hereditary Muthavallis. By an order dated 27.3.2000, the Wakf Board appointed the petitioner herein and five others as Joint Muthavallis and also declared them to be entitled to half share of the net income, derived from out of the properties of the Wakf.
7. It appears that one R.M.Siraj filed an application alleging serious irregularities against the petitioner and the other joint Muthavallis. Proceedings were initiated by the Wakf Board against the Muthavallis on the said complaint and the petitioner and his joint Muthavallis engaged the services of the respondents 2 and 3 to appear on their behalf before the Wakf Board.
8. It is the case of the writ petitioner that while appearing for him, the respondents 2 and 3 took a stand before the Wakf Board that the Wakf is a Wakf Alal Aulad and that the same was accepted by the Wakf Board and the petition filed by R.M.Siraj was dismissed by the Wakf Board by an order dated 07.12.2005. The said order of the Wakf Board was challenged before this Court in W.P.No.1609 of 2006 by R.M.Siraj. But, the said writ petition was dismissed by a learned Judge of this Court by an order dated 23.01.2006 on the ground that there was an alternative remedy of appeal available against the order of the Board.
9. According to the petitioner, the petitioner filed a writ petition in W.P.No.11596 of 2006 before this Court seeking police protection for the construction of a mosque. In that case also, the respondents 2 and 3 appeared for the petitioner.
10. But, on 23.7.2012, an order was passed by the Wakf Board, in exercise of the powers conferred by Section 25 of the Wakf Act, 1995, appointing an Executive Officer for the Wakf to look after the affairs of the Wakf for a period of one year and further directing the Managing as well as other Muthavallis to hand over charge. The said order of the Wakf Board was challenged by the petitioner as well as the joint Muthavallis in two writ petitions W.P.Nos.21929 and 22616 of 2012. In these two writ petitions, the petitioner was represented by an Advocate by name Mr.K.Moorthy. His Co-Muthavallis were represented by one Mr.M.Nazirudeen. It appears that by this time, the third respondent has become the Standing Counsel for the Tamil Nadu Wakf Board and hence, when W.P.Nos.21929 and 22616 of 2012 came up for orders as to admission, the third respondent took notice on behalf of the Wakf Board. By an order dated 21.8.2012, this Court, while directing the Wakf Board to file a counter within two weeks, directed that status quo as on that date shall be maintained. These two writ petitions are now pending on the file of this Court and an interim order directing maintenance of status quo as on 21.8.2012 is also in force.
11. However, the petitioner and his Co-Muthavallis filed a suit in O.S.No.301 of 2014 on the file of the Wakf Tribunal at Villupuram, seeking a declaration that they are the hereditary Haqthars and descendants and that they are entitled to be joint Muthavallis and also entitled to 50% of the income out of the Wakf properties and for a consequential decree of permanent injunction. Along with the suit, the writ petitioner and the co-plaintiffs appear to have filed an application for injunction in I.A.No.735 of 2014. The Wakf Tribunal granted an ad interim exparte order of injunction on 21-8-2014.
12. As against the interim order of injunction granted by the Wakf Tribunal, the Tamil Nadu Wakf Board filed a revision in CRP(PD).No.4097 of 2014 under Article 227 of the Constitution, through its Standing Counsel who is the 3rd respondent herein, alleging abuse of the process of law by the writ petitioner herein. In the said civil revision petition, this Court ordered notice.
13. Immediately upon receipt of the notice in the civil revision, the petitioner filed a memo on 30.10.2014 before this Court, seeking a direction from the learned Judge dealing with the civil revision petition, to adjudicate upon the competency of the respondents 2 and 3 to appear for the Tamil Nadu Wakf Board in the revision petition. No order has been passed on the said memo by the learned Judge.
14. Therefore, within three days of filing of the memo on 30.10.2014, the petitioner gave a complaint to the Bar Council against the respondents 2 and 3 on 03.11.2014 and within 4 days thereafter, came up with this writ petition on 07.11.2014.
15. According to the petitioner, the act of the respondents 2 and 3 in appearing for the Tamil Nadu Wakf Board against the writ petitioner, is a professional misconduct, as he had appeared for the writ petitioner in previous litigations arising out of the very same subject matter. Therefore, the petitioner claims that the Bar Council is obliged to take action.
