P (PLP)

MUHAMMAD SHARIF, J.‑These are two petitions, one by Muhammad Hussain and Sayed Mehdi Shah, Petition‑writers, Gujrat, and the other by Mian Fazal Karim and 7 others of Gujrat to set aside the orders of the learned District Judge, Gujrat, dated 6th of June 1950, declaring them touts under section 36 of the Legal Practitioners Act. On a written requisition dated 7th of May 1949, by ten members of the District Bar Association, Gujrat, that a special meeting of the Association be convened for the purpose of passing a resolution declaring Muhammad Hussain and Sayed Mehdi Shah, Petition‑writers, as touts, the meeting was ordered by the President to be called for the 18th of May 1949, at 1‑30 p.m. This was done and a notice to the members of the Bar was issued by the joint Secretary on 9th of May 1949. The notice simply recited that the extraordinary meeting of the Bar Association under section 36 of the Legal Practitioners Act would be held on the 18th of May at 1‑30 p. m. to consider the requisition and all members were requested to make it a point to attend. A copy of the notice was also put up on the Notice Board in accordance with the rules of the Association. It does not, however; appear that the original requisition was circulated among the members qr was put up on the Board, nor is there any indication as to the persons for whose declaration as touts the requisition was made. The meeting was held on the date fixed and out of the total of 37 members, 28 attended the meeting at which Maulvi Muhammad Hussain and Sayed Mehdi Shah, Petition‑writers, were unanimously declared touts. The copy of the resolution was forwarded to the District Judge, Gujranwala, for necessary action. The learned District judge made over the inquiry to the Senior Subordinate Judge, Gujrat, on 27th of May 1949. Notices were issued to the respondents. They filed their written statements and produced as many as 1.39 witnesses in defence. No evidence was led by the Bar Association. The learned District judge on a consideration of the entire evidence on the record, held that the presumption arising under the Explanation to section 36 of the Legal Practitioners Act had not been rebutted and declared Muhammad Hussain and Sayed 1Vjehdi Shah as touts in accordance with the requirements of section

