P L D 1962 (W (PLP)

8. According to subsection (2) of section 10 of the Act, if the application is not rejected summarily, it will have to be sent to the Bar Council for inquiry and report. The only question that requires to be decided, at this stage, Is whether It is a fit case for being referred to the Bar Council, or whether the application ought to be rejected summarily.

9. On the very first day of the hearing before us, the applicant Mr. A. A. Zari, was examined at some length with a view to clarify certain points mentioned In his application. The allegations made by him against the respondent may be sum marised under the following main heads :‑ (1) That the respondent tampered with Muzaffar and Hanif accused during the investigation of the criminal case against them and tutored one or both of them to make certain state ments before the police. (2) That the respondent wrote him a letter containing false and defamatory statements in connection with a case of the theft of a ball which had been registered by the applicant with the police against his landlord, Habibur Rehman. (3) That while knowing fully well that the respondent's brother‑in‑law, Habibur Rehman, did not need the premises, occupied by the applicant, reasonably and !n good faith, for his personal use instituted ejectment proceedings against the applicant. (4) That the said ejectment proceedings were instituted on the advice and at the Instigation of the respondent. (5) That while knowing fully well that the applicant had not been guilty of a conduct which Is a nuisance or an annoyance, to the adjoining or neighbouring occupiers, he supported the allegations made by his brother‑in‑law, in the ejectment proceedings. (6) That during the course of ejectment proceedings the respondent tutored his brother‑in‑law, Habibur Rehman and also interfered while Habibur Rehman was being examined as a witness and suggested to him an answer. (7) That although the respondent was a material witness In the ejectment proceedings and had been summoned by the applicant to appear before the Rent Controller, he continued to prosecute those proceedings on behalf of his brother-in‑law.

10. After having carefully read the application of Mr. Zari and his detailed statement recorded by us, the impression which we formed was that the application had not been given in good faith and In taking action under section 10 of the Bar Councils Act, Mr. Zari's intention is to stifle the ejectment proceedings which the respondent's brother‑in‑law, Habibur Rehman, has instituted against him. The application not being a bona fide one and being actuated by improper motives, we could have dismissed it summarily, without going Into the merits of the various allegations, but since arguments were addressed to us for a considerable length of time, we think it proper to deal with some of the allegations and the arguments advanced by the parties.

11. It is admitted that one of the criminal cases lodged by the applicant, against Hanif and Muzaffar has been sent to a Court of law, while the other criminal case is still under investi gation with the police. Until those cases are decided, one way or the other, it would, we think, be not proper for this Court to express any opinion on the merits of the allegations which the applicant has made against the respondent, because any such expression of opinion might adversely affect the decision of those cases. We cannot, however, help remarking that the tutoring of any of the two accused, by the respondent, could not have had any effect on the decision which the police had to take in the matter. Whatever had been told to the police by the two accused would have been altogether irrelevant, if on the evidence pro cured by the police they had come to the conclusion that a prima facie case had been made out against one or both of them. Moreover, the alleged statement which the respondent prompted Muzaffar to make could not be used as a piece of evidence against either or both the accused, in view of the express pro visions of section 25 of the Evidence Act, nor do we think that the alleged confession of guilt made by Muzaffar in the presence of Mr. Zari applicant could be used in the criminal proceedings because that confession appears to have been obtained on the promise that the applicant, who was the complainant in that case, would save the accused. No useful purpose can, therefore, be served, at this stage, to refer this matter to the Bar Council under section 10 (2) of the Bar Councils Act, 1926.

12. The remaining allegations, which have been listed under five different heads arise out of the ejectment proceedings which are pending against the applicant. In reply to one of the questions, which we put to the applicant during his examination, he stated that he was not present when the respondent advised his brother‑in‑law, or instigated him, to lodge the ejectment proceedings against him, and as the applicant has not stated that this information was conveyed to him by any other person, the allegations on the face of it appear to be without any substance.