16. I have carefully considered the submissions and I have also gone through the records relied upon by the petitioner. From the documents produced by the petitioner, it is seen that there had been several proceedings between the petitioner and the Wakf Board. In order to decide whether there was any conflict of interest, leading to a presumption of misconduct on the part of respondents 2 and 3, it is necessary to present in a tabular column, the list of proceedings in which the petitioner was pitted against the Tamil Nadu Wakf Board, the nature of the reliefs prayed in each one of them and the counsel who appeared for the parties in those cases. Hence, they are presented as follows:
Sl. No. Case No. Court Counsel who appeared for the petitioner Relief prayed 1 Special Resolution No.7 of 2000 Tamil Nadu Wakf Board Janab Faziudeen To appoint the petitioner and others as Joint Muthavallis 2 27.3.2000 Tamil Nadu Wakf Board Janab Faziudeen Petitioner and others appointed as Joint Muthavallis upon certain conditions 3 W.A.No.2059 of 2002 High Court S.Y.Masood Challenging the dismissal of a writ petition filed by one Ameer John and others in W.P.No.7313 of 2000, seeking to set aside the resolution of the Board appointing the petitioner and others as Joint Muthavallis 4 07.12.2005 Tamil Nadu Wakf Board V.Lakshmi Narayanan - third respondent in this writ petition Enquiry into the complaint made by one R.M.Siraj alleging mismanagement and misappropriation against the writ petitioner herein. By order dated 07.12.2005, the Wakf Board dismissed the complaint of R.M.Siraj, but decided to fix the tenure of Muthavalliship for three years from 07.12.2005, expiring on 06.12.2008 5 W.P.No.1609 of 2006 High Court V.Lakshmi Narayanan This writ petition was filed by R.M.Siraj against the Wakf Board resolution dated 07.12.2005 dismissing his complaint against the writ petitioner. This writ petition was dismissed on the ground of availability of an alternative remedy.6 W.P.No.11596 of 2006
High Court V.Lakshmi Narayanan - But he appeared actually for Jumma Pallivasal rep. by 5 Muthavallis, one of whom was the writ petitioner herein The prayer was for police protection to construct a mosque for the Wakf 7 01.6.2010 Tamil Nadu Wakf Board S.R.Sundar About the vacation of a shop in the property belonging to the Wakf 8 23.7.2012 Tamil Nadu Wakf Board S.R.Sundar Taking over direct management of the wakf and directing the writ petitioner and other Muthavallis to hand over charge 9 W.P.No.22616 of 2012 High Court K.Moorthy Challenging the order of the Wakf Board dated 23.7.2012 10 O.S.No.301 of 2014 Wakf Tribunal, Villupuram R.Venugopal, Advocate, Villupuram To declare the plaintiffs as hereditary Huqthars entitled to enjoy 50% of the income and for a permanent injunction restraining the Board from interfering with the plaintiffs functioning as Joint Muthavallis 11 CRP(PD) No.4097 of 2014 High Court A.Abdul Rahman Challenging the order of interim injunction granted by the Wakf Tribunal
17. It is seen from the above tabular column that the respondents 2 and 3, more particularly, the third respondent had appeared for the writ petition in one proceeding before the Tamil Nadu Wakf Board and in two proceedings before this High Court. The proceeding in which the third respondent appeared for the writ petitioner before the Tamil Nadu Wakf Board was initiated on a complaint filed by one Mr.R.M.Siraj alleging mismanagement and misappropriation. The third respondent had successfully defended the writ petitioner herein, against such allegations of misappropriation. The writ petitioner has no grievance about the quality of the professional services rendered by the third respondent, in the proceedings before the Tamil Nadu Wakf Board which culminated in an order dated 07.12.2005 dismissing the complaint of mismanagement and misappropriation filed by R.M.Siraj.
18. The second proceeding in which the third respondent appeared for the petitioner herein, was the writ petition W.P.No.1609 of 2006. This writ petition was filed by R.M.Siraj challenging the order of the Wakf Board dated 07.12.2005 rejecting his complaint. The writ petitioner has no grievance about the quality of the services rendered by the third respondent even in the said writ petition.
19. The third proceeding in which the third respondent appeared for the petitioner herein, was the writ petition in W.P.No.11596 of 2006. The prayer in this writ petition was only for police protection to complete the construction of a mosque. In this case, the third respondent cannot be said to have appeared for the petitioner as an individual. The petitioner in W.P.No. 11596 of 2006 was only the Wakf. It was merely represented by all the five Muthavallis, including the writ petitioner herein. Therefore, the third respondent could be construed only as a counsel for the Wakf which was the petitioner in W.P.No.11596 of 2006. Suppose during the pendency of the said writ petition W.P.No.11596 of 2006, the term of office of all the Muthavallis, including the writ petitioner herein, had expired and a new set of Muthavallis had been appointed, the names of those new Muthavallis would have been substituted in the place of the writ petitioner herein, so as to enable the Wakf to continue to prosecute the writ petition. Therefore, it is not the writ petitioner as an individual, for whom the third respondent had appeared in W.P.No.11596 of 2006.
