M/S. ADVANTA INDIA LTD. versus B. N. SHIVANNA on 21 February 2018

SUPREME COURT REPORTS

[2018] 2 S.C.R.

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M/S. ADVANTA INDIA LTD.

v.

B. N. SHIVANNA

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(Civil Appeal No. 11113 of 2016)

FEBRUARY 21, 2018

[A.K. SIKRI AND ASHOK BHUSHAN, JJ.]

CAdvocates Act, 1961– s.48AA – Bar Council of India (BCI) –Power of review – Exercise of – Complaint by appellant againstadvocate alleging commission of serious acts of professionalmisconduct with State Bar Council – Disciplinary Committee foundrespondent guilty of misconduct – Order by the Bar Council wherebyrespondent debarred from practice for life and his name removedDfrom the rolls of the Bar Council – Appeal before BCI by respondent– Disciplinary Committee agreed with the finding, however reducedthe punishment – Respondent debarred for 18 months along withfine of Rs. 25,000/- – Review petition by respondent – Allowed bythe Bar Council directing fresh consideration of the matter – Onappeal, held: When the review power of the BCI is examined, inEview of the facts, revisiting the issue on merits again on the pretextthat the respondent was not granted proper opportunities to cross-examine PW-1 is clearly beyond review jurisdiction – Review powerof the Disciplinary Committee/BCI is not to be confined within thenarrow parameters laid down in s.114 and Or. XLVII r 1 CPC – AtFthe same time, the power also cannot be extended to the extent thatthe reviewing authority becomes appellate authority over its ownorder passed earlier – BCI reviewed its own finding of fact andoverturned the same on the same material which was producedearlier and going by the same arguments which were advancedearlier – BCI showed undue indulgence to the respondent byGallowing him to take advantage of his own wrong, in the guise ofexercising its review power – Party cannot take advantage of itsown wrong – More so, respondent has tarnished the image of anoble profession by indulging into cheating and fraud – Thus, theorder passed by the Disciplinary Committee of the BCI is set asideHand its earlier order is revived.

Allowing the appeal, the Court

HELD: 1.1 The BCI formed an opinion that in the absenceof an opportunity to cross-examine PW-1, the respondent wasdenied his valuable right to defend himself which infringed theprinciple of fair trial. At the same time, while allowing the reviewpetition on the said basis, instead of remanding the case back tothe Disciplinary Committee of the State Bar Council, the BCIhas withdrawn the case to itself on the ground that by virtue ofthe Section 36B of the Act, the jurisdiction of the DisciplinaryCommittee of the State Bar Council comes to an end on expiry ofthe period of one year. It ordered that further enquiry shall beconducted by the Disciplinary Committee of BCI from the stageit was as on June 19, 2005 and the Chairman, BCI may constituteDisciplinary Committee of the BCI in this behalf. [Para 12][822-H; 823-A-C]

1.2 The appellant had raised a preliminary issue questioningthe maintainability of the review petition, inter alia, on the groundthat scope of review jurisdiction was very limited. This objectionhas been turned down by the BCI with the remarks that reviewjurisdiction of the Disciplinary Committee of the Bar Councilunder the Act is wider than the review jurisdiction of a courtunder Section 114 CPC read with Rule 1, Order XLVII CPC.[Para 13][823-C-D]

1.3 The impugned order proceeded to hold that if a manifestwrong has been done, it is never too late to undo the wrong,since the factors that are placed on civil courts on their reviewpowers are absent in review powers of the DisciplinaryCommittee, in terms of Section 44 and Section 48AA of theAdvocate’s Act, 1961. There cannot be any doubt about the saidproposition stated by the BCI. However, its application on thefacts of the instant case is clearly unsustainable. BCI has, in fact,gone much beyond the scope of review powers, even when theseare liberally construed. [Paras 14-15][ 823-G-H; 824-A-B]

1.4 The said ground of not allowing the respondent tocross-examine PW-1 was not taken in the review petition for thefirst time. It was argued even before the Disciplinary Committee BC

