wp no. 69 of 2015 - deepak khosla vs. khaitan & co - debar from practice
DESCRIPTION
Deepak Khosla's Calcutta high court writ vs Khaitan & CoTRANSCRIPT
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T. No. _____________ of 2015
W.P. No. 69 of 2015
IN THE HONBLE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
IN THE MATTER OF : An application under Article 226 & 227 of the Constitution of India;
AND IN THE MATTER OF : The Calcutta High Court (Original Side) Rules, 1914
AND IN THE MATTER OF :
Section 34 of the Advocates Act, 1961
IN THE MATTER OF :
MR. DEEPAK KHOSLA & ORS.
.PETITIONERS
Versus
HONBLE HIGH COURT OF CALCUTTA & ORS. .RESPONDENTS
Group : IX Heads : -
of the Classification List. Sd/-
. DATE : 22-01-2015 Deepak Khosla (Advocate) PLACE:KOLKATA PETITIONER No. 1 IN PERSON
D - 367 Defence Colony NEW DELHI 110 024 Tel : 099 530 96650
Also at : Suite No. 408, 4th Floor
Center Point 21 Old Court House Street
(also known as Hemant Basu Sarani) KOLKATA -700 001
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T. No. _____________ of 2015
W.P. No. 69 of 2015
IN THE HONBLE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
IN THE MATTER OF :
MR. DEEPAK KHOSLA & ORS.
.PETITIONERS
Versus
HONBLE HIGH COURT OF CALCUTTA & ORS. .RESPONDENTS
INDEX
Sl.
No.
Particulars
Page No.
1. Group Index. -
2. Index -
3. List of dates. 1 3
4. Points Involved. 4 6
5. Proforma. 7
6. Writ Petition under Articles 226 and 227 of the
Constitution of India, alongwith affidavit.
8 80
7. Annexure 1: Chapter I of the Calcutta High Court
(Original Side) Rules, 1914.
81 86
8. Annexure 2 : Letter dated 09-01-2015 filed by Mr.
Deepak Khosla, with Ld. Registrar (Original Side),
seeking insertion of his name in the Register of
Advocates.
87 89
9. Annexure 3 : Letter dated 09-01-2015 filed by Mr.
Deepak Khosla with Ld. Registrar (Original Side),
placing on record the infractions of law by Khaitan &
Co, seeking action in accordance with law.
90 131
10. Annexure 4 : Letter dated 16-01-2015 from Ld.
Registrar (Original Side) to Mr. Deepak Khosla,
confirming the lack of eligibility of M/s Khaitan &
Company to act on the Original Side of this Hon'ble
Court.
132
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11. Annexure 5 : Letter dated 19-01-2015 addressed by
Mr. Deepak Khosla to Honble the Chief Justice,
reporting the inaction of Ld. Registrar (Original
Side) against Khaitan & Co.
133
12. Annexure 6 : Application dated 13-01-2015 seeking
intiation of criminal contempt proceedings against
Khaitan & Co for misleading the court (awaiting
filing).
134 192
13. Annexure 7 : Application dated 13-01-2015 seeking
prohibition against certain persons appearing in CP
No. 33 of 1988 (awaiting filing).
193 269
14. Annexure 8 : Letter dated 20-01-2015 filed by Mr.
Deepak Khosla with Ld. Registrar (Original Side),
placing on record the manipulations being resorted
to by Khaitan & Co, seeking action in accordance
with law.
270 297
15. Annexure 9 : News article in Legally India on
Khaitan.
298
16. Annexure 10 : Rules of the Karnataka High Court,
framed under Section 34 of the Advocates Act.
299 302
17. Annexure 11 : Website page of Khaitan & Company. 303
18. Annexure 12 : Letterhead of Khaitan & Co. as of
2008.
304
19. Annexure 13 : List of Senior Advocates designated
by the Hon'ble High Court of Calcutta w.e.f. 30-06-
2014 vide Notification dated 09-06-2014.
305
20. Annxure 14 : Typical filing by Khaitan & Co., having
no signature of the person signing the same.
306
Sd/- .
DATE : 22-01-2015 Deepak Khosla (Advocate) PLACE:KOLKATA PETITIONER No. 1 IN PERSON
D - 367 Defence Colony NEW DELHI 110 024 Tel : 099 530 96650
Also at : Suite No. 408, 4th Floor
Center Point 21 Old Court House Street
(also known as Hemant Basu Sarani) KOLKATA -700 001
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IN THE HONBLE HIGH COURT OF CALCUTTA AT KOLKATA
ORIGINAL WRIT JURISDICTION
CIVIL WRIT PETITION No._____________OF 2015
[Under Article 226 & 227 of the Constitution of India]
IN THE MATTER OF: DEEPAK KHOSLA & ORS.
.PETITIONERS
Vs.
HONBLE CALCUTTA HIGH COURT, & ORS.
RESPONDENTS
SYNOPSIS, & LIST OF DATES
1. 1861 : The Calcutta High Court came into being, by virtue of Indian High
Courts Act, 1861, followed by the Letters Patent of 1862.
2. 1879 : The Legal Practitioners Act was enacted.
3. 1914 : The Hon'ble High Court of Calcutta promulgated the Calcutta High
Court (Original Side) Rules, 1914, (presumably) in exercise of the relevant
empowering Clause in its Letters Patent and / or Section 122 of the Code of
Civil Procedure, 1908. These Rules defined the credentials and basis for
advocates desirous of practicing on the Original Side.
4. 1908 : The Code of Civil Procedure (1908) was enacted.
5. 1926 : The Bar Council of India Act (1926) was enacted.
6. 1961 : The Advocates Act (1961) was enacted, creating a unified Bar for
India, whereby many provisions of the Legal Practioners Act were repealed.
