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2014 DIGILAW 960 (CAL)

Ram Chandra Prasad v. Union of India

2014-09-29

NISHITA MHATRE, TAPASH MOOKHERJEE

body2014
Judgment Tapash Mookherjee, J. 1. The present appeal is directed against the judgment dated 20.12.2012 passed by the learned Civil Judge (Senior Division), 9thCourt at Alipore, 24 Parganas (South) in money Suit No. 31/2011. 2. The Appellant Sri Ram Chandra Prasad is the plaintiff in the Suit and the Suit has been dismissed on contest. Hence, he has filed the present appeal. 3. Appellant’s case, in the Suit is as follows:- 4. The Appellant is an Advocate of the High Court at Calcutta since 1966. He was empanelled as a junior Central Government Advocate Group-III in the year 1979. Subsequently he was included in the panel of senior Central Government counsel Gr.- I for conducting cases on behalf of the Central Government. Respondent No.- 2 was the Joint Secretary and senior Central Government Advocate posted at Branch Secretariat at Calcutta and Respondent No.- 3 was a Central Government Advocate also posted at Branch Secretariat at Calcutta. There was a complaint of misconduct against the Appellant before the Bar Council of West Bengal by a client of the Appellant. After inquiry the Appellant was found guilty of misconduct and reprimanded for the wrong by the Bar council of West Bengal by an order dated 13.01.1997. Being aggrieved, the Appellant filed an appeal before the Bar Council of India. The complainant before the Bar Council of West Bengal was not satisfied by the aforesaid punishment to the Appellant and hence he also filed a separate appeal before the Bar Council of India. Both those appeals had been heard and decided together by the Disciplinary Committee of the Bar Council of India. Appellant’s appeal before the Bar Council of India had been dismissed and the complainant’s appeal before the Bar council of India being No. 16 A/1997 was allowed and the Appellant’s licence for practice had been suspended for a period of five years with effect from 05.09.1999. The Appellant was also directed to pay costs of Rs. 20,000.00 (rupees twenty thousand only) to the complainant within three months in default the suspension to be continued for two years more. 5. The Appellant was also directed to pay costs of Rs. 20,000.00 (rupees twenty thousand only) to the complainant within three months in default the suspension to be continued for two years more. 5. The Appellant filed a Writ Petition in the High Court at Calcutta challenging the legality of the aforesaid order of punishment by the Bar Council of India and the said appeal being dismissed by the Single Judge of this High Court, the Appellant filed an appeal in the Division Bench of this High Court, which was also dismissed. The Appellant filed an S.L.P. in the Hon’ble Supreme Court, but did not get a favourable result. So, the aforesaid order of suspension of the Appellant remained in force. 6. It is now alleged by the Appellant that the Respondent No. 2 and 3 out of their personal malice against the Appellant furnished wrong information to the Ministry of Law and Justice, Government of India as well as, to other Departments of the Central Government, whose briefs, the Appellant was holding at that time and on the basis of such wrong information the Appellant’s engagement in different cases had been terminated and the Appellant’s empanelment had also been cancelled, resulting in professional loss of the Appellant to the tune of Rs. 22,00,000.00 (rupees twenty lakh only). It is further alleged by the Appellant that his professional fees for the works he has previously done, to the tune of Rs. 9,41,888.00 (rupees nine lakh forty-one thousand eight hundred eighty eight only) has not been also paid off by the Respondents. Alleging the aforesaid facts, the Appellant prayed for in the Suit decrees for the aforesaid amounts and other consequential reliefs as well. 7. The Respondents filed a joint written statement and contested the case. In their written statement the Respondents challenged the maintainability of the Suit on the ground of limitations and other grounds as well, and the Respondents disputed the Appellant’s claim on different grounds. 