20. Once it is found that the writ petitioner in W.P.No.11596 of 2006 was a Wakf, it follows as a necessary corollary that there could have been no conflict of interest between a Wakf and the Wakf Board. The Wakf, which was the petitioner in W.P.No.11596 of 2006, does not have any grievance about the services rendered by the third respondent herein. Even today, the third respondent has not done anything contrary to the interest of the Wakf, by appearing for the Wakf Board.
21. Today, all public charitable trusts, public religious trusts and other institutions are bogged down by litigation, especially when elections are held. If an advocate happens to be a counsel for some of the contestants in the elections and later become the counsel for the institution, after his clients got elected, could we construe the same as amounting to conflict of interest? I think not. Take for instance, Co-operative Societies or Societies registered under the Societies Registration Act. Whenever they sue or they are sued, the authority for an advocate to appear on behalf of the Society is always given by the Secretary or other office bearer, who is empowered by the bye-laws to sign vakalatnama. In case such an office bearer himself is placed under suspension and an enquiry is initiated, he cannot come and contend that the advocate for the Society, having accepted his signature in the vakalat on the earlier occasion, should not appear against him.
22. Today, the objection raised by the writ petition, is to the appearance of the respondents 2 and 3 for the Tamil Nadu Wakf Board in a civil revision petition CRP(PD) No.4097 of 2014. Let me now see whether the subject matter of the civil revision petition was the subject matter of any of the three proceedings in which the second or third respondent had appeared for the writ petitioner. The subject matter of the first proceeding in which the third respondent appeared for the writ petitioner was only a complaint of mismanagement and misappropriation made by one R.M.Siraj against the writ petitioner. The subject matter of the second proceeding in W.P.No.1609 of 2006, in which the third respondent appeared for the writ petitioner, was also the same, namely the complaint of mismanagement. The third proceeding in which the third respondent appeared, was actually a proceeding by the Wakf, represented by five Muthavallis, one of whom was the writ petitioner herein. Even otherwise, the subject matter of the said writ petition was only to provide police protection to construct a mosque. Therefore, there were only two issues involved in all the three earlier proceedings in which the third respondent appeared for the writ petitioner. These issues are (i) whether the writ petitioner and other Muthavallis were guilty of mismanagement and misappropriation, and (ii) whether the Wakf is entitled to police protection for construction of a mosque.
23. In contrast to the issues that arose in the aforesaid three proceedings, the issue which arises in the civil revision petition is whether the assumption of direct management of the wakf in question by the Wakf Board was correct or not. The order for assumption of direct management was passed by the Tamil Nadu Wakf Board on 23.7.2012. In that case, the second respondent never appeared for the petitioner. Before the Wakf Board, another Advocate by name S.R.Sundar appeared for the writ petitioner herein. As against the order of the Wakf Board dated 23.7.2012, assuming direct management of the Wakf, the writ petitioner filed W.P.No.22616 of 2012. Even in that writ petition, another Advocate by name K.Moorthy appeared for the writ petitioner. The issue involved in the order of the Wakf Board dated 23.7.2012, which led to the filing of the writ petition in W.P.No. 22616 of 2012 and which also led to the writ petitioner going to the Wakf Tribunal, was as to whether the assumption of direct management of the Wakf by the Tamil Nadu Wakf Board was right or wrong. Such an issue never came up in any of the three proceedings in which the third respondent appeared as an Advocate for the writ petitioner. As a matter of fact, in the first proceeding in which the third respondent appeared as counsel for the writ petitioner, the Wakf Board fixed the tenure of office of the writ petitioner only for three years from 07.12.2005 up to 06.12.2008. The petitioner never chose to challenge the restriction of his tenure by asking the third respondent to file a writ petition. On the contrary, it was only his opposite party, namely R.M.Siraj, who filed a writ petition challenging the rejection of his complaint against the petitioner herein.