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7. 09-01-2015 : The petitioner No. 1 (Mr. Deepak Khosla, Advocate), citing the
notifying of Section 30 of the Advocates Act (1961) with effect from 15-06-
2011, filed his application with Ld. Registrar (Original Side), seeking
insertion of his name in the Register maintained by him under Rule 2 of the
aforesaid Rules. He categorically stated that his request was without
prejudice to his rights to challenge that aforesaid archaic Rule, as it was not
only redundant after the notifying of Section 30 of the Advocates Act, but
was patently contrary to the aforesaid Act, and hence, an unreasonable
restriction that abrogated the Constitutional mandate enshrined in Article
19(1)(g) of the Constitution of India.
8. 09-01-2015 : Respondent No. 5, 6 and 7, citing the Original Side Rules,
hotly objected to Petitioner No. 1 appearing before the Court of Hon'ble Mr.
Justice Anirudh Bose, arguing that he had no right appear on the Original
Side, as his name had not been inserted in the Register maintained under
Rule 2 of the Original Side Rules.
9. 11-01-2015 : The petitioner No. 1 filed his objections with Ld. Registrar
(Original Side), placing on record the numerous violations of the Calcutta
High Court (Original Side) Rules, 1914 by Khaitan & Company, and some
advocates who claimed right of audience on the strength of their alleged
engagement to plead by Khaitan & Co. He urged him to take action against
them in accordance with law as mandated by Rule 16, as they were
committing criminal contempt of court in the very proceedings that he was
appearing in. (Rule 16 makes it mandatory for the Registrar to issue such
offender a Show-Cause Notice, returnable to Ld. Judge in chambers, as to
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why the offending advocate or law firm should not be debarred from
practicing, including appearing, on the Original Side.)
10. 22-01-2015 : The Ld. Registrar (Original Side) rejected the application of
the Petitioner No. 1 for insertion of his name in the Register maintained
under Rule 4, on the sole grounds that he is not registered with the Bar
Council of West Bengal. But he continues to take no action against
Respondent No. 4, 5, 6 and 7 for their infraction of the Original Side Rules,
consequent to which infractions they cease to be eligible to practice on the
Original Side.
11. 22-01-2015 : Hence, this petition is filed before this Hon'ble Court, seeking
parity / equal treatment for all, but more so that the criminal contempt of
court that is taking place, inter alia, in CP No. 33 of 1988 at the behest of
Respondent No. 4 to 7 is immediately arrested, as proccedings are not going
forward, or are going forward in gross violation of law, thereby creating a
loop-hole for the Respondents or their clients to demand a very damaging
roll-back, which would be extremely prejudicial, inter alia, to Petitioner Nos.
2 and 3, the latter individual being as much as 93 years old, and entitled to a
fair and speedy resolution of his grievances in his lifetime.
Sd/-
. DATE : 22-01-2015 Deepak Khosla (Advocate) PLACE:KOLKATA PETITIONER No. 1 IN PERSON
Suite No. 408, 4th Floor Center Point
21 Old Court House Street (also known as Hemant Basu Sarani)
KOLKATA -700 001
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IN THE HONBLE HIGH COURT OF CALCUTTA AT KOLKATA
ORIGINAL WRIT JURISDICTION
CIVIL WRIT PETITION No._____________OF 2015
[Under Article 226 & 227 of the Constitution of India]
IN THE MATTER OF: DEEPAK KHOSLA & ORS.
.PETITIONERS
Vs.
HONBLE CALCUTTA HIGH COURT, & ORS.
RESPONDENTS
POINTS INVOLVED
This petition raises several substantial questions of law of constitutional and
public importance as they concern the protection of fundamental rights of the
petitioner, which may be summarized as follows:
Question 1 : Whether any person or firm not registered to practice as an
advocate in the Register maintained by the Ld. Registrar (Original Side)
under Rule 2 of the Calcutta High Court (Original Side) Rules, 1914 can be
permitted by this Hon'ble Court to practice on the Original Side ?
Answer of the petitioner : The Rules on the Original Side are very clear. The
Respondents themselves have invoked the Rules to seek restraint against
others. Therefore, since, in law, what is sauce for the goose is sauce for the
gander, means that it is the Respondents own case that all persons who
do not qualify by these Rules, even if it be themselves, must be denied
permission by the Ld. Registrar (Original Side) from acting, including
appearing, on the Original Side, as set out in Rule 8.
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Question 2 : Whether an advocate otherwise eligible to practice as an
advocate but not a Partner of a law firm be permitted to act on the
strength of a vakalatnama executed in the name of the firm ?
Answer of the petitioner : No. Such advocate would be in breach of
multiple provisions of law.
Question 3 : Whether an advocate otherwise eligible to practice as an
advocate but not a Partner of a law firm be permitted to act on the
strength of a vakalatnama executed in the name of the firm but not
accepted by him?
Answer of the petitioner : No. Such advocate would be in breach of
multiple provisions of law, as no contract or representation has been
executed by him. By the doctrine of election, an advocate can elect
whether to practice as an advocate in independent practice, or elect to
practice as a Partner of a law firm. But there is no provision for an
advocate to be a non-partner employee of a law firm, and then act as if is
the advocate engaged by the client, merely because the client, attracted by
the partners of the firm, has appointed the firm to act for him.
Question 4 : Whether an advocate otherwise eligible to practice as an
advocate but not a Partner of a law firm be permitted to act on the
strength of a vakalatnama executed in the name of the firm and accepted
by him ?
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Answer of the petitioner : No. Such a vakalatnama would be a nullity in
law, as the contract of representation (under the laws relating to agency)
can come into being only when accepted by a duly-authorised Partner.
Question 4 : Whether a law firm may be permitted to use a name that
does not reveal who its Partners are ?
Answer of the petitioner : No. Such firm would be in breach of the letter as
well as the spirit of Rule 9 (c) of the Calcutta High Court (Original Side)
Rules, 1914.
Question 5 : Whether a law firm may be permitted the use of the phrase
& Company in its name ?
Answer of the petitioner : No, this would be in violation of Rule 9 (c), as
well as Rules of other High Courts which also would apply here, mutatis
mutandis. And if at all Respondent No. 2 has approved the name of a firm
with the phrase & Company as a suffix in it, as his act, undoubtedly
inadvertent, would be a nullity in law, as it would have been without any
jurisdiction / competence / or authority in his hands to do so.
