1. This Complaint by Messrs Samir Ahsan Ullah, Tahir Salman Ullah and Mst. Hanifa Khullar (died on 3- 6-1996), residents of 90-Shershah Block, New Garden Town, Lahore against Mr. J.V. Gardner, Advocate Supreme Court of Pakistan, resident of 4-A Mozang Road, Lahore, was processed by the Disciplinary Committee of the Pakistan Bar Council and finding the same fit for reference vide its order dated 17-2-1994 was referred under section 41(4) of the Legal Practitioners and Bar Councils Act, 1973 for decision to this Tribunal.
2. 2.The Complainants in their complaint dated 13-5-1993 alleged that they engaged the respondent/Advocate to institute a case for probate proceedings regarding the will in their favour executed by late Jagdesh Rai Kullar, during his life time on 15-3-1988, bequeathing valuable property measuring 15 Marlas and 200 sq.feet in Chowk Empress/Nicholsan Road, Lahore; that the respondent/Advocate received a sum of Rs,18,000 as court-fee and in addition he obtained Rs,7,000 towards his professional charges; that he filed the suit but derelicted in appearance as a result of which the case was dismissed for non-prosecution but instead of informing them accordingly, he continued stating that the same was pending as the Judge was not aware as to how the probate was to be prepared. However, the complainants came to know later that the suit had been dismissed in default. In consequence of such professional misconduct, the complainants claim to have been deprived of the valuable property worth Rs,50,00,000. The complainants further alleged that another suit was filed by Shamsher Ullah etc. on 2-12-1991 against them claiming that Mr. Jagdesh Rai Khullar, the testator had revoked the earlier will on 28-3-1991 and instead bequethed 1/3rd of the very property in their favour leaving 2/3rd for his wife Hanifa Khullar but could not get the same registered before his death which occurred on 28-5-1991. The suit was withdrawn with permission to file a fresh one. A revision petition was filed by the complainants through the respondent/Advocate which was admitted to regular hearing but that too was dismissed for non-prosecution as the respondent/Advocate did not appear to pursue the same.
3. He identically kept telling the Complainants that the same was pending and had been adjourned by the Court which fact too subsequently came to their knowledge. The respondent/Advocate filed an application for restoration but strangely enough through his statement got the same also dismissed on 1-10-1992. Meanwhile, Shamsher Ullah etc., in terms of the permission granted, filed another Suit No,1079/1 dated 5-12-1991, with quite a different story from the one contained in the suit earlier withdrawn by them. the Complainants this time engaged Ch. Muhammad Aslam Sindhoo, Barrister-at-Law to defend the suit who also filed the written statement on 14-7-1992 challenging the averments and prayed for dismissal of the suit. However, the respondent/Advocate who had never been appointed as their counsel in this suit filed a forged power of attorney dated 14-9-1992 on their behalf and appeared in Court on 22-9-1992, although the date in the case was fixed as 29- 9-1992, and on the basis of collusive compromise application, conceded the suit which was accordingly decreed against the Complainants who have been dragged into another round of litigation by challenging the fraudulent decree under section 12(2), C.P.C. On such averments, the Complainants have sought punishment of the respondent/Advocate for professional misconduct and for the permanent cancellation of his licence to debar him to appear in any Court of Law. In support of these pleas, the Complainants have placed on record certified copies of relevant pleadings and orders sheets.
3. Mr. J.V. Gardner respondent/Advocate submitted three written replies dated 17-2-1994, 25-9- 1994 and 6-1-1998. In his first reply/statement, he alleged that the Complainant's claim to the property was absolutely wrong and basically void and having signed the will, an attesting legatee cannot get anything. It was added that the Complainants had filed an application under section 12(2), C.P.C. before the Civil Court where the respondent/Advocate would like to contest the same.
4. The other allegations were generally denied as having been falsely engineered. However, the averments in the Complaint relating to the illegal receipt of amount as court-fee and regarding the dereliction in appearance and in consequence dismissal of the suit for non-prosecution as well as dismissal in default of the revision petition and/or the unauthorised interjection into suit No,1079/1 titled Shamsher Ullah etc. v. Hanifan Khullar etc. by the respondent/Advocate and his appearance under fake power of attorney as well as the compromise decree on the accelerated date i,e, 22-9-1992 were neither adverted to nor specifically denied. The second written reply/statement by the respondent/Advocate dated 25-9-1994 is equally evasive to the main allegations levelled by the Complainants. Therein too, the respondent/Advocate has negatively reacted to the claim of the Complainants over the property which devolved statedly under the will, the enforcement of which was sought through the suit. It is strange that the respondent/Advocate has chosen to level allegations to discredit the claim of the Complainants under whose instructions he had originally filed the suit wherein the merits of the claim were highlighted and decree was accordingly sought.