7. The Respondents filed a joint written statement and contested the case. In their written statement the Respondents challenged the maintainability of the Suit on the ground of limitations and other grounds as well, and the Respondents disputed the Appellant’s claim on different grounds. Besides, it was the specific case of the Respondents that the Appellant had been suspended by the Bar Council of India from practising in any Court and for such disqualification fresh engagement of the Appellant in any case of the Central Government had been stopped and the Appellant’s engagement in different cases earlier to suspension had also been withdrawn and in the process, the Respondents numbers 2 and 3 had nothing personal against the Appellant. So far as the payment of arrear fee-bills are concerned. It is the specific case of the Respondents that during the period of suspension and during the period after cancellation/withdrawal of his engagement, the Appellant had no right to appear before any Court of law either on behalf of Union of India or any of its departments and so, the Appellant is not entitled to any payment for work, if any, done by the Appellant on behalf of the Union of India. On the point, it is the further case of the Respondents that they have paid for all the valid bills submitted by the Appellant to them, and for such reasons the Suit should be dismissed. 8. The point to be decided in this appeal is whether or not, the dismissal of the Suit by the learned Trial Court is legally justified. 9. In the memorandum of appeal as many as XLIV grounds have been pleaded. But many of those grounds are simple repetitions. Some of the grounds taken up are misleading also. For an instance, in ground number XVI it is stated that the learned Trial Court has passed an order in the Suit directing the Respondents to file all relevant documents including the original fee-bills as well as their duplicates submitted before the Respondents, but subsequently learned Trial Court ignored its own order. But it is not found from any exhibited document that any such order has been ever passed by the learned Trial Court. 10. But it is not found from any exhibited document that any such order has been ever passed by the learned Trial Court. 10. It has been argued by the Appellant in person that the Respondents have avoided deposing on dock due to which he has been deprived of the opportunity to controvert the issues raised by the Respondents and that in spite of demand by the Appellant the Respondents have not filed any document including the fee-bills previously submitted by the Appellant before the different authorities including the Respondent numbers 2 and 3 which is not also permissible in law. It has been further argued by the Appellant that a huge number of documents has been filed none of which has been considered by the learned Trial Court and for such reasons and other reasons as well, the judgment of dismissal of the Suit is bad in law. 11. Learned Counsel for the Respondents has emphatically argued that the Suit is hopelessly barred by limitation. According to him, from Para 38 of the plaint it is found that the Appellant has claimed payment of his arrear fee-bills for the period between 1980 and 2003 and the present Suit for the of recovery of such unpaid bills has been filed in the year 2008 and as such the Suit is barred by limitation. His further contention was that according to the Appellant’s case, stated in the plaint (Para 13) the letter dated 25.07.2003 addressed by the Respondent numbers 2 and 3 to their higher authorities containing false information resulted in the illegal termination of the Appellant’s engagement in different Income Tax cases before the Hon’ble High court, at Calcutta, on 25.09.2003. The fact being so, the cause of action for damage due to alleged illegal termination of engagement of the Appellant arose either on 25.07.2003 or on 22.09.2003. The Suit had been filed in the year 2008 and hence the Suit is barred by limitation on such ground also. In reply, the Appellant argued that the Appellant had filed several Writ Petitions before the Hon’ble High Court prior to the filing of the present appeal and hence the period of limitation had been automatically extended till the date of disposal of the Writ Petitions in the Hon’ble High Court. 12. In reply, the Appellant argued that the Appellant had filed several Writ Petitions before the Hon’ble High Court prior to the filing of the present appeal and hence the period of limitation had been automatically extended till the date of disposal of the Writ Petitions in the Hon’ble High Court. 12. As discussed earlier, the Appellant claimed payment of his arrear fee-bills from the year 1980 up to the year 2003 (Para 38 of the plaint). So, the cause of action of such claim arose in the year 2003. Similarly, according to Para 13 of the plaint, the alleged malicious act on the part of the Respondent numbers 2 and 3 had been done on 25.07.2003 which ultimately resulted in the termination of the Appellant’s engagement in different cases on 22.09.2003. So, the limitation in respect of the claim starts from the year 2003. 