Sd/-
. DATE : 22-01-2015 Deepak Khosla (Advocate) PLACE:KOLKATA PETITIONER No. 1 IN PERSON
D - 367 Defence Colony NEW DELHI 110 024 Tel : 099 530 96650
Also at : Suite No. 408, 4th Floor
Center Point 21 Old Court House Street
(also known as Hemant Basu Sarani) KOLKATA -700 001
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IN THE HONBLE HIGH COURT OF CALCUTTA AT KOLKATA
ORIGINAL WRIT JURISDICTION
CIVIL WRIT PETITION No._____________OF 2015
[Under Article 226 & 227 of the Constitution of India]
IN THE MATTER OF: DEEPAK KHOSLA & ORS.
.PETITIONERS
Vs.
HONBLE CALCUTTA HIGH COURT, & ORS.
RESPONDENTS
PROFORMA
Sd/-
. DATE : 22-01-2015 Deepak Khosla (Advocate) PLACE:KOLKATA PETITIONER No. 1 IN PERSON
D - 367 Defence Colony NEW DELHI 110 024 Tel : 099 530 96650
Also at : Suite No. 408, 4th Floor
Center Point 21 Old Court House Street
(also known as Hemant Basu Sarani) KOLKATA -700 001
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T. No. _____________ of 2015
W.P. No. _____________ of 2015
IN THE HONBLE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE
IN THE MATTER OF : An application under Article 226 & 227 of the Constitution of India;
AND IN THE MATTER OF : The Calcutta High Court (Original Side) Rules, 1914
AND IN THE MATTER OF :
Section 34 of the Advocates Act, 1961
AND IN THE MATTER OF : The Contempt of Courts Act (1971), read with Article 215 of the Constitution of India
AND IN THE MATTER OF : Inaction and/or refusal of the Respondents in not suittably restraining Respondent No. 4 (Khaitan & Co) from practicing in the Hon'ble High Court of Calcutta on its Original Side despite their multiple violations of the aforesaid Rules.
AND IN THE MATTER OF :
Discriminatory inaction (by way of turning of the proverbial Nelsons Eye) to blatant infractions of the law by a powerful firm of advocates, thus, indicating intent by the powers-that-be to shield and protect offenders from the punishment legally due to them only owing to the size, clout and prominence of the offenders.
AND IN THE MATTER OF :
Facilitation and / or abetment by the High Courts Registry officials of conduct by Khaitan & Co that squarely constitutes criminal contempt of court.
IN THE MATTER OF :
1. MR. DEEPAK KHOSLA
An advocate, having his office at Suite
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No. 408, 4th Floor, Center Point, 21 Old Court House Stret (now known as Hemant Basu Sarani), KOLKATA 700 001 and permanent residence at D-367 Defence Colony, New Delhi 110 024
2. M/s HUNGERFORD INVESTMENT TRUST LTD
(in voluntary liquidation), a Company registered in, and under the laws of, Singapore, having its Regd. Office : 36, Tanjong Penjura, Singapore, and also at 1-B Judges Court Road, Kolkata 700 027, acting through its Chairman, Mr. Nirmal Jit Singh Hoon
3. MR. NIRMAL JIT SNGH HOON
aged about 93 years, a PIO citizen of UK, resident (when in India) of 10/3 NRI Colony, Greater Kailash-IV, New Delhi, presently at 1-B Judges Court Road, Kolkata 700 027.
.PETITIONERS
Versus
1. HONBLE HIGH COURT OF CALCUTTA
(In its administrative capacity) Acting through its Ld. Registrar General, KOLKATA 700 001
2. LD. REGISTRAR (Original Side)
Honble High Court of Calcutta, KOLKATA 700 001
3. LD. REGISTRAR (Appellate Side)
Honble High Court of Calcutta, KOLKATA 700 001
4. KHAITAN & CO
A partnership firm claiming to be a firm of advocates, having their office at Emerald house, Old Post Office Street, KOLKATA 700 001
5. MR. RATNESH RAI
An advocate working with Khaitan & Co, having its office at Emerald house, Old Post Office Street, KOLKATA 700 001
6. MR. UTPAL BOSE
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An advocate (now a Senior Advocate), claiming to be briefed by Mr. Ratnesh Rai and/or Khaitan & Co. in CP No. 33 of 1988, having its office at Emerald house, Old Post Office Street, KOLKATA 700 001
7. MR. JOY SAHA
An advocate claiming to be briefed by Mr. Ratnesh Rai and/or Khaitan & Co. in CP No. 33 of 1988, having its office at Emerald house, Old Post Office Street, KOLKATA 700 001
8. BAR COUNCIL OF WEST BENGAL Acting through its Secretary c/o High Court, Kolkata
9. BAR COUNCIL OF INDIA Acting through its Secretary Rouse avenue Instituitonal area IP Estate New Delhi
.RESPONDENTS
PETITION UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA SEEKING, INTER ALIA, ISSUANCE OF A
WRIT OF MANDAMUS TO LD. REGISTRAR (ORIGINAL SIDE),
SEEKING PERFORMANCE OF HIS STATUTORY DUTIES IN
ACCORDANCE WITH LAW, AS STIPULATED IN RULE 16 THE
CALCUTTA HIGH COURT (ORIGINAL SIDE) RULES, 1914.
To,
The Honble Chief Justice Dr. (Ms.) Manjula Chellur,
and
her Companion Judges of the
Honble High Court of Calcutta at Kolkata.
The Humble petition on behalf of the Petitioners above named:-
MOST RESPECTFULLY SHOWETH :
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1. The instant writ petition is filed under Article 226 and 227 of the
Constitution of India for enforcement of the fundamental rights of the
petitioners, and for uniform enforcement of the law against a large and
powerful law firm (vis. Respondent No. 4, Khaitan & Company), for its
multiple infractions of the law de hors the preceding factors, which are
wholly irrelevant in the unblinking and impartial eyes of the Law, before
whom all are equal.