13. As to the allegation that the respondent had personal knowledge that his brother‑in‑law, Habibur Rehman, did not require the premises in dispute for his personal use, the decision of this matter has yet to be given by the Rent Controller and It would not be proper for us to usurp his functions and decide whether the allegations made by the landlord in the ejectment proceedings are true or false. Unless 9t is first held that the landlord's allegations are false the question of the respondent "knowingly" prosecuting a false case would not arise. We cannot, however, help pointing out that the landlord's allegations that the premises in dispute are required by him for his personal use cannot be said to be altogether unfounded. From a perusal of the various documents placed on the record and the statement made by the applicant before us it appears that Mr. Habibur Rahman had constructed a building containing four flats, out of which one flat is In occupation of the applicant. Immediately after this building was constructed, Habibur Rehman was transferred to Dacca and when he came back to this place, after sometime, he filed applications for ejectment against three of the tenants. In one of the applications (180/1956) the Rent Controller came to the conclusion that the applicant, Habibur Rehman, was In need of residential accommodation for himself and his family, but disallowed his application against one of the tenants, on the ground that he had filed a suit for ejectment of another tenant and would shortly be able to get possession of those premises. The applicant himself admitted that the flat in occupation of Habibur Rehman has only two rooms, although he has five children, three of whom are grown up. In these circumstances, if the respondent, on the instructions received from his brother‑in‑law that he needed the premises in dispute for his personal requirements, lodged an application for ejectment against the applicant, it would not be possible to say that the respondent "knowingly" prosecuted a false case, and, hence, was guilty of professional misconduct.

14. As to the ground that knowing fully well that the respondent was to appear as a witness in those proceedings he continued to prosecute his brother‑in‑law's case, the applicant's case is weaker still. On the 8th July 1961 the applicant gave an application to the Rent Controller praying that the respondent be asked to withdraw from the prosecution of the ejectment proceedings because, firstly, he was taking personal interest, and, secondly, because he was to appear as a witness. The respondent did not withdraw from the case and appeared before the Rent Controller as a witness for the applicant on the 25th November 1961 and the 9th December 1961. From a perusal of the copy of the respondent's deposition, which was placed on the record, it appears that the respondent was not a necessary witness, because not a single question was put to him with regard to the facts of the case. In reply to one of the questions put to him by the applicant, the respondent stated that he was not personally aware of the assertions of the applicant since he did not live in the premises in dispute. It appears to us that the object of summoning the respondent, in the ejectment proceedings, was to debar him from prosecution of his brother‑In‑law's case; otherwise If the respondent had been aware about the facts of that case, C Instead of questioning him on irrelevant points, the applicant would have put him direct questions about the case itself. In these circumstances, we do not think that the respondent acted improperly in continuing to prosecute the case even after he had been summoned as a witness by the applicant.

15. During arguments before us a good deal of case‑law was cited, but we propose referring to a few of those cases, because the principles laid down therein appear to be more or less well established. Although in two of the cases cited at the Bar, it was held that the tutoring of a witness by an Advocate was improper, no case was cited in which a similar finding was given where an Advocate told something to an accused person during the Investigation of a case by the police against him. As Muzaffar and Hanif were not witnesses, but were accused in the criminal case, which was being investigated by the police, at the instance of the applicant, even if it be assumed that the respondent suggested to one or both of them the kind of statement they should make to the police, his conduct cannot be considered to be un‑professional. 15‑A. The applicant cited certain authorities, in which it was held that the conduct of an Advocate who helps a client in prosecuting a case which he knows to be false is un‑professional, but not a single authority was shown to us in which it has been held that before an Advocate accepts a brief it is obligatory for him to find out what the truth of the matter is and handle the case only if he is satisfied that his client's case is not false. Apart from the absence of such authorities, the position taken up by the applicant, on the face of it, is untenable, because no one can expect from an Advocate that he should set up an investigating agency, for finding out the truth of the allegations on which his client's case is based, before he accepts the brief. Had this been the law, no Advocate would be able to accept any brief, because, at the very outset, he would be faced with the stupendous task of finding out the truth of the allegations on which his client's case is based and he would not be able to do it unless he either himself acts as an investigating officer, or deputes someone else to do this job. The position of an Advocate who is personally aware of the falsity of his client's case would, however, be somewhat different, because it can be argued, with some show of reason, that an Advocate should not accept a case which he knows to be altogether false, as for instance, where a suit is based on a forged and fabricated document, which fact is within the knowledge of the Advocate. As, however, any communication which passes between a client and his Advocate is privileged and the Advocate cannot be forced to disclose the contents of that communication it would be difficult to establish that an Advocate knew, as a matter of fact, that his client's case was false. As in the present case the Rent Controller, has not, so far, given a finding that the applicant's landlord does not require the property in the applicant's possession, reasonably and in good faith for his personal use, there is no scope for the argument that the landlord's case is false and that the falsity of that case is within the knowledge of the respondent.