13. In Para 62 of the plaint it is stated that the Respondents admitted the Appellant’s claim from time to time by different letters prior to the filing of the Suit and as such the period of limitation has to be calculated from the date of such admission. But during argument the Appellant could not show any exhibited document in which any of the Respondents admitted any of the claims of the Appellant. 14. It is true that prior to the filing of the present Suit the Appellant filed different Writ Petitions before the Hon’ble High Court at Calcutta which had all been dismissed. In those Writ Petitions the legality of the decisions of the Bar Council of West Bengal and Bar Council of India had been challenged only. However, in Writ Petition No. 17382 (W) of 2003 filed by the Appellant, the Appellant’s claim for payment of arrear fee-bills was involved. The said Writ Petition had been finally disposed on 07.03.2006. As the Appellant raised his claim of arrear fee-bills in the aforesaid Writ Petition, the Appellant is not legally permitted to raise the same claim, i.e., payment of arrear fee-bills in the present money Suit. Moreover, no extension of the period of limitation was granted in favour of the Appellant in the Writ Petition number 17382 (W) of 2003. As the Appellant raised his claim of arrear fee-bills in the aforesaid Writ Petition, the Appellant is not legally permitted to raise the same claim, i.e., payment of arrear fee-bills in the present money Suit. Moreover, no extension of the period of limitation was granted in favour of the Appellant in the Writ Petition number 17382 (W) of 2003. So, considering the Appellant’s claims from different angles we have no hesitation to hold that the Appellant’s Suit stands barred by limitations and the decision of the learned Trial Court on the point is correct in law. 15. It was the grievances expressed by the Appellant in person during hearing that neither Respondent numbers 2 nor 3 deposed in the case before the Trial Court and similarly the Respondents did not submit the documents lying in the custody of the Respondents in spite of demand by the Appellant in the Trial Court and for such reasons the Appellant has been seriously prejudiced. The Appellant relied on the point, a decision reported in Express Newspapers Pvt. Ltd and others versus Union of India and others reported in AIR 1986 Supreme Court 872. 16. In reply, learned Counsel for the Respondents argued that the Respondents have no legal liability to assist the Appellant in proving the Appellant’s case. So, the Appellant’s grievances on the point are not justified. 17. It is true that no witness has been examined on behalf of the Respondents in the Trial Court. But that does not mean that the Respondents have admitted any of the claims of the Appellant especially when the Respondents in their written statement have denied the material allegations in the plaint. So, the decision reported in Express Newspapers Pvt. Ltd and others versus Union of India and others reported in AIR 1986 Supreme Court 872 has no application in the present case. 18. It is a party’s own wisdom to decide whether he would be examining any witness or not and it is always a settled principle that the plaintiff has to prove his own case on his own strength and the weakness, if any, in the Defendant’s case does not automatically prove the Plaintiff’s case. 19. 18. It is a party’s own wisdom to decide whether he would be examining any witness or not and it is always a settled principle that the plaintiff has to prove his own case on his own strength and the weakness, if any, in the Defendant’s case does not automatically prove the Plaintiff’s case. 19. On perusal of the documents on record it is found that the Appellant had not called for any document, in particular, following the prescribed procedures in Civil Procedure Code in the matter and that the Appellant by an application under Section 151 Civil Procedure Code prayed for a direction upon the Respondents to produce all the relevant records in connection with the engagement of the Appellant in different cases in between 1994 to 2008. The said application by the Appellant had been disposed of by the learned Trial Court (order dated 27.04.2009) with a direction upon the Respondents to produce the documents, if any, which they wanted to rely upon. The Respondents themselves did not produce any document in terms of the aforesaid order. But it does not help the Appellant in any way. We, therefore, find no force in the aforesaid contentions of the Appellant. 