2. The petitioner No. 1 is a citizen of the country, and hence, eligible to
invoke the jurisdiction of this Hon'ble Court under the powers conferred
upon by it by Article 226 of the Constitution of India against entities that
are State. He is an advocate within the meaning of the word as defined
in the Advocates Act (1961), and is duly registered under the aforesaid Act
with the Bar Council of Karnataka, and practices in many locations all over
India, having clients / matters in Karnataka (Bengaluru), Delhi, H. P.,
Uttrakhand, Maharashtra (Mumbai), West Bengal (Kolkata), etc. Petitioner
Nos. 2-3 are his clients, who have litigation pending before this Hon'ble
Court. (Petitoner Nos. 1-3 are collectively referred to herein as
petitioner.) By virtue of notifying of Section 30 of the Advocates Act as
operative with effect from 15-06-2011, petitioner No. 1 now has a
fundmental right guaranteed to him by Article 19(1)(g) of the Constitution
of India to practice his profession of advocacy anywhere in India, with a
corresponding right of audience before any Court across the country.
3. The petitioner is aggrieved by the fact that the Calcutta High Court is still
purporting to operate under the Calcutta High Court (Original Side) Rules,
1914 (hereinafter referred to as the Original Side Rules), some of whose
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provisiuons he has challenged separately. However, till such time as the
challenge is entertained and succeeds, those Rules are very much law,
which bind all concerned persons. The grievance in the present petition is
on account of the discriminatory treatment meted out to Petitioner No. 1
(at the instigation and prompting of Respondent Nos. 4-7) while taking no
action against Respondent No. 4 7, whose infractions / non-compliance
of the same Rules is much larger, even heinous, leading to the polluting of
judicial proceedings in which Petitioner 2 and 3 are participants, and in
which Petitioner No. 1 is desirous of acting as an advocate, and has been
engaged by Petitioner 2-3 for that very purpose, but is being obstructed in
that endeavor by the acts of criminal contempt being committed therein
by Respondent Nos. 4,-7, and also, by Respondent No. 2 [vis. Ld. Registrar
(Original Side)] at the prompting and instigation of Respondent No. 4 and
its partners and / or associates.
A copy of the Calcutta High Court (Original Side) Rules (1914), as amended
up to date, are appended hereto, and is marked as Annexure 1.
DECLARATION ON IMPLEADMENT OF ALL AFFECTED PARTIES :
4. That to the best of the understanding of the petitioner, all the persons /
bodies / institutions likely to be affected by the orders sought in the
present writ petition have been impleaded by him as Respondents, and
that to best of the knowledge as well as understanding of the petitioner,
that to the extent that they are practically impleadable, no other persons /
bodies / institutions are likely to be adversely affected by the orders
sought in the writ petition.
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Nonetheless, if any such body / person / institution exists, the petitioner
has no hesitation in their seeking impleadment in the same, as the
petitioner shall not, and hereby undertakes that he shall not, oppose the
prayer of any person who seeks impleadment in the present matter as a
Respondent so long as the motives for doing so are not with intent to
delay the due course of judicial proceedings, or such-like motivated
reasons.
5. That the Respondent Nos. 1-3 all are State (or public servants deemed
as State) within the meaning of Article 12 of the Constitution of India, and
hence, are amenable to the ordinary jurisdiction of this Honble Court
provided by Articles 226 of the Constitution of India for any act or acts
being illegal or improper or inappropriate, more particularly in case of
illegal, or discriminatory, or unreasonable, or arbitrary, or other acts of
the Respondents Nos. 1-3 not being in accordance with both the letter of
the law as well as its spirit, where the word acts used herein includes
those of commission or even of omission1.
6. That the Respondents are further elaborated upon below, the inclusion of
each being arrayed as a party in the present writ petition so as to not let
the petition suffer, or risk to suffer, for a non-joinder of parties.
They have been arrayed either because they are necessary parties in the
present proceedings (because in their absence, no order can be made
effectively, or because the orders sought directly affect their rights or
1 Please see Section 32 of the Indian Penal Code omissions are as punishable as acts of commission.
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vitally affect them, and therefore, by the principles of natural justice, no
order ought to be passed by this Hon'ble Court behind their backs), or
because they are proper parties (because in their absence, an effective
order, though perhaps possible to be made, would obstruct, or not
facilitate, a complete and final decision on the questions involved in the
proceeding), or both.
The inclusion of these Respondents is in light of the criteria spelt out, inter
alia, by a 4-Judge Bench of the Hon'ble Supreme Court in the case of Udit
Narayan Singh vs. Board of Revenue, Bihar (AIR 1963 SC 786), read with
the views of a Full Bench of the Hon'ble Supreme Court expressed in the
case of Prabodh Verma vs. State of Uttar Pradesh (AIR 1985 SC 167).
It is to be respectfully stated that the necessity for their inclusion in the
present proceedings is at great incremental cost to the petitioner (in
terms of being required to serve that many additional copies, in terms of
being required to read, analyze and study that many more counter-
affidavits, in terms of having to prepare that many more rejoinder
affidavits, etc), but who has volunteered to suffer this additional cost and
burden only in order to comply with the dicta of the Hon'ble Supreme
Court in regard to what ought to be a proper and complete array of
parties ; hence, despite this burden of additional cost adversely affecting
the petitioners interests, these Respondents have been arrayed by him
also as necessary parties as any view taken by this Hon'ble Court based
on the response from the other State Respondents on the issues raised
herein, including general civil consequences of the writs of certiorari or
mandamus requested herein, as well as / or potential culpability and/or
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consequences thereof that will or may ensue, will undoubtedly affect the
position of some of these Respondents also. Hence, all these Respondents
deserve an opportunity of being heard before any decision is taken by this
Hon'ble Court on the issues set out herein.
The Respondents are as follows :
a) Respondent No. 1 is the Hon'ble High Court of Calcutta, acting in its
administrative capacity, acting through its Ld. Registrar General. It is
arrayed as reliefs are sought against it, and its Rules on the Original
Side are sought to be enforced.
b) Respondent No. 2 is the Ld. Registrar (Original Side) of the Hon'ble
High Court of Calcutta. He is arrayed as the onus to issue a Show-Cause
Notice in terms of Rule 16 of the Original Side Rules to Respondent No.