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Aof the State Bar Council. The State Bar Council considered theargument and rejected the same after it found that the respondenthad intentionally adopted dilatory tactics. It specifically held thatcross-examination of the complainant was closed after givingadequate opportunities to the respondent. However, every time,when the case was fixed for cross-examination of PW-1, theBrespondent would send the proxy counsel with a medicalcertificate stating that he was unable to present himself. The StateBar Council even found discrepancies and inherent contradictionsin the medical certificates. [Para 16][824-C-E]

C1.5 Even in the appeal filed by the respondent before theBCI, he had raised this ground. After considering the same, inthe light of arguments of both sides and the material placed onthe record, the BCI specifically rejected this contention, findingno merit therein, in its order dated September 10, 2011 and alsoaffirmed the findings recorded by the State Bar Council thatDrespondent had committed a serious professional misconduct byrevisiting the matter as an appellate authority. [Para 17][825-A-B]

1.6 The issue as to whether there was any denial ofprinciples of natural justice or fair trial in closing the cross-Eexamination of PW-1 or whether this course of action was righton the part of the State Bar Council after giving sufficientopportunities to the respondent, was specifically dealt with bythe BCI and authoritatively rejected while deciding the appeal ofthe respondent. It arrived at a categorical and definite conclusionFthat the respondent was given sufficient opportunities to cross-examine the complainant and it is the respondent who was atfault in failing to avail the said opportunities as he was founddelaying the proceedings on one pretext or the other. It clearlyfollows that the BCI found fault with the respondent whoseattitude was non-participatory and he was avoiding attending theGhearings on false pretext. [Para 18][825-F-H]

1.7 When the review power of the BCI is examined, keepingin view the said factual matrix in mind, the necessary consequencewould be to hold that in such a situation revisiting the issue onHmerits again on the pretext that the respondent was not granted proper opportunities to cross-examine PW-1 is clearly beyondreview jurisdiction. No doubt, the review power of the DisciplinaryCommittee/BCI is not to be confined within the narrow parameterslaid down in Section 114 and Order 47 Rule 1, CPC. At the sametime, the power also cannot be extended to the extent that thereviewing authority becomes appellate authority over its ownorder passed earlier. The liberty taken by the BCI outstrips eventhe wider amplitude and greater discretion that is granted to theBar Council. It has reviewed its own finding of fact and overturnedthe same on the same material which was produced earlier andgoing by the same arguments which were advanced earlier. It isfound that the BCI has shown undue indulgence to the respondentby allowing him to take advantage of his own wrong, in the guiseof exercising its review power. It is a case of Nullus CommodumCapere Potest De Injuria Sua Propria meaning thereby a partycannot take advantage of its own wrong. [Paras 19-20][826-A-E]

Eureka Forbes Limited v. Allahabad Bank and Ors.(2010) 6 SCC 193 : [2010] 5 SCR 990 – referred to.

1.8 The respondent has tarnished the image of a nobleprofession by indulging into cheating and fraud. He duped theappellant by pretending that various criminal cases were filedagainst the appellant and there was inherent threat of arrest ofthe appellant therein. On the basis of this cooked up story offictitious cases, the respondent extracted huge amounts of moneyfrom the appellant by adopting illegal means. In the process, inorder to project semblance of those cases, the respondentfabricated number of documents. Ultimately, it was found that nosuch criminal cases were filed by the farmers against the appellant.The respondent stands convicted by the trial court in criminalproceedings. He had even the audacity of producing fabricatedcopy of the order of the High Court, for which the High Courtinitiated contempt proceedings against him and in those contemptpetitions, he was found guilty and sentenced to undergo 6 months’simple imprisonment along with fine of Rs. 2000/-. [Para 21][826-G-H; 827-A-C]

1.9 The impugned order dated July 11, 2015 passed by theDisciplinary Committee of the BCI is set aside. With setting aside AB

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Aof order dated July 11, 2015 passed by the Disciplinary Committeeof BCI, its earlier order dated September 10, 2011 stand revived.However, to the extent the said order reduces the punishmentthat was awarded to the respondent, same shall be subject to theoutcome of Civil Appeal No. 273 of 2012, in case the same isrevived by the appropriate Bench and it decides to hear thatBappeal on merits. [Paras 24-25][827-E-G]

O.N. Mohindroo v. District Judge, Delhi & Anr. (1971)3 SCC 5 : [1971] 2 SCR 11 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No 11113Dof 2016.