20. Admittedly the disciplinary committee of the Bar Council of India by an order dated 05.09.1999 in appeal No. 16 A/1997 ordered the suspension of the license of the Appellant for a period of five years and also awarded costs for Rs. 20,000.00 (rupees twenty thousand only) against the Appellant to be paid to the complainant in that case within three months I.D. the suspension was to continue for two years more. The appeals against the said order of the disciplinary committee of the Bar Council of India having been dismissed, the order remained in force till the expiry of the period of such punishment. Respondent numbers 2 and 3 had communicated the aforesaid order to their higher authorities which ultimately resulted in removal of the Appellant from different panels of the Central Government as well as cancellation and withdrawal of existing engagement of the Appellant in some cases. During hearing the Appellant submitted that Bar Council of West Bengal had never suspended the Appellant and it was the Bar Council of India which had suspended the licence of the Appellant. During hearing the Appellant submitted that Bar Council of West Bengal had never suspended the Appellant and it was the Bar Council of India which had suspended the licence of the Appellant. But Respondent numbers 2 and 3 out of malice communicated to their higher authorities that the Appellant was suspended by the Bar Council of West Bengal. In fact, no evidence whatsoever have been produced by the Appellant to show that the Respondent numbers 2 and 3 had ever any personal grudge or malice against the Appellant. 21. It had been argued by the Appellant that the engagement of a Government Counsel cannot be terminated without any valid reason or without any opportunity of hearing to such a Government Counsel and the Appellant strongly relied on the point upon the decision of the Hon’ble Supreme Court in the case Kumari Shrilekha Vidyarthi etc., versus State of Utter Pradesh and others reported in AIR 1991 Supreme Court 537. In the aforesaid case, by a general order, the Government of State of Utter Pradesh terminated the appointments of all Government Counsels in all the Districts of Utter Pradesh with effect from 28.02.1990. The post of District Government Counsel can never be equated with the position and legal status of a Counsel empanelled to represent the State, generally appointed on case to case basis. So, the aforesaid decision has no application in this case. 22. Appellant argued that whenever malice or malafide is alleged against any public authority such an authority should come forward to admit or deny such allegation and no public authority should abuse or use any authority without good faith and in such cases the Court should scrutinise the allegations. The Appellant has cited on the point, the decisions reported in Express Newspapers Pvt. Ltd and others versus Union of India and others reported in AIR 1986 Supreme Court 872 and C.S. Rowjee versus The State of Andhra Pradesh and others reported in AIR 1964 Supreme Court 962 (V 51 C 124). As mentioned earlier, during the trial the Respondents in the written statement (Para 5, 8, 10, 11, 15, 17, 19, 20) clearly denied the allegation of their malice against the Appellant and abuse or misuse of the authority. Moreover, malice on the part of Respondent numbers 2 and 3 has not been proved also. So, the aforesaid decisions have no application in the present case. 23. Moreover, malice on the part of Respondent numbers 2 and 3 has not been proved also. So, the aforesaid decisions have no application in the present case. 23. The Appellant argued further that termination of his engagement as an Advocate for the Central Government and cancellation of his existing engagement in different cases has defeated his legitimate expectation and he has cited a decision reported in Food Corporation of India versus M/s Kamdhenu Cattlefeed Industries reported in (1993) 1 Supreme Court Cases 71. 24. Empanelment in the panel of the Government Counsel itself can not create any serious expectation for getting good numbers of briefs from different departments of the Government. That apart, after being heavily punished by the Bar Council of India, the Appellant should not have any expectation, at all, to get good number of cases from the departments of the Central Government, and the aforesaid judgment has no application in the present case. It should be noted here that the present Suit is a money Suit. So Article 14 or Article 16 of the Constitution of India has no application. 