4 to 7 to show cause to Hon'ble Judge in chambers why they should not
be debarred from practicing on the Original Side is on him, but who is
not issuing the same, even though their reprehensible breaches are
writ large on the face of the record, and have been complained of
formally by Petitioner No. 1 as far back as on 09-01-2015.
c) Respondent No. 3 is the Ld. Registrar (Appellate Side) of the Hon'ble
High Court of Calcutta. He is arrayed as certain directions are required
to be issued to him in relation to the Rules.
d) Respondent No. 4 is M/s Khaitan & Co, allegedly a partnership firm,
that claims the right to practice in such an avatar on the Original Side
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of this Hon'ble Court as an advocate. However, they do not qualify so,
and despite service of the letter dated 09-01-2015 addressed to Ld.
Registrar (Original Side) on them in open Court on 13-01-2015, have
still insisted on doing so. Furthermore, they describe themselves as &
Company in their name even though the use of the phrase and
Company is prohibited by many High Courts under Rules framed by
such High Courts under Section 34 of the Advocates Act, including the
Hon'ble High Court of Karnataka, at whose principal city (Bengaluru)
Respondent No. 4 also has an office, and impermissibly and illegally
practices there also as, and under the name and style of, Khaitan &
Co..
e) Respondent No. 5 is one Mr. Ratnesh Rai, allegedly an advocate. He
allegedly works with Respondent No. 4 (Khaitan & Co.), but as per
informal reports gleaned by the petitioner, is not a partner of the
aforesaid firm. This being so, he has no right to practice on the Original
Side of this Hon'ble Court. Even otherwise, it appears after making
informal inquiries from the office of Respondent No. 2 that he has not
obtained insertion of his name in the Register maintained by
Respondent No. 2 [Ld. Registrar (Original Side)] under Rule 2 of the
Original Side Rules, as a consequence of which he, as per his own
argument put forth before Court No. 24 on 09-01-2015 and other
dates, has no right to practice or seek audience on the Original Side.
Thus, certain directions are sought to be issued to him, so that he does
not interfere in the due course of judicial proceedings, and in the
adminstration of justice.
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f) Respondent No. 6 is one Mr. Utpal Bose, allegedly an advocate, now
reported to have been designated by this Hon'ble Court vide
Notification No. 2852-A dated 09-06-2014 as a Senior Advocate
within the meaning of the phrase as used in Section 16 of the
Advocates Act (1961) with effect from 30-06-2014. He has been
appearing in CP No. 33 of 1988 since about 2005 or thereabouts,
claiming right to do so as he allegedly has been briefed by Respondent
No. 4 (Khaitan & Co.) / Respondent No. 5 (Mr. Ratnesh Rai), but as per
informal reports gleaned by the petitioner, did not ever file a
vakalatnama to entitle him to so appear in those proceedings. This
being so, his appearance and arguing full-blown pleadings (i.e. other
than ministerial pleadings) is totally illegal. Also, prior to his being
designated as a Senior Advocate, he has not sought correction of
various Court orders passed in various matters, in which he has been
described by the Honble Court concerned (perhaps erroneously) as
Senior Counsel, or senior advocate, even though he had a duty to do
so, so as to not have it alleged against him that he had fraudulently laid
claim to a professional status that he did not possess. He has been
appearing in CP No. 33 of 1988 in January 2015 onwards as Senior
Advcoate being briefed by Khaitan & Company / Mr. Ratnesh Rai, even
though he well knows that they have no right to audience on the
Original Side, meaning that he, too, therefore, by the well-settled
principle of cadit opus fondamento sublato2, would have no right of
audience himself on the Original Side in this particular matter. Even
otherwise, it appears after making informal inquiries from the office of
Respondent No. 2 [Ld. Registrar (Original Side)] that he has not
2 When the foundations falls, the structure falls.
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obtained insertion of his name in the Register maintained by
Respondent No. 2 under Rule 2 of the Original Side Rules, as a
consequence of which, as per his own argument put forth before Court
No. 24 on 09-01-2015 and other dates, he has no right to practice or
seek audience on the Original Side.
g) Respondent No. 7 is one Mr. Joy Saha, allegedly an advocate. He has
been appearing in CP No. 33 of 1988 since about 09-01-2015, claiming
right to do so as he allegedly has been briefed by Respondent No. 3
(Khaitan & Co.) / Respondent No. 4 (Mr. Ratnesh Rai), but as per
informal reports gleaned by the petitioner, did not ever file a
vakalatnama to entitle him to so appear. This being so, his appearance
and arguing full-blown pleadings (i.e. other than ministerial
pleadings) is totally illegal. He has been appearing in CP No. 33 of 1988
as non-Senior Advocate being briefed by Khaitan & Company / Mr.
Ratnesh Rai, even though he well knows that they have no right to
audience on the Original Side, meaning that he, too, therefore, by the
well-settled principle of cadit opus fondamento sublato, would have no
right of audience himself on the Original Side, at least in the
aforementioned proceeding. Even otherwise, it appears after making
informal inquiries from the office of Respondent No. 2 [Ld. Registrar
(Original Side)] that he has not obtained insertion of his name in the
Register maintained by Respondent No. 2 under Rule 2 of the Original
Side Rules, as a consequence of which he, as per his own argument put
forth before Court No. 24 on 09-01-2015 and other dates, has no right
to practice or seek audience on the Original Side.
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19
h) Respondent No. 8 is the Bar Council of West Bengal. They have been
arrayed as the licence of the advocates who are partners, associates,
employees of Khaitan & Co to practice the law is sought to be cancelled
for gross professional misconduct, by taking suo motu cognizance of
the vile acts of reprehensible professional misconduct committed by
them. (However, owing to the high possibility of misplaced loyalties of
Respondent No. 8, as back-up, Respondent No. 9 also is arrayed for the
reasons set out alongside its name.)
i) Respondent No. 9 is the Bar Council of India. It is arrayed as
directions are sought to it to transfer the case of professional
misconduct from the Bar Council of West Bengal to itself under Section
35 of the relevant Rules for disciplinary proceedings, because owing to
the clouot Respondent No. 4 and its partners enjoy in the State of West
Bengal, it is unlikely that any action, other than mere pro forma
(merely for public consumption) will be taken by Respondent No. 8
against Respondent No. 4.