24. Therefore, it is clear that the third respondent had appeared (i) for the writ petitioner herein in two proceedings, defending him against allegations of mismanagement and misappropriation, and (ii) for the Wakf seeking police protection to construct a mosque. In such circumstances, there can be no impediment for the third respondent, after having been enlisted as a Panel Counsel for the Wakf Board, to defend the action of the Wakf Board assuming direct management of the Wakf.
25. As a matter of fact, Wakf Board appears to be fully conscious of the fact that the third respondent had appeared for the writ petitioner in previous proceedings. Still, the Wakf Board had reposed confidence in the third respondent by engaging him as a counsel. The third respondent's appearance as a counsel for the writ petitioner on previous occasions, should normally bother the Wakf Board more than the writ petitioner. But, the writ petitioner is today bothered perhaps due to the fear that he is getting exposed.
26. The conduct of the writ petitioner also deserves to be deprecated. By the order dated 23.7.2012, the Wakf Board assumed direct management of the Wakf. By the time this order was passed, the tenure of office of the writ petitioner was over, long time before. It may be recalled that by the order of the Wakf Board dated 07.12.2005, the tenure of the writ petitioner and the Co-Muthavallis was fixed only for three years from 07.12.2005 to 06.12.2008. But, the Wakf Board woke up and passed an order on 23.7.2012 assuming direct management. In the writ petition filed by the writ petitioner in W.P.No.22616 of 2012, the writ petitioner could not secure an interim order of protection. All that the writ petitioner could get was only an order of status quo as on that date. The order of status quo was passed on 21.8.2012. The said order is in force even till date. Therefore, unable to regain control, the writ petitioner appears to have devised a plan. The writ petitioner filed a suit in O.S.No.301 of 2014 on the file of the Wakf Tribunal, Villupuram and managed to secure an interim order of injunction. Interestingly, the plaint filed by the writ petitioner herein in O.S.No.301 of 2014 shows that in paragraph 13 of the plaint, he has mentioned about the filing of the writ petition W.P.No.22616 of 2012. But, the writ petitioner has been careful enough not to make a mention about the status quo order passed on 21.8.2012 by this Court. Even in paragraph 18 of the plaint, where the writ petitioner has mentioned about his writ petition, he has chosen to suppress the factum of this Court passing a status quo order. The omission of the petitioner herein to make a mention about the status quo order passed by this Court, does not appear to be accidental, but intentional. This is clear from the list of documents filed by the writ petitioner under Order VII, Rule 1, CPC. The status quo order does not find a place there.
27. After having secured an interim order from the Principal Sub Court, Villupuram, by suppressing a very vital information, the petitioner appears to be now on the run, in view of the civil revision petition filed by the Wakf Board on the file of this Court, exposing him. I really wonder how the Principal Sub Court, Villupuram, granted an ad-interim exparte order of injunction on 13.10.2014, in respect of a cause of action that arose on 23.7.2012. This is the reason why this Court appears to have entertained the civil revision petition under Article 227 against such an order of the Principal Sub Court. Today, the petitioner is feeling the heat under his feet, only because of the third respondent's commitment to his client's cause and the loyalty exhibited by the third respondent to his client, namely the Tamil Nadu Wakf Board. I think the petitioner would not have had any objection for the appearance of the 3rd respondent, if the 3rd respondent, even while appearing for the Wakf Board, had agreed to help the writ petitioner clandestinely.
28. As I have stated earlier, there is no allegation in the writ petition that the third respondent was guilty of negligence or dereliction of duties or any professional misconduct, when the third respondent appeared for the writ petitioner in the year 2005. There is no allegation that the third respondent is guilty of misconduct insofar as his services to the Tamil Nadu Wakf Board is concerned. Interestingly, the grievance of the writ petitioner is that the third respondent should not render quality and diligent services to the writ petitioner's opponent. If the logic behind the grievance of the petitioner is accepted, no advocate representing a private party at some point of time in his career can render efficient services after getting appointed as Government counsel. No Government Pleader can escape such allegations, if elevated to the Bench of the Court if the logic behind the grievance of the writ petitioner is accepted.
29. Section 35 of the Advocates Act empowers the State Bar Council to take action against an advocate on its rolls, if he is guilty of professional or other misconduct. The word "misconduct" is not defined in the Act. As pointed out by Krishna Iyer, J, in Bar Council of Maharashtra v. M.V. Dabholkar [(1976) 2 SCC 291], which was quoted with approval in D.P.Chaddha v. Triyugi Narayan Mishra [AIR 2004 SC 2440], the central function of the legal profession is to promote the administration of justice. Canons of conduct cannot be crystallised into rigid rules, but felt by the collective conscience of the practitioners as right. Law is no trade and briefs no merchandise.