5. 4.We had, however, furnished last opportunity to the respondent/Advocate to file parawise comments/reply of the Complaint as requested by him. Even such a written statement dated 6-1- 1998 is primarily directed against the claim of the complainants arising out of the will which was sought to be enforced through the suit and by initiating other proceedings for which the respondent/Advocate had been initially engaged. The main allegations relating to professional misconduct and other misconduct again remained unanswered. The plea of the complainants that in such eventuality the factual assertions by them having not been denied would stand admitted and established assumes importance.
6. 5.Mr. Samir Ahsan Ullah, one of the Complainants presented his case in person and relied on the documents placed on record, which have remained unrebutted. Mr. J.V. Gardner, respondent/Advocate also did not produce any oral evidence. He even admitted to have filed the petition under section 269(1) of the Successions Act, 1925 against the Complainants. From the perusal of the documents on record, the picture of the conduct which clearly emerges is that respondent/Advocate on being engaged as an Advocate/counsel filed on behalf of Complainants, probate proceedings on the basis of a will by the late Jagdesh Rai Khullar in favour of his wife Hanifa Khullar, Samir Ahsan Ullah, his brother Tahir Salt= Ullah statedly executed on 15-3-1988, before the District Judge, Lahore on 21-3-1988. The case was entrusted to the Additional District Judge, Lahore where proceedings continued till 28-4-1992 on which date nobody appeared despite repeated calls and the case was dismissed at 1-15 p.m. Thereafter, an application for restoration appears to have been moved and the same came up for adjudication before the Additional District Judge, Lahore on different dates when ultimately on 1-10-1992, the respondent/Advocate gave a statement opting to withdraw the application which was accordingly dismissed. Shamsher Ullah and 7 others also filed a suit challenging the will in favour of the complainant party, alleging that the same had been revoked by the testator and 1/3rd of the property has been given to them through the substituted will dated 28-3-1991 which however, could not be registered as Jagdish Rai Kullar meanwhile died on 28-5-1991. The learned Civil Judge allowing the application of Shamsher Ullah etc., plaintiffs vide his order dated 10-11-1991 allowed withdrawal of the suit permitting them to re-file the same. This order was challenged by the complainants though the respondent/Advocate which was admitted by the learned Additional District Judge, Lahore vide order dated 14-11-1991 and notice was issued to the respondents therein and record was summoned. Again the respondent/Advocate defaulted in appearance on the date fixed i,e, 6-1-1992 and the order sheet reflects that the case was called repeatedly but none appeared and finally it was dismissed at 3.55 p.m. Shamsher Ullah etc. under the permission so granted meanwhile re-filed the suit and on being served, the complainants engaged Mr. Muhammad Aslam Sindhoo, Barrister-at-Law who submitted written statement dated 14-7-1992 vehemently controverting the claim in the plaint and sought its dismissal. The suit was fixed before the learned Civil Judge 1st Class, Lahore on 29-9-1992. However, the respondent/Advocate strangely enough interjected with his power of attorney dated 14-9-1992 on behalf of the complainants, defendants in the suit. Without reference to any provision of law, an undated single. page typed application was moved on behalf of the plaintiffs which is signed by the respondent/Advocate on behalf of the complainants herein and defendants Nos.1 to 3 in the said suit which reads as follows:-- "In the Court of Mr. Arshad Iqbal, Civil Judge, 1st Class, Lahore. Shamsherullah etc. v. Hanifa Khullar etc. Suit for the grant of decree for declaration and delivery of possession of the suit property as a consequential relief.
7. Respectfully sheweth: That the above-titled suit is pending in this Court and the next date of hearing is 29-9-1992.
8. 2.That the parties have compromised and it has been agreed between the parties that the decree as prayed may be passed in favour of the plaintiffs against the defendants Nos.1 to 3 leaving the parties to bear their own cost.
9. 3.That the learned counsel for the defendants Nos.1 to 3 is present in Court. He has no objection to give statement in this behalf in Court today.