36. While the above proceedings were going on, the Bar Associa tion, Gujrat, in another extraordinary meeting held on 23rd of February 1950 unanimously passed another resolution against Mian Fazal Karim, Petition‑writer, and twelve others. Notice over the signatures of the President was issued on 15th of February 1950. It was as follows :‑ "It being the view 6f the members of the Bar Association that toutism is prevalent in its worst form without any abatement and that some effective step should once be taken to completely eradicate this evil, notice is hereby given under section 36 of the Legal Practitioners Act that a meeting of the members of the Bar Association shall take place in the Bar Room on 23rd of February 1950 at 1‑30 p. m. to resolve on the subject of touts and to move the District judge to take action against them. The Secretary to put up today a copy of this notice on the Notice Board which shall remain there till the meeting is held, the peon to circulate this notice personally also". This notice too did not disclose the name of the persons who were to be considered for the purpose of being declared as touts. The meeting was duly held on 23rd of February 1950 at the appointed time. Twenty‑one members were present and the resolution was passed unanimously. It appears that the names of Fazal Karim and twelve others was mentioned at the meeting itself and the members of the Association were of the view that the reputation of these persons was such that they should be declared touts under the Legal Practitioners Act. The copy of the resolution with a forwarding letter was despatched to the learned District Judge, Gujranwala, to take necessary action. The learned District judge held the inquiry himself. He issued notices and gave an opportunity to the respondents to produce their evidence. In this case too, no evidence was' produced on behalf of the Bar Association. By an order dated 6th of June 1950, the learned District judge held that the evidence produced by the respondents was insufficient to rebut the presumption raised by the resolution 'passed by the members of the Bar Association. The above two orders are now under revision. Section 36 of the Legal Practitioners Act empowers the High Court District judge, etc., to frame and publish lists of persons proved to their satisfaction by evidence of general repute or otherwise, habitually to act as touts, and may, from time to time, alter and amend such lists. To this is added the following Explanation:‑ "The passing of a resolution, declaring any person to be or not to be a tout, by a majority of the members present at a meeting, specially convened for the purpose, of an association of persons entitled to practise as legal practitioners in any Court or revenue office, shall be evidence of the general repute of such person for the purposes of this subsection." In order to constitute the resolution of the members of the Bar "evidence of the general repute" of any person for the purposes of this subsection, it must fulfil certain conditions. According to A. I. R. 1932 Bombay 596, these are: (i) that there must be a meeting of an association of persons entitled to practise as legal practitioners in the Court ; (ii) that the resolution declaring a person to be a tout must be passed by a majority of the legal practitioners present at the meeting; and (iii) that the meeting must be specially convened for that purpose. The words "any person" appearing first in the Explanation to section 36, Legal Practitioners Act, have been defined by A. I. R. 1937 Sind P. 4 to mean "any named person" or "any specified person". Where all these conditions are satisfied, a presumption shall arise under the Explanation to section 36, but it shall not arise where any one of the conditions is not satisfied. The proceedings of the Bar Association, Gujrat, may now be judged in the light of the above tests. The meeting "specially convened for the purpose" would clearly mean the meeting at which the names of the persons known or specified have to be considered for the purpose of expressing an opinion with regard to their reputation as touts. This was not, done at all. In the first requisition made by ten members on 7th of May 1949, the names of Maulvi Muhammad Hussain and Sayed Mehdi Shah were no doubt given, but the notice which was issued in pursuance of that requisition, omitted to mention them. The members of the Association, before coming to the meeting, were not aware of the names or descriptions of the persons who were to be considered for the purpose of being declared touts at the special meeting. This aspect of the case was presented before the learned District Judge and A. I. R. 1932 Nagpur 141 was relied upon. The learned District judge remarked that :‑ "1932 Nagpur 141 appears to support the contention of the learned counsel but I was referred to a later ruling of the Lahore High Court (139 I. C. 9Q0) in which towards the end, of the body of the judgment it has been observed that if a meeting was specially convened to declare `A' as tout, but the resolution proceeded to declare `B' as a tout, it was unlawful, but that the position is different if the meeting had been convened, as in the present case, for declaring any class of persons to be or not to be touts. Not only am I bound by the ruling of the Lahore High Court, but with the profoundest respect, I do not find any warrant in the explanation of subsection (1) of section 36 of the Legal Practitioners Act to hold that the names of the persons subsequently declared to be as touts or not to be touts must appear in the notice. The learned District Judge was clearly in error. 139 I. C. 900 was consulted and it was discovered that it is not a Lahore case, but was the same as reported in A. I. R. 1932 Nagpur 141, which the learned District judge himself conceded, supported the contention of the respondents before him. I was not referred to any other Lahore case which laid down the proposition different from that contained in A. I. R. 1932 Nag.

141. The object of the special meeting contemplated in the Explanation to section 36, Legal Practitioners Act, is to consider specifically certain persons who were suspected of tourtism and not that some persons in the course of the proceedings might come up for discussion in one or the other manner. The declaration of a person as a tout casts a slur upon his reputation and profession and the attention of the members of the Bar must be directed in particular to a particular matter and not, that it may be dealt with in a general manner. The proceedings of the Bar Association, Gujrat, on both the occasions suffer from this very serious defect and the presumption, which could only arise where the conditions laid down in the Explanation to section 36 were strictly followed, would not arise. The argument, that the mention in the notice of the names of the persons to tie considered as touts at the special meeting, might give them a chance to canvass the members of the Association for votes, does not appear to be sound. The members are expected to act with courage and honesty and it is to guard against the greater danger of bargaining among the members themselves in the course of the meeting that the persons whose case was to be considered, must be known or specified. Besides the resolutions of the Bar Association, there was no other evidence examined against the petitioners. The resolutions as pointed out above, were not passed in accordance with law and there was, therefore, no case against the petitioners which they could be called upon to answer. It is not clear how a 'copy of the resolution submitted to the District judge could prove the resolution said to have been passed at a meeting of the Association. It had to be proved like any other fact. I was not referred to any provision of the Evidence Act or any other law which would dispense with the formal proof of the acts done by the Bar Association. The proceedings of the Bar Association were wholly irregular and the resolutions passed by it could be no evidence of the general repute of the persons against whom they were passed. These petitions are consequently accepted and the orders of the District Judge, Gujranwala, in both the petitions dated the 6th of June 1950 declaring the petitioners as touts are hereby set aside. There is, however, nothing to prevent the Bar Association to take up the matter again in accordance with the due require ments of law. I would make no order as to costs. A. H. Petitions accepted.