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From the Judgment and Order dated 11.07.2015 of the DisciplinaryCommittee of the Bar Council of India in Review Petition No. 7 of 2011in DC Appeal No.59 of 2005.

B.K. Sampath Kumar, Balaji Srinivasan, Ms. VaishnaviSubrahmanyam, Ms. Pratiksha Mishra, Abhishek Bharti, Aljo K. Joseph,Sayooj Mohandas M., Vishal Arun, Advs. for the appearing parties.

The Judgment of the Court was delivered by F

A. K. SIKRI, J. 1. An important question of law that needs tobe determined in this appeal pertains to the power of review with theDisciplinary Committee of the Bar Council of India (BCI). On a complaintfiled by the appellant against the respondent, who is an Advocate, allegingthe commission of serious acts of professional misconduct, with theGKarnataka State Bar Council, the complaint was referred to itsDisciplinary Committee. It examined the matter after giving dueopportunity to both the parties to lead their respective evidences andheld the respondent guilty of the charges of misconduct levelled againsthim. As a sequitur, the order dated July 31, 2005 was passed by the State Bar Council whereby the respondent was debarred from practicingfor life and his name was also removed from the rolls of the Bar Council.

2. Statutory appeal was preferred by the respondent before theBCI which disposed of the said appeal vide the Order dated September10, 2011. It reduced the punishment awarded to the respondent bydebarring him for a period of 18 months, along with fine of Rs.25,000/-.The respondent filed the review petition under Section 48AA of theAdvocates Act, 1961 seeking review of order dated September 10, 2011by the BCI. The Bar Council has allowed the review petition vide orderdated July 11, 2015 by setting aside the previous order and directingfresh consideration of the matter. It is this order passed in the reviewpetition which is impugned in these proceedings.

3. Having given the aforesaid introductory remarks, we may nowstate the fact of the matter in detail:

As per the complaint of the appellant company, it is engaged inthe research, production and distribution of seeds and hybrids such assunflowers, maize, cotton, rice, bajra and sorghum. The respondentherein has a long history with the appellant company who initially joinedthem as a Marketing Executive in 1998. However, he left that job aftera brief period and then returned in the capacity of Legal Counsel.According to the appellant, it was at this juncture that devised anelaborate ploy to swindle the appellant company out of lakhs of rupees.It all began when a Police Constable came to the appellant’s officemultiple times, beginning in September, 2000, claiming that he was thereto execute warrants against the Managing Director, CFO and other topexecutives of the appellant company. The appellant automatically calledtheir legal counsel, i.e. the respondent herein, to deal with the issue. Therespondent had a long conversation with the Police Constable at the endof which he informed the appellant that numerous farmers had apparentlyfiled complaints against the company and it was these large numbers ofcomplaints the Police Constable was concerned with. Each visit of theConstable’s followed the same pattern.