10. It is, therefore, requested that the statement of the learned counsel for the defendants Nos.1 to 3 may kindly be recorded and the case decided accordingly.
11. Sd/ J.V. GardnerPlaintiffs ( Defendants Nos.1-3Sd/ Jafarullah through through counsel)Sd/ Counsel"
6. On the basis of the application, the Ahalmad in his report dated 22-9-1992 has written that the suit is fixed for 29-9-1992. Thereafter, it appears that the file of the case was accordingly requisitioned and on the concessional statement of the respondent/Advocate who as evidenced from the very application was present in Court, the suit of Shamsherullah etc. was decreed as against the complainants/defendants therein. The complainants through their counsel appeared to defend the suit on 29-9-1992 when they found the same not listed and on further probe came to know that it had been got fraudulently decreed against them by the respondent/Advocate. They consequently challenged the decree dated 22-9-1992 by resort to proceedings under section 12(2), C.P.C. wherein too strange things have been happening. The record shows that the respondent/Advocate firstly moved an application on behalf of Safdar M. Joseph for his impleadment as party on 4-7-1993. This was, however, dismissed by the learned trial Court.
12. Thereafter, he moved another application dated 20-3-1994, for his own impleadment as a party to the proceedings. This application was also rejected by the learned Civil Judge vide order dated 20- 4-1994. Then the respondent/Advocate himself filed a suit against the Complainants arraying them as defendants seeking protection of the very property from devolving upon them. This petition under section 269(1) of the Indian Succession Act was dismissed by the learned District Judge, Lahore vide his judgment dated 22-10-1995. There is another litigation also relating to the same property instituted by Khalid Mahmood against the Complainants wherein a decree for specific performance and permanent injunction is being sought on the strength of some sale agreement by Jagdesh Rai Kliullar, the deceased husband of Hanifan Khullar, one of the Complainants (since died) and it is claimed that such a valuable property had been sold to the said plaintiff for Rs,10,00,000 vide unregistered sale agreement dated 7-7-1990 and half of the amount had already been paid and that subject to the payment of Rs,5,00,000 the suit be decreed. It appears that the property within heart of the cosmopolitan city of Lahore being extremely costly, all out-attempts are being made to grab the same.
7. The facts and circumstances aforereferred unambiguously prove that the respondent/Advocate instead of faithfully performing his professional duty towards his clients i,e,, the Complainants, in the first instance filed the probate proceedings but absented and the suit was dismissed on 28-4- 1992 for non-prosecution. Thereafte'r, he moved an application for its restoration and appeared to state that he did not want to pursue the same and got it dismissed on 1-10-1992. He, thereafter, was engaged to file an appeal against the order of the Civil Judge dated 10-11-1991 passed in the suit of Shamsher Ullah etc., against the Complainants and once again did not appear on the 6th of January, 1992 in result whereto the same was dismissed by the Additional District Judge. Thereafter, in the suit of Shamsher Ullah etc. against the Complainants, he was not engaged as a lawyer and even though Mr. Muhammad Aslam Sindhoo, Bar-at-Law had filed the written statement vehemently opposing the suit, the respondent/Advocate unauthorisedly signed the application moved by Shamsher Ullah etc. and voluntarily appeared and got the suit decreed against the complainants on 22-9-1992 by getting date accelerated from 29-9-1992 for which the hearing of the case had already been fixed. In the application moved under section 12(2), C.P.C. by the complainants, he tried to interject Safdar M. Joseph as party by becoming his counsel and when the application failed on 22-9-1993, he came up with his own application dated 20-3-1994 for being impleaded as party which too was rejected by the learned Civil Judge on 20-4-1994. He thereafter, filed a petition under section 269(1) of the Indian Succession Act in his own right regarding the same property against the Complainants and which too was dismissed by the learned District Judge vide his judgment dated 22-10-1995. It is highly unconscionable on the part of {{PAGE CUT IN BOOK}} -oondent/Advocate, who was to plead and defend the cause of his clients, to tun.them and to institute proceedings personally in his own name in respect ofand property for which he was professionally engaged by them and thereby let loos,-mmunition in his arsenal to defeat their cause. There cannot be a graver cas,..--t by an Advocate.
13. 8.The question is what punishment--tate in the circumstances for the misconduct committed by the-,tp.
14. Section 41 of the Legal Practitioners and Bar Councils Act, 1973 prim {{PAGE CUT IN BOOK}} an advocate may be reprimanded, suspended or removed from practice if he is found guilty of "professional misconduct" or "other misconduct". The terms "professional misconduct" or "other misconduct" have not been defined in the statute. Section 55 of the Legal and Bar Councils Act, however, provides that the Pakistan Bar Council may, by notification in the official - Gazette make rules to provide for the standards of professional conduct and etiquette to be observed by Advocates. The Pakistan Bar Council in its Rules framed the canons of professional conduct and etiquettes of Advocates. Relevant canons are reproduced for ready reference:-- "134. It is the duty of every Advocate to uphold at all times the dignity and high standing of his profession, as well as his own dignity and high standing as a member thereof."
15. "146. An Advocate shalt not accept employment advise to a client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client provided that an Advocate, who has not been formally engaged by a person and accepted a retainer nor received any fees for such engagement is not precluded from accepting employment adverse to the interest of such person."
16. "148. An Advocate shall not represent conflicting interests."
17. 9.The Profession of law is known for its well-known noble traditions and for its high standard of morality to be practised and followed by its members. The profession of a lawyer is regulated by principles of sound morality and high mindedness and at all times has been regarded as one of great honour and usefulness; but to render such profession either honourable or useful, it is very obvious that a most scrupulous fidelity must be forever observed by the lawyers towards their clients so that they shall never betray or take advantage either in word or deed of anything that has come to their knowledge by means of any communication from their client, or from papers or documents of the client put into their hands. In the case of Galbraith v. Elder 8 Watts (Pa.) 81, 94 (1839) it was observed as under:-- "In order that the interests of the client, may, in this respect, be protected and made secure, good policy would seem to require, as well as every principle of honour and fair dealing, that the counsel or attorney should not be permitted to do anything that would tend to prejudice the interest of his client, or occasion a loss to him in reference to anything upon which he was consulted.
18. With a view, therefore, to remove all temptation, and to prevent everything of the kind from being done, principles of expediency, as well as those of justice, require that the counsel or attorney shall derive no advantage whatever from such acts, when done by him, as may operate to the prejudice of, or occasion a loss to the client; and that all the advantage which otherwise would have arisen therefrom to the counsel, shall ensure to the benefit of the client."
19. The principle of honour and fair dealing noted in the above observations, set standard of conduct of a lawyer in his dealings with the client and any violation of these solitary principles are usually termed as "other misconduct".
20. 10.In addition to the "other misconduct" is the "professional misconduct" which may arise out of certain obligation towards the client when he accepts the brief. The Advocate, when accepts a Brief, becomes subject to certain obligations towards his client in respect of the suit or proceedings entrusted to his care and pending in the Court and he cannot absent himself from the Court on the hearing without first obtaining his client's consent. If he absents otherwise, he would be guilty of professional misconduct. The appointment of an Advocate continues till determined with the leave of the Court. ' So abandonment of his interest after receipt of a fee and in some cases even if the fee or any portion thereof remains unpaid, failure to protect right of client or by withdrawing a motion for a new trial without knowledge or the authority of the client have been held valid grounds for disciplinary action.
21. 11.In the circumstances, the respondent/Advocate is not only guilty of "professional misconduct" on account of his failure to appear in the matters, abandonment/withdrawal of the cases without authorisation, he is also guilty of "other misconduct" as he instituted the proceedings against his clients in respect of that very property for which he was engaged to protect the interest and rights in the property of the complainants. We must record that the respondent/Advocate was not even conscious of the gravity of his misconduct as he persisted that he had the right to lodge the proceedings against his clients in order to save the property from falling it into unauthorised hands. If that was so, he should not have earlier accepted the Brief, received the fee and instituted the proceedings on behalf of the complainants. The respondent/Advocate is guilty of "professional misconduct" as well as of "other misconduct" as noted above and in these circumstances he has lost the right to remain in the profession and to continue with the legal practice.
22. 12.For the foregoing reasons, we have no option but to remove Mr. J.V. Gardner Advocate/respondent from practice for the rest of his life. He shall be debarred from practising in any Court or before any Tribunal authority in Pakistan under section 43(b) of the Legal Practitioners and Bar Councils E Act, 1973. Necessary effect shall be given to the punishment by making entries thereof in the rolls of Advocates against the name of the respondent and by informing all concerned.
23. 13.We had reserved the order on 14-3-1998. Let the parties be informed accordingly.