Background Facts

The appellants were Advocates practising before the Gauhati High Court. They were approached by another fellow Advocate to appear in a case. The petition was filed by daughter of a former Deputy Superintendent of Police. She sought a Court-monitored probe into the death of her father. The fellow Advocate was reluctant to sign the Vakalatnama due to a conflict of interest. Therefore, the appellants accepted the request in good faith.

Before signing the Vakalatnama, the Advocates satisfied themselves about the correctness of the issue and the existence of the daughter that she was not a fictitious character. The daughter was physically present in the High Court campus at the time of signing of Vakalatnama. Also the daughter was accompanied by another client, who had been in touch with the fellow Advocate for a long number of years.

Further, the daughter was identified before the Oath Commissioner by the registered Clerk. However, the writ petition remained pending for about six years.

During the pendency of the petition, the respondents Nos.6, 7 and 8, who were suspected of causing the disappearance and death of the Deputy Superintendent of Police approached the court. It was alleged by them before the Court that the daughter was a fictitious person. A CID enquiry was initiated in which it was reported that the daughter could not be located at her given address.

The Single Judge accepted the CID report without any objection. It was held by the Single Judge that the petition had been filed by a fictitious person. Therefore, the writ petition was dismissed and a fine of ₹50,000 was imposed on each of the Advocates (appellants). Further, the Bar Council was directed to initiate disciplinary proceedings against them.

Therefore, advocates started making preparations to challenge the judgment passed by the Single Judge. In meantime, they came across a copy of Caveat No.84/2016 filed by the respondent No.7. The Caveat was filed before the Court of Munsiff No.1 against the daughter with respect to a property dispute. Therefore, a review petition was filed by the Advocates on this ground.

However, the review petition was dismissed. It was held that the claim that the daughter was not a fictitious person and actually existed was only inferential. Therefore, it did not require the Court to reconsider the earlier judgment, which had found the daughter to be non-existent.

Aggrieved by the same, the Advocates challenged the judgment of the Single Judge and the order passed in the review petition before the Division Bench of the Gauhati High Court.

It was argued by the Advocates that the CID report stating that the daughter could not be found at her given address did not actually mean that she did not exist as a person. The registered Clerk of the Advocate had identified her in the High Court campus. The Clerk had made a statement before the CID that he had seen and had identified her in 2016.

It was further argued that misleading statement was made by the respondent Nos.6, 7 and 8 that the daughter was a fictitious lady when the respondent No.7 had actually filed a caveat petition against her before the Court of Munsiff No.1, in a property dispute case.

It was lastly submitted that Advocates cannot be made guarantors for the physical whereabouts of a petitioner after filing and arguing the writ petition.

Findings and Observations of the Court

It was observed by the Division Bench that the appellant-Advocates should not have been held responsible for the non-appearance of the daughter. It was found by the Bench that the writ petition was rightly dismissed as the petitioner-daughter could not be found, but the cost imposed on the Advocates as professionals was not justified in the facts and circumstances of the case.

It was further observed that referring the case to the Bar Council would also amount to harsh treatment of the Advocates, who had been practising before the Court for a considerable period.

Further, the Advocates were cautioned to be more careful in accepting Vakalatnama on the request of a friend, by probing into the correctness of the writ petition. Further, it was directed that they should satisfy themselves that the petitioner is not misrepresenting as a litigant.

Hence, the dismissal of the writ petition by Single Judge was upheld by the Division Bench. However, the fine imposed on the Advocates and the referral to the Bar Council was set aside by the Division Bench.

With the aforesaid observations, the order passed by the Single Judge in Review Petition was also set aside by the Division Bench. Consequently, the appeal filed by the Advocates was allowed by the Division Bench.

Counsel for the Appellants : H. Singh Kalsi

Counsel for the Respondents : A. Mena, Advocate