4. The appellant further alleged in the complaint that the respondentthen advised the appellant company to file 631 criminal petitions to quashthe alleged complaints filed against them. He painted a picture where A

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Athe arrest of the appellant’s top executives was imminent and furtherwent to contend that this dire situation could only be staved off if thecriminal petitions were filed. He introduced Ms. Gowri as the vendorfrom whom the stamps for court fees would be purchased. Therespondent stated that each petition would require a court fee ofRs.10,000/- (Rupees Ten Thousand only) to be filed – a statement thatBis blatantly false. Misled by the respondent, the appellant remittedRs.62,51,259/- (Rupees Sixty Two Lakh Fifty One Thousand TwoHundred and Fifty Nine only) towards court fees for filing the criminalpetitions. In order to make his lie believable, the respondent issued areceipt signed by Ms. Gowri for the amount received as the court fees.CFurther, respondent also stated that other counsels were required to dealwith the criminal petitions and urged the appellant company to retainthree persons he introduced as CC Narayana, D. Ramesh andRaghavendra Rao. The appellant company then issued cheques over aperiod of 15 months to these three persons amounting to Rs.6,46,500/-(Rupees Six Lakh Forty Six Thousand and Five Hundred only). InDaddition to the aforementioned sums, the respondent also charged theappellants herein a sum of Rs.2,12,500/- (Rupees Two Lakh TwelveThousand and Five Hundred only) as his fees.

5. By this time, the appellant company had spent a sum ofERs.72,00,000/- (Rupees Seventy Two Lakhs only) on litigation and wereanxious regarding the results of the petitions. The respondent assuredthem that the criminal petitions were proceeding well and in December,2001, when mere assurances were no longer enough, he produced adocument he claimed was an order passed by a Single Judge of the HighCourt of Karnataka at Bangalore dated October 3, 2001 whereby 318Fpetitions had been allowed in favour of the appellant company. Therespondent’s conduct is proven by multiple letters exchanged by himand the appellant company wherein he continued this charade. However,the appellant company grew suspicious of the respondent’s evasivemanner. In January, 2002, the Police Constable called the appellant’sGoffices threatening more warrants. At this juncture, the appellantcompany sought the advice of another Advocate. This action of theappellant company brought to light the myriad of deceptions practicedupon them by the respondent.

6. The appellant company asked it’s newly appointed AdvocateMr. B.K. Sampath Kumar to check on the status of the criminal petitionsas they felt that with the same pending before the trial courts, there wasno reason for the Constable to call them and threaten the issuance ofwarrants. It was then they came to know that no criminal petitions hadbeen filed in their name. The appellant company also gained knowledgethat no court fees had to be paid to file criminal petitions. The web ofdeceit now began to unravel, further queries made to the Commissionerof Stamps, Karnataka and the Secretary of the Bangalore AdvocatesAssociation revealed that Ms. Gowri was not a registered vendor ofstamps as they had been led to believe. This galvanized the appellantsto produce the order given to them by the respondent before the Registrarof the High Court. The latter declared the alleged order as forgery anda fake and unequivocally stated that the Single Judge of the High Courthad never issued such an order. In the wake of receiving this fakeorder, the High Court initiated suo moto contempt proceedings, CCCNo. 7/2002.

7. Apart from filing the complaint before the State Bar Council ofKarnataka under Section 35 of the Advocates Act on the aforesaidallegations, the appellant company has also filed Criminal Contempt CaseNo. 12/2002 and filed CC No. 8178 of 2002 under Sections 400, 417,419, 420, 468, 471 and 474 of the IPC which is pending before the IVthAddl. Metropolitan Magistrate, Bangalore. The appellant has also filedOS No. 1575 of 2002 for recovery of Rs.72,00,000/- taken by therespondent on false pretexts.

8. The State Bar Council vide Resolution No. 68 referred thecomplaint before the Disciplinary Committee. After enquiring into thematter, the Disciplinary Committee adjudged the respondent guilty ofmisconduct and vide Orders dated July 31, 2005, debarred the respondentfor life and removed his name from the rolls of the BCI. The respondentappealed the order passed in DCE No. 14/2004 before the BCI in DCAppeal No. 59/2005. The Disciplinary Committee of the BCI decidedthe appeal on September 10, 2011. It agreed with every finding renderedby the State Bar Council. However, it chose to reduce the punishmentdealt to the respondent and debarred him only for a limited period of 18months.