30. More than a sticky loyalty to the wrongful cause of one's own client, a lawyer has a duty towards Court and to Society. Therefore, if an Advocate takes up the cause of a client in one particular matter and takes up the cause of a public institution like the Wakf Board against his former client, long after he ceased to be a lawyer for the former client, his former client should not be allowed either to win over him or to chuck him out of the litigation by threatening to proceed before the Bar Council.
31. Today, there is no allegation by the writ petitioner that any confidential information that the third respondent acquired from him, is made use of by him while appearing for the Wakf Board. A limited prohibition, if there is any for a lawyer to take up the cause of the opponent of his former client, revolves around the sharing of any confidential information or document that comes into the possession of the lawyer. In the absence of any allegation of that nature, no complaint of misconduct can be sustained.
32. More over, the case on hand is of a peculiar nature. The writ petitioner herein could not have had an adversarial litigation against the Tamil Nadu Wakf Board. Throughout the history of his litigation, the claim made by the petitioner is only to the Trusteeship of a Wakf, which is a public religious and charitable Trust. The Tamil Nadu Wakf Board is established for the purpose of overseeing the management and administration of all Wakfs, to ensure that they serve the cause for which they are established. Therefore, all parties, including the writ petitioner, the respondents 2 and 3 as well as the Tamil Nadu Wakf Board, could have only one object in mind, namely to put the properties of the Wakf to the use for which they are intended. If the third respondent now serves such a cause by representing the Tamil Nadu Wakf Board, I do not know where the conflict of interest is. On the contrary, the third respondent is obliged, to his own conscience and to the conscience of the Wakf Board to expose the misdeeds of the petitioner, if there are any.
33. In exercise of the powers conferred by Section 49(1)(c) of the Advocates Act, 1961, the Bar Council of India has issued a set of Rules, Part VI, Chapter II of which contains "Standards of Professional Conduct and Etiquette". Section 2 of Chapter II of Part VI of those Rules enlists the duty of a lawyer to his client. This Section 2 contains about 23 directives, none of which is applicable to the case on hand. What is contained in Rule 14 is that an Advocate, at the time of commencement of his engagement and during the continuance thereof, make full and frank disclosures to his client relating to his connection with the parties and any interest or about the controversy he has or likely to affect his client's judgment in either engaging him or continuing the engagement. This Rule 14 will be applicable only insofar as Tamil Nadu Wakf Board is concerned. After having known that the third respondent had earlier appeared for the writ petitioner, the Tamil Nadu Wakf Board is comfortable to continue to engage his services. Therefore, the writ petitioner cannot have any objection.
34. Rule 33 of the aforesaid Rules, which may be relevant for our case, reads as follows:
"An Advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings or acted for a party, shall not act, appear or plead for the opposite party"
But, in this case, I have indicated in the tabular statement extracted earlier that the second and third respondents did not advise the writ petitioner in connection with the same subject matter, namely the assumption of direct management of the Wakf by the Tamil Nadu Wakf Board. Therefore, Rule 33 is also not applicable to the case of the respondents 2 and 3.
35. The Courts have always drawn a distinction between civil cases and criminal cases in this regard. In the Matter of an Advocate [AIR 1958 Mad 511 (FB)], an Advocate was charged of professional misconduct on the ground that after having given an opinion to prosecute an accused, during his tenure as Public Prosecutor, he appeared for the very same accused. Speaking on behalf of the Full Bench, Ramachandra Iyer,J, observed as follows:
"But whether the question is viewed merely on the basis of a contract of service or from the higher standards of professional morality, which in our opinion should be the guiding principle, it is improper for an advocate who held the office of a Public Prosecutor or was engaged as a Special Public Prosecutor to accept an engagement for the defence in a case in which at an earlier stage he advised or gave an opinion to the prosecution or appeared on behalf of the prosecution at the stage of interlocutory applications like applications for bail etc.,"
But, the Full Bench gave an indication that the decision with regard to the civil cases may be different.
36. While following the decision of the Full Bench of the Madras High Court, a Division Bench of the Andhra Pradesh High Court in Public Prosecutor v. Kothakapu Etreddy Venkata Reddi [AIR 1961 AP 105] also indicated that civil cases may stand on a slightly different footing, in view of Rule 20 of the Civil Rules of Practice.