HISTORICAL EVOLUTION OF THE LAW ON ADVOCATES RIGHTS AND
DUTIES
7. The historical evolution of the law on the rights and duties of advocates
can be seen from the following events, presented chronologically below :
Sl.
No.
DATE
EVENT
1. 1772 By an Act of Settlement, the British Parliament
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20
recognized the prerogative of the East India
Company to administer civil justice through
Sadar Diwani Adalats, in terms of the authority
so received by it from the Mughal Emperor.
2. Prior to 1780 Justice was dispensed by Adalats, which were
assisted by Pandits and Maulvies. Their
opinions were generally accepted by the Courts
while handing out a verdict.
3. 1774 The Supreme Court started functioning at
Calcutta. However, Indians were not allowed to
practice there, and it was only the preserve of
English Barristers. As a direct result of this
anomaly, its functioning was marred by the first
case itself (that of Maharaja Nanda Kumar, who
was defended by Thomas Farrer). As the British
Barristers did not know the local language, the
complications arising from such ignorance (and
even the law that was applicable) resulted in a
blatant miscarriage of justice in that case, which
smeared the first Court erected in India by a
statute of British Parliament.
4. 1780 Regulation of 1780 was passed by the East India
Company for the Sadar and Provincial Diwani
Adalats. In its 13th section, it spoke of vakeels who
could put questions to witnesses. Immediately
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21
prior to this, the real job of lawyers was being
performed by Pandits and Maulvies.
5. 1793 When the Vakeels previously appeared in the
Adalats, no enquiries were made to ascertain
whether they were qualified to plead the cause. As
a result, many a time, trials were protracted
because of production of unnecessary exhibits, or
asking of irrelevant questions, etc. The
authorities, therefore, decided that pleading of
causes should be made a distinct profession. It
was decided that no person should be admitted to
plead in the Courts unless he was a man of
character and education, and well-versed in the
Mohammedan or Hindu Laws, and in the
Regulations enforced by the Company.
Hence, Bengal Regulation No. VII of 1793 was
enacted. By its means, for the first time, a regular
legal profession for the courts was set up by the
East India Company. By its means, it also provided
for appointment of Native Pleaders in the Courts
of Civil Judicature for the Provinces of Bengal,
Bihar and Orissa. It was also decided that these
lawyers should be subjected to rules and
restrictions calculated to ensure to their clients a
diligent and faithful discharge of the trusts
reposed in them by their clients as well as by the
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22
courts. The Regulation authorized the Sadar
Diwani Adalat to admit a suitable number of
vakeels, to issue them Charter to practice in
different courts, and to prescribe qualifications for
their enrolment. It also provided for disciplinary
jurisdiction of the Sadar Diwani Adalats on the
vakeels.
It is, perhaps, from this time onwards that the
phrase Officer of the Court is being used to
describe a pleader, as he had official sanction as
well as support of the specific court before whom
he practiced.
6. 1814 Regulation XXVII of 1814 brought about some
changes in the legal profession. It prohibited
practice of law by persons other than those
enrolled by the Sadar Diwani Adalats, and
restricted the profession to individuals of Hindu
and Mohammedan persuasion.
7. 1833 The invidious communal provision in the
Regulation of 1814 was abolished by the
Regulation XII of 1833, and the office of
pleaders was made open to persons of all
religions or nationality. As a result, thereafter,
every qualified person became eligible to be
enrolled as a pleader of the Sadar Diwani Adalat.
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23
8. 1861 The Indian High Courts Act of 1861 came to be
enacted.
9. 1862 The Letters Patent of 1862 was passed into law.
Clauses 7-10 of the Letters Patent empowered the
High Courts to admit 3 classes of practitioners :
advocates, vakeels and attorneys, and to exercise
disciplinary jurisdiction over them.
10. 1865 The Revised Letters Patent of 1865 was enacted,
whereby its Clause 9 authorised the High Courts
to approve, admit and enroll 3 classes of
practitioners : Advocates, Vakeels, and
Attorneys. Advocates in this sense meant
Barristers. The persons so admitted were
entitled to appear for the suitors of the High
Courts, and to plead or act according to the rules
framed by the High Courts, or directions issued to
them.
11. 1866 The Madras High Court allowed Vakeels who,
hitherto, were only allowed to appear on its
Appellate Side, to also appear on its Original Side.
(The logic of previously allowing them to appear
only on the Appellate Side was that the High
Court, in its Appellate jurisdiction, was an
extension of the Sadar Diwani Adalats.)
12. 1879 The Legal Practitioners Act of 1879 was enacted,
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24
which made important changes in the law, namely
:
(a) the office of pleader was now thrown open to
all persons of any nationality or religion, so long
as they were duly certified by the Sadar Diwani
Adalat ;
(b) the definition of legal practitioner now
included 6 categories viz. advocate or vakil or
attorney of any High Court, and also, a pleader,
mukhtar or revenue agent.
(c) Attorneys and Barristers of Her Majestys
Courts (usually, Englishmen) who, thus far, were
not permitted to practice, as of right, in the Sadar
Diwani Adalats, were now allowed to plead in the
Adalats, subject to rules in force in such Adalats ;
(d) the pleaders were permitted to enter into
agreements with their clients for their fees for
professional services.
(e) For the first time, elaborate provisions were
made in respect of disciplinary jurisdiction over
the pleaders.
The consequence of this Act was that from now
on, though Barristers and Attorneys (usually,
Englishmen) were permitted to practice in the
courts erected by the East India Company (the
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25
Sadar Diwani Adalats), however, an Indian legal
practitioner could not appear before the Supreme
Courts.