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A9. Aggrieved by the said order of the BCI, the appellant companyfiled CA No. 2732 of 2012 before this Court. While this appeal waspending, the respondent filed Review Petition No. 7/2011 in DC AppealNo. 59/2005 before the BCI under Section 48AA. The DisciplinaryCommittee considered the same as per the powers vested in it underSection 44 of the Act and vide impugned order dated July 11, 2015,Bremanded the matter back to the Disciplinary Committee of the BCI.

10. Civil Appeal No. 2732/12 filed by the appellant, thereafter,came up for hearing before this Court on September 01, 2016 whichwas disposed of as infructuous, with the following order:

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“Mr. Naresh Kaushik, learned counsel for the appellant submitsthat since the order impugned in this appeal has been reversedand the matter remanded back to the Disciplinary Committee ofthe Bar Council of India, this appeal has become infructuous andmay be dismissed as such reserving liberty for the appellant toDchallenge the order passed in review in separate proceedings inaccordance with law. The civil appeal is accordingly dismissed asinfructuous with the liberty prayed for.”

11. It is in the aforesaid background that the present appeal filedby the appellant company has come up for hearing in which the counselEfor both the parties have been heard.

12. On going through the Orders dated July 07, 2015 passed bythe Disciplinary Committee of BCI, we discern that the reason whichswayed the BCI to review its order was that before the State DisciplinaryCommittee, the respondent herein was not given adequate opportunityFto cross-examine PW-1, i.e., the complainant. It has recorded that theevidence of the complainant was closed on June 19, 2005, even thoughthe respondent could not appear on that day due to his sickness and hadproduced the medical certificate in support thereof. After closing theevidence of the complainant, case was fixed for respondent’s evidenceGon July 03, 2005. However, on that day also the respondent was notwell and he had sought adjournment in the form of memo supported bymedical certificate dated July 02, 2005. This application was declinedby the Disciplinary Committee of the State Bar Council and evidencewas closed. On that basis, the BCI has formed an opinion that in the H

absence of an opportunity to cross-examine PW-1, the respondent wasdenied his valuable right to defend himself which infringed the principleof fair trial. At the same time, while allowing the review petition on theaforesaid basis, instead of remanding the case back to the DisciplinaryCommittee of the State Bar Council, the BCI has withdrawn the case toitself on the ground that by virtue of the Section 36B of the Act, thejurisdiction of the Disciplinary Committee of the State Bar Council comesto an end on expiry of the period of one year. It has ordered that furtherenquiry shall be conducted by the Disciplinary Committee of BCI fromthe stage it was as on June 19, 2005 and the Chairman, BCI mayconstitute Disciplinary Committee of the BCI in this behalf.

13. We may also point out, at this juncture, that the appellant hereinhad raised a preliminary issue questioning the maintainability of the reviewpetition, inter alia, on the ground that scope of review jurisdiction wasvery limited. This objection has been turned down by the BCI with theremarks that review jurisdiction of the Disciplinary Committee of theBar Council under the Act is wider than the review jurisdiction of acourt under Section 114 of the Code of Civil Procedure read with Rule1, Order 47 of the CPC. For this purpose, it has taken shelter in thejudgment of this Court in the case of O.N. Mohindroo v. District Judge,Delhi & Anr.[1]and has quoted following portions from the said judgement:

“The powers of review are not circumscribed by the Act. Theanalogy of the Civil Procedure Code must not be carried too far.Such powers may be exercised in a suitable case for or againstan advocate even after the matter has gone through the hands ofthe Disciplinary Committee at some stage or even through thisCourt.

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…….All processes of the court are intended to secure justiceand one such process is the power of review.”

14. Taking umbrage under the aforesaid dicta, the impugned orderproceeds to hold that if a manifest wrong has been done, it is never toolate to undo the wrong, since the factors that are placed on civil courtson their review powers are absent in review powers of the Disciplinary 1 (1971) 3 SCC 5

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ACommittee, in terms of Section 44 and Section 48AA of the Advocate’sAct, 1961.