37. The High Court of Madras had made a set of rules known as 'Civil Rules of Practice and Circular Orders' in exercise of the powers conferred by Section 122 of the Code of Civil Procedure, 1908. Rule 20 of the said Rule reads as follows:
"20. Pleader not to Act in opposing interest.- Except when specially authorised by the Court or by the consent of the party, a pleader who has advised in connection with the institution of a suit, appeal or other proceeding, or has drawn pleadings, in connection with any such matter, or has during the progress of any such suit, appeal or other proceeding, acted for a party, shall not, unless he first gives the party for whom he had advised, drawn pleadings or acted, an opportunity of engaging his services, appear in such suit, appeal or other proceeding, or in any appeal, or application for revision arising therefrom or in any matter connected therewith for any person whose interest is opposed to that of his former client:
Provided that the consent of the party shall be presumed if he engages another pleader to appear for him in such suit, appeal or other proceeding without offering an engagement to the pleader whose services he originally engaged.
Explanation. -- Notwithstanding anything hereinbefore contained, a practitioner who discloses to one client the information confided to him in his capacity as the legal practitioner of another client without the latter's consent, shall not be protected merely by reason of his being permitted to appear for the other client under this rule."
The above Rule 20 was taken note of by the Division bench of the Andhra Pradesh High Court in the aforesaid decision, to come to the conclusion that civil cases would stand on a different footing than criminal cases.
38. Mr.Abdul Rahman, learned counsel for the petitioner placed reliance upon the decision of the Supreme Court in V.C.Rangadurai v. D.Gopalan [AIR 1979 SC 281]. In the said case, an Advocate was engaged by an elderly couple, one of whom was deaf, for filing two suits based upon promissory notes. Though the Advocate drafted the plaint and filed the same, it was returned for certain defects and was re-presented. But, the Advocate made false representations to his clients that the suits had been numbered and a decree has also been passed. The truth was found out only after the plaintiffs served a notice on the debtor. When a complaint was lodged before the Bar Council, it was pleaded by the Advocate that he merely drafted the plaint, but did not file it into Court, in view of the fact that the debtor had earlier consulted him in another matter and that therefore, he wanted to avoid conflict of interest. The Advocate claimed that he handed over the brief to another lawyer. But, that other lawyer gave evidence to the effect that he did not take up the brief. The Bar Council accepted the statement of the other Advocate and held the former guilty of misconduct. It is in that context, that the Supreme Court observed in paragraph 30 of the report that it is not in accordance with the professional etiquette for one advocate to hand over his brief to another and conduct the case as if the latter had himself been briefed. The Court pointed out that the counsel's paramount duty is to the client and when he forms an opinion that a conflict of interest exists, his duty is to advise the client that he should engage some other lawyer. The Court also pointed out that it is unprofessional to represent conflicting interests, except by express consent given by all concerned, after a full disclosure of facts.
39. I do not know how the aforesaid decision supports the case of the petitioner. At the outset, I have found that there was no conflict of interest. The issue involved in the three cases in which the third respondent appeared for the petitioner earlier, was totally different from the issue involved in the present proceedings. Moreover, in the previous proceedings also, the third respondent appeared for protecting the interest of the Wakf. It is what he is now engaged to do, today by the Tamil Nadu Wakf Board.
40. Hence, I find that the present attempt of the writ petitioner is only to intimidate the third respondent and prevent him from effectively defending the Wakf Board. Interestingly, the third respondent has filed vakalat for the Tamil Nadu Wakf Board, even in the writ petition W.P.No.22616 of 2012. At that time, the petitioner had not objected. Now, the petitioner has obtained an interim order from a Wakf Tribunal contrary to and suppressing an order of this Court in a writ petition. Since the third respondent has exposed it, the petitioner wants to remove the third respondent as a thorn in the flesh. This Court will not be a party to such tactics adopted by clients like the writ petitioner. The petitioner is not only guilty of abuse of process of court in the conduct of the proceedings before the Wakf Tribunal but also guilty of attempting to remove an inconvenient Counsel from appearing for his opponent.
41. Therefore, the writ petition is frivolous and hence it is dismissed. However, since it is dismissed at the stage of admission, there will be no order as to costs. Consequently, M.P.No.1 of 2014 is also dismissed.
Index : Yes 17.11.2014. Internet : Yes kpl To The Chief Executive Officer Tamil Nadu Wakf Board No.1, Jaffar Syrang Street Vallal Seethakathi Nagar Chennai 600 001. V.RAMASUBRAMANIAN,J. kpl Order in W.P.No.29284 of 2014. 17.11.2014.