13. 1886 Under the amended Rules of the Madras High
Court, a law graduate was qualified to be admitted
as a Vakeel if he passed an examination in
procedure and underwent practical training with
a practicing lawyer for a year. Thus, from now on,
in the Madras High Court, there was no distinction
between Barristers, Vakeels and Attorneys insofar
as zone of practice was concerned, and under its
Rules, Vakeels and Attorneys could also act on its
Original Side.
However, this was not so, for example, with the
Bombay High Court, where vakeels still could not
act or plead on its Original Side.
14. 1899-1908 During the tenure of Chief Justice Jenkins of the
Bombay High Court, while there was institutional
persuasion to get talented Vakeels to start to
practice on its Original Side, however, this was
still subject to the limitation that the Advocates of
the Original Side, whether Barristers or non-
Barristers, had to be instructed by an Attorney
before they could appear and plead on the
Original Side.
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26
But in Calcutta, only the Advocates (i.e. the
Barristers of England and Ireland, and the
Advocates of Scotland) were entitled to appear
and plead on its Original Side, although on the
instructions of an Attorney. They were also
entitled to appear and plead on the Appellate Side.
However, Vakeels were not entitled to act or
plead before the High Court (successor to the
Supreme Court) on the Original Side, or even in
appeals from the Original Side, and could only act
and plead in the Sadar Diwani Adalats, and in
appeals before the High Court from matters
before the Sadar Diwani Adalats.
As a result, Advocates (Barristers) could only
appear and plead on the Original Side on the
instructions of an Attorney empowered to act on
the Original Side, whereas on the Appellate Side,
they were allowed both to act and plead, as in the
Sadar Diwani Adalats.
Thus, there came to be an invidious distinction in
the Calcutta High Court (which, then, was the
capital of the Indian Empire) between the rights of
Barristers, Vakeels and Attorneys, and it is from
this distinction that grew the practice on its
Original Side that pleading would be confined to
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27
Barristers, and acting to Solicitors, whereas on
its Appellate Side, even vakeels could plead as
well as act, just as they did before the Sadar
Diwani Adalats.
15. 1908 The Code of Civil Procedure was enacted.
Keeping in mind the three distinct classes of legal
practitioners in existence under The Legal
Practitioners Act of 1879 (i.e. Barristers, Vakeels
and Attorneys), and in order to render itself
harmonious with the then-prevailing practice of
the Chartered High Courts under the Letters
Patent of making provisions of who, under The
Legal Practitioners Act of 1879, could act, and
who could appear and who could plead,
provided in Order III Rule IV, a sub-Rule V, and
also, a proviso to the same.
The contents of the same are reproduced below,
because from a plain reading of these provisions,
it is clear that these provisions were inserted in
the Code to meet the legal exigencies of that time
as existing under The Legal Practitioners Act of
1879, but after enactment of The Advocates Act of
1961, these provisions are now patently
redundant, as well as contrary to law :
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28
(5) No pleader who has been engaged for
the purpose of pleading only shall plead on
behalf of any party, unless he has filed in
Court a Memorandum of Appearance
signed by himself and stating :-
(a) the names of the parties to the
suits,
(b) the name of the party for whom
he appears, and
(c) the name of the person by whom he is
authorised to appear :
Provided that nothing in this sub-rule shall
apply to any pleader engaged to plead on
behalf of any party by any other pleader
who has been duly appointed to act in
Court on behalf of such party.
The fact that the Code of Civil Procedures
provisions relating to pleaders were framed by
the contents of The Legal Practitioners Act of 1879
is self-evident from the Definition of pleader at
Section 2(15) of the Code, which is now totally
contrary to the Advocates Act of 1961, as it says as
follows :
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29
2(15) "pleader" means any person entitled to
appear and plead for another in Court, and includes
an advocate, a vakil and an attorney of a High
Court;
This triple terminology has now been rendered
redundant by the Advocates Act of 1961, clearly
showing the need for re-visiting the Code, and
therefore, also re-visiting the real and
concurrently-contextual meaning of Order III Rule
4s sub-rule (5) (especially including its proviso), if
not its very existence.
16. 1914 The Hon'ble High Court of Calcutta promulgated
the Calcutta High Court (Original Side) Rules, 1914,
(presumably) in exercise of the relvant
empowering Clause in its Letters Patent and / or
Section 122 of the Code of Civil Procedure, 1908.
These Rules defined the basis and credentials for
advocates desirous of practicing on the Original
Side.
17. 1923 In November 1923, a private Bill was moved in
the Central Legislative Assembly to amend the law
as to legal practitioners, and to create an All-India
Bar. In consequence, the Government constituted
the Indian Bar Committee under the
Chairmanship of Sir Edward Chamier who had
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30
been the Chief Justice of the Patna High Court, and
then, the Legal Adviser and Solicitor to the
Secretary of State of India at London.
18. 1924 In February 1924, the Chamier Committee
submitted its report. It did not consider it feasible
to organize the Bar on an All-India basis, or to
constitute an All India Bar Council.
Instead, it suggested that :
a) in all the High Courts, there be established a
single grade of practitioners entitled to
plead, who should be called Advocates,
the only distinction being that if special
conditions are placed for admission to
plead on the Original Side, the distinction
within that single grade being those
entitled to appear on the Original Side, and
those not entitled to do so.
b) Subject to certain conditions being fulfilled,
Vakeels should also be allowed to plead on
the Original Side of the three Chartered
High Courts i.e. Calcutta, Madras and
Bombay.
c) Each High Court should constitute a Bar
Council, which should have the power to
enquire into matters calling for disciplinary
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31
action against a lawyer ; and
d) The disciplinary powers should rest with
the High Court, but before taking any
action, it should refer the matter to the Bar
Council for enquiry and report.
19. 1926 To implement the recommendation of the
Chamier Committee, the Indian Bar Council Act
of 1926 was enacted, which to some extent
brought about the unification and autonomy of
the Bar. By this, it allowed the High Courts to
retain its power to prescribe who could appear on
its Original Side, and who could not. As a result,
advocates enrolled with other High Courts could
not, as a matter of right, appear in other High
Courts ; they could do only with prior permission
of the Chief Justice, which many a time was
denied.