15. There cannot be any doubt about the aforesaid propositionstated by the BCI. However, its application on the facts of the presentcase is clearly unsustainable. We are of the opinion that the BCI has, inBfact, gone much beyond the scope of review powers, even when theseare liberally construed. Our reasons for this conclusion are discussedhereinafter.

16. The aforesaid ground of not allowing the respondent to cross-examine PW-1 was not taken in the review petition for the first time. ItCwas argued even before the Disciplinary Committee of the State BarCouncil. The State Bar Council considered the argument and rejectedthe same after it found that the respondent had intentionally adopteddilatory tactics. It specifically held that cross-examination of thecomplainant was closed after giving adequate opportunities to theDrespondent. However, every time, when the case was fixed for cross-examination of PW-1, the respondent would send the proxy counsel witha medical certificate stating that he was unable to present himself. TheState Bar Council even found discrepancies and inherent contradictionsin the medical certificates. Discussion in this behalf, contained in theorder of the Disciplinary Committee of the State Bar Council runs asEunder:

“It is to be seen from the records, that even before this Committeethe respondent has availed maximum indulgence to cross examinehis opponent, and inspite of availing the opportunity did not chooseFto complete the cross examination of his opponent. This Committeeultimately after understanding the intentional default has passedthe order taking the cross examination as closed. It is to be furtherseen that the respondent inspite of affording sufficient opportunityto him did not choose to let in any evidence from his side tosubstantiate his defense except marking some of the documentsGas exhibits, would not in any way assist the defense set up by himor would controvert the claim made by the complainant in thispetition. The respondent in this case, except making all efforts tostall the proceedings has not done the positive known to law todisprove the case set up against him.”

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17. It would be pertinent to mention that even in the appeal filedby the respondent before the BCI, he had raised this ground. Afterconsidering the same, in the light of arguments of both sides and thematerial placed on the record, the BCI specifically rejected this contention,finding no merit therein, in its order dated September 10, 2011 and alsoaffirmed the findings recorded by the State Bar Council that respondenthad committed a serious professional misconduct by revisiting the matteras an appellate authority. Relevant portion of the order of the BCI,discussing this aspect, goes on to say the following :

“The appellant further contended that the learned Lower D.C.has not granted full opportunity to lead evidence in his defenseand the learned Lower D.C. hastily and in a speedy manner withoutgiving proper opportunity to the appellant had decided the case.After going through the proceedings, we are satisfied that ampleopportunities were given to appellant for cross-examination ofthe complainant as well as tendering evidence in his favour. Fromthe proceedings and conduct of the appellant it is revealed that hewas found delaying the proceedings on one pretext or other,therefore, the learned Lower Disciplinary Committee has rightlyclosed the right of cross-examination and further found that inspiteof providing sufficient opportunities to tender his evidence indefense – the appellant to do so. Moreover, the learned LowerD.C. has also dealt with this issue elaborately in paragraph 9 ofthe judgment and we find no infirmity in it. Thus, the objectionraised by the appellant in this context has no substance.”

18. It is clear from the above that the issue as to whether therewas any denial of principles of natural justice or fair trial in closing thecross-examination of PW-1 or whether this course of action was righton the part of the State Bar Council after giving sufficient opportunitiesto the respondent, was specifically dealt with by the BCI andauthoritatively rejected while deciding the appeal of the respondent. Itarrived at a categorical and definite conclusion that the respondent wasgiven sufficient opportunities to cross-examine the complainant and it isthe respondent who was at fault in failing to avail the said opportunitiesas he was found delaying the proceedings on one pretext or the other. Itclearly follows that the BCI found fault with the respondent whose attitudewas non-participatory and he was avoiding attending the hearings onfalse pretext.

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A19. When we examine the review power of the BCI, keeping inview the aforesaid factual matrix in mind, the necessary consequencewould be to hold that in such a situation revisiting the issue on meritsagain on the pretext that the respondent was not granted properopportunities to cross-examine PW-1 is clearly beyond review jurisdiction.No doubt, in view of dicta of this Court in O.N. Mohindroo case, theBreview power of the Disciplinary Committee/BCI is not to be confinedwithin the narrow parameters laid down in Section 114 and Order 47Rule 1, CPC. At the same time, the power also cannot be extended tothe extent that the reviewing authority becomes appellate authority overits own order passed earlier. The liberty taken by the BCI outstripsCeven the wider amplitude and greater discretion that is granted to theBar Council. It has reviewed its own finding of fact and overturned thesame on the same material which was producedearlier and going by the same arguments which were advancedearlier.

D20. After going through the record, we find that the BCI hasshown undue indulgence to the respondent by allowing him to takeadvantage of his own wrong, in the guise of exercising its review power.It is a case of Nullus Commodum Capere Potest De Injuria SuaPropria meaning thereby a party cannot take advantage of its own wrong.EThis maxim is explained in Eureka Forbes Limited v. Allahabad Bankand Ors.[2]in the following manner:

“The maxim nullus commodum capere potest de injuria suapropria has a clear mandate of law that, a person who bymanipulation of a process frustrates the legal rights of others,Fshould not be permitted to take advantage of his wrong ormanipulations.”

21. It was argued before us by the learned counsel for the appellantthat it is a gross case of misconduct committed by the respondent. Therespondent has tarnished the image of a noble profession by indulgingGinto cheating and fraud. He duped the appellant by pretending that variouscriminal cases were filed against the appellant and there was inherentthreat of arrest of the appellant therein. On the basisof this cooked up story of fictitious cases, the responded 2(2010) 6 SCC 193H

extracted huge amounts of money from the appellant by adopting illegalmeans. In the process, in order to project semblance of those cases, therespondent fabricated number of documents. Ultimately, it was foundthat no such criminal cases were filed by the farmers against theappellant. The respondent stands convicted by the trial court in criminalproceedings. He had even the audacity of producing fabricated copy ofthe order of the High Court, for which the High Court of Karnatakainitiated contempt proceedings against him and in those contempt petitions,he is found guilty by the orders dated August 18, 2004 passed by theHigh Court and is sentenced to undergo 6 months’ simple imprisonmentalong with fine of Rs. 2000/-.

22. However, we refrain from making any comments as the appealof the respondent against his conviction is pending before the appellatecourt and, moreover, those aspects would have been relevant in decidingCivil Appeal No. 273 of 2012.

23. In the aforesaid circumstances, the impugned order dated July11, 2015 passed by the Disciplinary Committee of the BCI is hereby setaside.

24. The outcome of the aforesaid discussion would be toresuscitate Order dated September 10, 2011 passed by the DisciplinaryCommittee of BCI. However, the appellant was not satisfied with thatorder and it had challenged the same insofar as it modified the punishmentawarded to the respondent is concerned. However, said appeal (CivilAppeal No. 273 of 2012) was disposed of on September 01, 2016 ashaving become infructuous because of orders dated July 11, 2015 passedby the BCI in review petition. Liberty was granted to challenge theorder passed in review petition in accordance with the law.In these circumstances, we permit the appellant to seek recall oforders dated September 01, 2016 passed in Civil Appeal No. 273 of2012 and seek restoration of the said appeal for itsdecision on merits.

25. To sum up, with setting aside of order dated July 11, 2015passed by the Disciplinary Committee of BCI, its earlier order datedSeptember 10, 2011 stand revived. However, to the extent the said AB

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[2018] 2 S.C.R.

Aorder reduces the punishment that was awarded to the respondent, sameshall be subject to the outcome of Civil Appeal No. 273 of 2012, in casethe same is revived by the appropriate Bench and it decides to hear thatappeal on merits.

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26. The appeal is allowed in the aforesaid terms.

No costs.

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Nidhi Jain

Appeal allowed.

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