16. In Muhammad Taqi v. M. A. Ghani (A I R 1945 Lah. 97) the legal position, in such matters, has been summed up in the following words:‑ "A counsel owes a duty to his client and he must carry out faithfully his client's instructions. If his client makes serious allegations against another party in a suit it is counsel's duty to plead those allegations in the plaint or written statement or other pleading. A counsel, however, must perform his duty with discretion. He should not plead what are obviously irrelevant, wanton, wild and reckless allegations. A counsel, is, however, not a judge in the case and it is not for him to decide whether the allegations made by his client are true or false. He is bound, except in very exceptional circumstances, to accept his client's word. But since a counsel cannot claim absolute privilege, a counsel who signs a pleading containing serious allegations, lays himself open to a prosecution for defamation. However, he cannot be prosecuted successfully unless it is shown that he acted in bad faith or maliciously. A counsel who has signed a pleading must be presumed to have acted bona fide and without malice and no counsel should be called upon to answer a complaint for defamation merely because he has signed a pleading which contains defamatory matter. It must be presumed that the counsel acted honestly and without malice, in which case he can never be convicted. Otherwise counsel cannot possibly discharge their duties to their clients."

17. We are in respectful agreement with the principles laid down in this case and applying those principles to the present case we are of opinion that no case has been made out against the respondent for the commission of professional or other misconduct, and, hence, no question of asking the Bar Council to make an inquiry into the matter arises.

18. The applicant referred to two cases, one decided by a Full Bench of the Lahore High Court and another decided by a Full Bench of the Bombay High Court and reported as (P L D 1954 Lah. 674) and (A I R 1927 Bom. 517), in which action was taken against two Advocates for tampering with the evidence of witnesses. The views expressed in these cases have no application to the facts of the present case, because it has not been alleged that the respondent tampered with the evidence of any witness.

19. The applicant also referred to Dharnidhar Roy and others v. Phul Kumari Debi (A I R 1945 Pat. 391) in which it was held that a pleader conducting a case of his client knowing that he was a material witness in the case and had been included in the list of witnesses to be cited on behalf of his client is guilty of gross professional misconduct and to Harakali Bose v. S. Janaki Devi Choudharani and others (A I R 1956 Pat. 161 at p. 170), in which somewhat similar views have been expressed. As, in our opinion, the respondent was not a material witness in the ejectment proceedings and as he appears to have been summoned by the applicant mala fide, the views expressed in these two cases are of no help to him.

20. Lastly, the applicant referred to a case decided by a Full Bench of the Allahabad High Court to the matter of Ahmad Ashrab Vakil (A I R 1927 All. 45) in which it was held that legal practitioners must realize that if they make, or associate themselves with statements which they know are dishonest and untruthful for the purpose of misleading the Court they must, on proof of misconduct, bear personal responsibility. He also referred to the case of U. A. Higher Grade Pleader (Cr. L J 466 (sic)), in which the pleader whose conduct was "unseemly, contumacious and impertinent" was held to be guilty of professional misconduct. Neither of these authorities, is of any help to the applicant, because it has not been shown that any statement made in the ejectment proceedings was dishonest or untruthful to the knowledge of the respondent and there is nothing to indicate that the respondent's conduct was "unseemly, contumacious and impertinent".

21. For reasons given above, we are of opinion that the present is not a fit case for taking action under section 10 of the Bar Councils Act, 1926. We, therefore, reject the application summarily and direct the applicant to pay a sum of Rs. 200, as costs, to the opposite‑party. While dismissing this application we cannot help remarking that the conduct of the applicant, in having recourse to the provisions of the Bar Councils Act for an ulterior object, namely, to stifle the ejectment proceedings, is not very commendable. But for the anxiety to stifle those proceedings, we are certain, no such application would have been moved for taking action against the respondent, for the alleged breach of his professional duties. A. H. Application rejected.