25. The Appellant has also relied upon an unreported decision in Beer Bikram Kumar Singh versus Datex-Ohmeda (India) Pvt. Ltd., dated 21.03.2014 of a Division Bench of this High Court in F.A. No. 44 of 2008. The case relates to a wrongful dismissal from employment. In the present case the Appellant was not an employee of the Respondents. So, the aforesaid case has no relevancy in the present case. 26. As discussed earlier, the licence of the Appellant had been suspended for five years with effect from 05.09.1999 and because of such punitive action the Appellant was excluded from some panels of the different departments of the Central Government. The Respondents also stopped allotting any case to the Appellant which was quite natural and within the discretion of the Respondents. Some of the cases previously allotted to the Appellant had been also withdrawn. None of such actions on the part of the Respondents can be termed as illegal. So, the Appellant’s claim of damages in the Suit is devoid of any basis. 27. It was a case of the Appellant that his fee-bills have not been paid off by the Respondents in spite of repeated demands and the Appellant has claimed for a decree for an amount of Rs. So, the Appellant’s claim of damages in the Suit is devoid of any basis. 27. It was a case of the Appellant that his fee-bills have not been paid off by the Respondents in spite of repeated demands and the Appellant has claimed for a decree for an amount of Rs. 9,41,888.00 (rupees nine lakh forty-one thousand eight hundred eighty eight only) on such account. 28. To claim payment of any arrear fee-bill it has to be proved firstly, that the Advocate raising such claim has been engaged in the case, secondly, that the Advocate appeared and conducted the case on the date fixed and thirdly, that the Advocate submitted the bill drawn up properly according to the rules. In the present case the Appellant has claimed decree for his arrear fee-bills for his works during the period in between 1980 to 2003 (Para 38). It should be mentioned here that the Appellant included his claim for fees during the period when he was legally barred to conduct any case before any Court. Moreover, the Appellant could not produce the aforesaid documents to prove his claims as Appellant himself admitted during his cross examination on 01.08.2012. Appellant during his cross examination on 21.08.2012 also admitted that he had no appointment letter in respect of the bills submitted by him. Appellant submitted that he had submitted his original bills as well as the duplicate bills to the Respondent numbers 2 and 3. So, he was unable to produce the bills or any other related documents before the Trial Court during the trial of the case. 29. The legitimate claim of the Appellant for payment of arrear fee-bills, if any, cannot be settled in absence of the specific documents referred to above and the learned Trial Court dismissed the Appellant’s claims for the want of such necessary documents. That apart, the Appellant raised the similar claim in the Writ Petition bearing No. 17382 (W) of 2003 which had been disposed of prior to the filing of the present Suit. So, the Appellant cannot raise the same claim by filing the present Suit. 30. That apart, the Appellant raised the similar claim in the Writ Petition bearing No. 17382 (W) of 2003 which had been disposed of prior to the filing of the present Suit. So, the Appellant cannot raise the same claim by filing the present Suit. 30. Last, but not the least, the Appellant during his evidence on oath repeatedly stated that he had never any grievance against the Respondent number 1, i. e., Union of India and that all his grievances were against the Respondent numbers 2 and 3 who were the Officers of the Respondent number 1. Respondent number 3 has already retired from the service as found. It has been mentioned earlier that the Appellant has failed to prove any personal malice of the Respondent numbers 2 and 3 against him. Whatever acts alleged to have been done by the Respondent numbers 2 or 3, have been done by them in discharge of their official duty and on behalf of the Respondent number 1. That being so, no decree for damage or payment can be passed against the Respondent numbers 2 and 3 in their personal capacity. 31. So, from what has been discussed above it is clear that dismissal of the Suit by the learned Trial Court is justified in law. We are, therefore, of the view that the appeal should be dismissed. Accordingly, the present appeal is dismissed on contest with costs. The judgment passed by the learned Civil Judge (Senior Division), 9th Court at Alipore, 24 Parganas (South) on 20.12.2012 in money Suit Number 31/2011 is hereby affirmed. 32. Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities.