Shree. ( Advocate.) 16 November 2009

Lawyer fined Rs.25,000 for filing false affidavits

Lawyer fined Rs.25,000 for filing false affidavits:

IN THE HIGH COURT OF DELHI AT NEW DELHI

CS(OS) 465/2007

SAVITA KHATRI ….. Plaintiff
Through: Mr. G.S. Khatri, Adv.

Versus

RAI SINGH TEWETHIA and ORS. ….. Defendants
Through: Mr. Rajender K. Panigrahi, Adv.

CORAM: JUSTICE SHIV NARAYAN DHINGRA

O R D E R – 20.10.2009 – IA No.13431/09

This application has been made under order 9 Rule 7 read with Section 151 CPC on behalf of the defendant for recalling the order dated 15th July, 2009 when the defendant and his counsel did not appear in the Court and the defendant was proceeded ex parte. The application is supported by affidavit of defendant no. 1 and affidavit of his counsel R.K.Panigrahi. In the application, it is stated by the defendant that counsel for the defendant in his diary noted a wrong date. Instead of 15th July, 2009, he noted 15th October, 2009 and therefore the counsel and the defendant could not appear before the Court on 15th July, 2009. Counsel visited the High Court website on 11th October, 2009 and then he found that next date in the case was 14th October, 2009 and case was also fixed on 15th July, 2009. It is stated that defendant has been bonafidely prosecuting and conducting the suit and non-appearance of the defendant and his counsel was due to above reason.

Counsel for the plaintiff has filed a reply to the application in the Court itself. Before filing reply to the application, counsel for the plaintiff moved an application under RTI to the Registry of High Court and sought information if any request for issuance of gate pass to the defendant for 15.7.09 was received by the Registry from his counsel. Under RTI, the information was given to the plaintiff that such a request was received from defendant’s counsel for issuance of gate pass for 15.7.09 to the defendant by the Registry and a copy of the request was also furnished to the applicant/plaintiff . Along with the reply to defendant?s application, the plaintiff has filed the RTI information received and the copy of request forwarded by defendant?s counsel for issuance of gate pass to the defendant for 15.7.09. When the defendant?s counsel was confronted with this information and the copy of request made by him for issuance of gate pass to his client on 15.7.09 he said he was sorry for this.

It is obvious that the defendant’s counsel deliberately, with the intention of misleading the Court and playing fraud with the Court, knowing that his client had appeared in the Court and watched the proceedings and he himself had noted right date in his diary, made this false application to the Court accompanied by his own false affidavit and false affidavit of his
client/defendant no.1.

I consider that conduct of counsel for the defendant is unbecoming of an Advocate. It only looks that the Advocate has lost sense of professional ethics. He mislead the litigant and even forged his dairy to show to the Court that he had noted wrong date. He filed a false affidavit of himself and his client. He is liable to be prosecuted under Sections 182, 192, 196, 199 and 200 IPC. A complaint under Section 195 Cr.PC is liable to be filed against Advocate Rajender Kumar Panigrahi and defendant and both are liable to be prosecuted for above offences. Registrar General of High Court is directed to file a complaint against the Advocate as well as against defendant no.1 under Section 195 Cr.PC for filing false affidavit in the Court and making false averments and allegations, deliberately, in the Court. A letter be also written by Registrar
General to the Bar Council for considering cancellation of license of Advocate Rajender Kumar Panigrahi as he is not fit to be an Advocate. The application under Section 9 Rule 7 CPC is hereby dismissed with costs of Rs.25,000/- on Advocate Rajender Kumar Panigrahi. The costs shall be paid by the Advocate himself because as it is the Advocate who advised his
client wrongly and asked him to file a false affidavit. In case cost is not paid, the same shall be recovered by attachment of the assets of the Advocate.

CS(OS) 465/2007

The matter is listed for ex parte evidence on 23rd October, 2009 before the Joint Registrar and ex parte evidence be recorded on that date.

SHIV NARAYAN DHINGRA,J
OCTOBER 20, 2009

Reply Follow

22 Replies

Kiran Kumar (Lawyer) 16 November 2009

optimum use of RTI....and a good lesson for lawyers as well.

one advice for lawyers, never give your personal affidavit in any case.

(Guest)

A good lesson to the Lawyers who try to file false affidavits in the court and persons who give false affidavits to the courts.

Anil Agrawal (Retired) 18 November 2009

The advocate had no choice but to give his affidavit when confronted by the Court.

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108) 18 November 2009

EVERYTHING APART,

ATLEAST ONE CAN CONCLUDE & APPRECIATE THAT THE COUNSEL SHOWED "LOYALTY" towards his client, even though it meant paying a heavy price for it (paid fine of 25000/-, licence cancelled and good-will down the drain)

Nothing to dispute in the above, in light of the fact, that such loyalty will be rarely found.

Keep Smiling .... Hemant Agarwal

Thyagarajan (Property management) 19 November 2009

Dear Members,

In a case in a Consumer Forum a builder had affirmed that he took layout plan approval of plots for construction before embarking on calling investors.

The affidavit was signed before an advocate who filed the same in form of a counter. The counter being of enormous content and volume of papers one of the investor who had lodged the case had overlooked the line that ‘he took layout plan approval’. Later the investor came to realize neither the layout plan/building plan was approved. When brought to notice, the builder filed a reply, this time through a different councilor that he never said the plans were approved.

A separate case was booked by the investor that the builder had made perjury under sec 340 crpc before the consumer forum, citing section 195 crpc. .

To evade trail the builder tendered apology in form of a petition, this time again through another advocate. The perjury case is being investigated by a Magistrae.

The investor is planning to move the bar association to fix the advocates second and third.

Regards

R.Thyagarajan

Anil Agrawal (Retired) 19 November 2009

Planning? By now he should have filed it. This is the problem with us. We spend our life time in planning only, discussion and correspondence.

bhupender sharma (head) 20 November 2009

The court should not misuse the power itself if it find any irregularity then the same ought to have been sent for appropriate action before the Bar Council of Delhi.

Anil Agrawal (Retired) 20 November 2009

It is a criminal act on the part of the lawyer. Where is question of ONLY sending to Bar Council?

1 Like

Thyagarajan (Property management) 20 November 2009

MR. Agarwal,

It is common that a petitioner says he solemly affirms statement is made by him and the lawer only sings the statement is signed before him. In this criminal act is done by the petitioner instigated by the lawer . he lawyer can not say the petitioner made it under freewill .

Thus I agree with you sending to bar councile only was not sufficiant and booking advocate under 195 crpc is justified.

regards,

Anil Agrawal (Retired) 21 November 2009

Neither the judge nor he advocates are Gods. The sooner we disabuse our minds from this notion, the better.

Adinath@Avinash Patil (advocate) 21 November 2009

GOOD LESSION FOR ADVOCATES, ADVOCATE SHOULD NOT FILE PERSONAL AFFIDAVIT. BUT THIS IS NOT SERIOUS OFFENCE, SEE THE ADVOCATE'S LOYALITY TO HIS CLIENT. IT IS THE DUTY OF CLIENT'S TO TAKE DATES OF HIS OWN DATE FOR HIS CASE. ADOVOCATE IS NOT GOD.

Anil Agrawal (Retired) 21 November 2009

Even if the client has sought and got exemption, he should get the date. What are the advocates for then? There is no loyalty to client?

Thyagarajan (Property management) 22 November 2009

Dear Members,

I happened to read a verdict in a case in State Consumer Forum Tamil Nadu where in, a lawyer again, was fined. The case is as below

Lawyer Fined For Deficiency in Service

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT

THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I

UNNUMBERED CMP. /2009 IN FASR.750/2007

[Against order in C.C.No.200/2006 on the file of the DCDRF, Coimbatore]

DATED THIS THE 2^nd DAY OF NOVEMBER 2009

R.P. Manoharan, |

27-C, Gayathri Complex, | Petitioner/Apellant/

Huzur Road, | Opposite Party

Coimbatore - 18. |

Vs.

State Bank of India (Commercial Branch), | Respondent/ Respondent/

rep. by its Manager, | Complainant

Tirupur. |

Counsel for the Petitioner/Appellant/O.P : M/s.V.Shankar,

HON'BLE M. THANIKACHALAM J, PRESIDENT

1. This unnumbered CMP has been filed by the opposite party in CC.220/2006 on the file of District Consumer Disputes Redressal Forum, Coimbatore to condone the delay of 691 days in restoring FASR.750/2007, which was dismissed as withdrawn on 03.10.2007.

2. After the filing of the application, the Registry felt that the petition is not maintainable and therefore, the same was placed before us to decide the maintainable.

3. Heard the Learned Counsel Mr.V.Shankar, Counsel for the Petitioner.

4. The respondent herein as complainant filed a case before the District Consumer Disputes Redressal Forum, Coimbatore in CC.220/2006, complaining certain deficiencies against the opposite party who is a practicing advocate as if he has not filed the case which was entrusted to him and also failed to refund the fees, that the cheques issued by him were not honoured and he has also not honoured the same despite notice etc., thereby claiming a sum of Rs.1 lakh as compensation by way of damages towards loss, mental agony etc.,

5. Before the lower Forum, the opposite party has not appeared and contested the case, resulting an exparte order passed on merits, relying upon number of documents. The trial Forum analyzing the documents, going through the affidavit of the complainant, felt unhesitatingly that opposite party had committed deficiency in service and he has also committed breach of trust. In this view, a direction cam to be issued on 03.05.2007 for payment a sum of Rs.1 lakh with interest at the rate of 12% from 20.11.2002, in addition to, cost of Rs.3,000/-.

6. The opposite party aggrieved by the said order, filed a docket before this Commission, as if appeal has been filed along with order copy of the lower Forum. An Advocate who suffered an adverse order, knew the procedure and despite the same he has not filed the appeal in the sense stating the grounds of the appeal complying the provision of the Act also furnishing copy etc., In view of the admitted position, grounds on appeal has not been filed, the Registry returned the papers on 17.07.2003, stating "how appeal is maintainable without grounds", granting 15 days for compliance. The said paper was represented without compliance, making an endorsement, as if complied which reads "complied and represented". In view of the fact, the return is also not properly complied, the Registry placed the paper before the Commission for appropriate order on 17.08.2007. This Commission instead rejecting the paper, said to be an appeal, adjourned the case till 3.10.2007 on which date an endorsement was made by the Counsel on record which reads "Appeal may be rejected as matter has been settled out of Court". Based upon the endorsement, this Commission passed an order which reads "Endorsement made. APSR is dismissed as settled out of Court. No cost". Since appeal itself has not been taken on file, no duty is caused with the Commission to dismiss the APSR as settled out of Court and if at all we should have rejected the FASR in limini, be it as if may.

7. After 691 days, this unnumbered CMP has been filed to condone the delay in filing a petition to restore the FASR which was dismissed on 03.10.2007, since the appeal itself was not filed in proper form, question of restoring that does not arise for consideration and this being the position, question of condoning the delay also will not arise for consideration. Whether these petitions are maintainable or not. On these grounds alone, petition is liable to be rejected. In view of the above position, the matter was placed before us to decide the maintainability.

8. The learned counsel appearing for the petitioner urged before us that this Commission has inherent power to set aside or review the order passed by it since this Commission along had dismissed the FASR and he also invited our attention to a decision reported in "III (2000) CPJ 418", the State Commission, Orissa, has taken the view that the Commission should have inherent power to pass such orders for ends of justice and to prevent the abuse of the process of the Court and such a power is inherent with the constitution of the Court or Tribunal etc., By going through the above decision, as well as the provisions of the Consumer Protection Act, where we find no provision for review or vesting any inherent power, we are unable to concur and follow with a view expressed by the State Commission in the above rulings. Under Section 22 of the Consume Protection Act, only the National Commission is vested with a power to review any order made by it, that too, when there is an error apparent on the fact of record. Such a power is also not vested with the State Commission. If the review sought is only for limited extent of correcting an arithmetical mistake or grammatical mistake or clerical mistake, this Commission can exercise its power to rectify the same and not otherwise as claimed in this case.

9. In "New India Assurance Co. Ltd., Vs. Smt.Sukanti Paikray" reported in "2005 (2) CPR 138 (NC)", the National Commission took the view "State Commission has not been provided with powers to review its own orders passed on merit". When the (statue) is silent about the inherent power, question of exercising inherent, that too, under Section 151 CPC which is not made applicable to the State Commission, is not at all possible. Therefore, the submission of the learned counsel for the petitioner that this Forum has got inherent power to review the order is unacceptable and same is liable to be rejected.

10. On merit also the petition deserves to be rejected, that too, awarding cost which we refrain, considering the fairness of learned counsel appearing before us. A practicing Advocate committed deficiency in service when a matter was entrusted by the complainant namely filing of case, paying fees, when questioned, it seems, he had issued cheques, bounced not honoured. Having received the notice, he remained silent, thereby, suffered an award. He attempted to question the same before this Commission an audacity not even filing grounds of appeal, when questioned by the Registry, sort the matter and placed before this Commission for maintainability. When the case was coming for maintainability, on his own, the opposite party reported as if matter has been settled between themselves, thereby, made an endorsement through the counsel which cannot disown and fact he is not disowning also. When the matter is final once for all settled and the case has been dismissed, question of setting aside that order by this Commission is beyond its power and if at all the opposite party aggrieved by the said order dated 03.10.2007, he ought to have approached the higher forum which is failed, thus an Advocate by profession, prima facie, having committed misconduct, once again knocking the doors of this Commission to set aside the order dated 03.10.2007, that too, after a delay of 691 days, if we show any indulgence to this kind of opposite party, the very purpose of the act would be frustrated and the proceedings will be mockring and in this view also the unnumbered CMP should be rejected as not maintainable.

11. In the result, the unnumbered CMP is rejected.

PON GUNASEKARAN M. THANIKACHALAM

MEMBER-I PRESIDENT

Is there any way the lawyer can come out clean in the matter?

VIMAL MEHTA (NA) 10 July 2013

DEAR SIR,

I AGREE LICENCE OF ADVOCATE SHOULD BE SNATCHED IMMDDTLY. BECAUSE THE HONBLE COUT AND CITIZENS TRUST THEM.

IN MY CASE IN THE LOWER COURT LAWYER FILED FALSE AFFIDAVITS AND AMENDMENT LATER AND HIS CLIENT MADE SEVERAL FALSE AND CONTRADICTORY STATEMENTS. THE LOWER COURT MENTIONED IN ITS AWARD THE VERSIONS OF OPPOSITE PARTY ARE FALISFIED. NOW THE CASE IS IN DH COURT. THE LAWYER IS ALSO RESPONSIBLE FOR VIOLATING ADVOCATE ACT 1961 49 C OF ETTIQUETES. 22 YEARS NO JUSTICE. ADVOCATE IS DRAGGING ON ISSUE ON ONE PRETEXT OR THE OTHER.

WHAT I CAN DO UNDER THE LAW PLS ADVISE.

THS