20. 1949 The Bombay High Court took the first step of
doing away with two Bars, though it retained the
distinction that Advocates could still not act on
the Original Side unless instructed by Attorneys.
21. 1951 In response to persistent and wide-spread
demand for an All-India Bar, the Government of
India appointed the All-India Bar Committee
under the chairmanship of Justice Mr. S. R. Das of
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32
the Supreme Court.
22. 1951 The Supreme Court Advocates (Practice in High
Courts) Act, 1951 was enacted.
23. 1952 On a challenge raised by Mr. Aswini Kumar Ghosh
(an Advocate practicing in the Supreme Court) to
the refusal of the Calcutta High Court to allow him
to appear there, in a majority 3:2 decision of a 5-
Judge Bench, it was held that an Advocate of the
Supreme Court was entitled as of right to appear
and plead as well as to act in all the High Courts.
(Justice Mr. S. R. Das, Chairman of the All-India
Bar Committee constituted in 1951, was one of
the two dissenting Judges.)
24. 1960 The Bombay High Court allowed that in limited
areas, an Advocate could appear and plead on the
Original Side without being instructed by an
Attorney, areas such as applications under Article
226 of the Constitution, and in taxation matters
such as those relating to Income Tax, Wealth Tax,
Gift Tax, etc.
25. 1961 Owing, inter alia, to rising costs for litigants on the
one hand by the dual system of Attorneys and
Advocates (Barristers), and objections from
within the profession on the other, the Advocates
Act of 1961 was enacted, which unified all the
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33
four classes of legal practitioners existing hitherto
(i.e. pleaders, vakeels, Advocates, and
Attorneys), and from that date onwards, there is
only one single class of Advocate who is entitled
to practice the profession of law in India, from the
lowest to the highest court in the land.
Most significantly, by its Section 51, it stipulated
as follows :
51. Rule of construction.- On and from the
appointed day, references in any enactment to an
advocate enrolled by a High Court in any form of
words shall be construed as references to an
advocate enrolled under this Act.
By its Section 50, it also repealed the following
enactments, including those of the Letters
Patent as specified therein :
50. Repeal of certain enactments.- (1) On the
date on which a State Bar Council is constituted
under this Act, the provisions of sections 3 to 7
(inclusive), sub-sections (1), (2) and (3) of section 9,
section 15 and section 20 of the Indian Bar Councils
Act, 1926 (38 of 1926), shall stand repealed in the
territory for which the State Bar Council is
constituted.
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34
(2) On the date on which Chapter III comes into
force, the following shall stand repealed, namely:--
(a) sections 6, 7, 18 and 37 of the Legal
Practitioners Act, 1879 (18 of 1879), and so much
of sections 8, 9, 16, 17, 19 and 41 of that Act as
relate to the admission and enrolment of legal
practitioners;
(b) sections 3, 4 and 6 of the Bombay Pleaders
Act, 1920 (Bombay Act 17 of 1920);
(c) so much of section 8 of the Indian Bar
Councils Act, 1926 (38 of 1926), as relates to the
admission and enrolment of legal practitioners;
(d) the provisions of the Letters Patent of
any High Court and of any other law in so far as
they relate to the admission and enrolment of
legal practitioners.
(3) On the date on which Chapter IV comes into
force, the following shall stand repealed, namely:--
(a) sections 4, 5, 10 and 20 of the Legal
Practitioners Act, 1879 (18 of 1879), and so much
of sections 8, 9, 19 and 41 of that Act as confer on
legal practitioners the right to practice in any court
or before any authority or person;
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35
(b) sections 5, 7, 8 and 9 of the Bombay
Pleaders Act, 1920 (Bombay Act 17 of 1920);
(c) section 14 of the Indian Bar Councils Act,
1926 (38 of 1926) and, so much of sections 8 and 15
of that Act as confer on legal practitioners the right
to practice in any court or before any authority or
person;
(d) the Supreme Court Advocates (Practice in
High Courts) Act, 1951 (18 of 1951);
(e) the provisions of the Letters Patent of
any High Court and of any other law conferring
on legal practitioners the right to practice in
any court or before any authority or person.
(4) On the date on which Chapter V comes into
force, the following shall stand repealed, namely:--
(a) sections 12 to 15 (inclusive), sections 21 to
24 (inclusive) and sections 39 and 40 of the Legal
Practitioners Act, 1879 (18 of 1879), and so much
of sections 16, 17 and 41 of that Act as relate to the
suspension, removal or dismissal of legal
practitioners;
(b) sections 24 to 27 (inclusive) of the Bombay
Pleaders Act, 1920 (Bombay Act 17 of 1920);
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36
(c) sections 10 to 13 (inclusive) of the Indian
Bar Councils Act, 1926 (38 of 1926);
(d) the provisions of the Letters Patent of
any High Court and of any other law in so far as
they relate to the suspension, removal or
dismissal of legal practitioners.
(5) When the whole of this Act has come into
force--
(a) the remaining provisions of the Acts
referred to in this section which do not stand
repealed by virtue of any of the foregoing
provisions of this section (except sections 1, 3 and
36 of the Legal Practitioners Act, 1879) (18 of
1879) shall stand repealed;
(b) the enactment specified in the Schedule
shall stand repealed to the extent mentioned
therein.
26. 1962 The Bar Council of India Rules were enacted
under the Advocates Act of 1961. As per the
definition set out in Part I (Definitions) (b), an
advocate means an advocate enrolled in any roll
under the provisions of the Advocates Act. Part VI,
Chapter II, Section II, Rule 19 of the Rules states
that : An advocate shall not act on the instructions
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37
of any person other than his client or his
authorized agent. (Explanatory Note : Authorised
agent cannot include another pleader, since
Rule 2 has defined agents in Rule 2(a) and Rule
2(b), and furthermore, Rule 3 also has
contextually defined agent.)
27. 17-04-1962 The Bar Council of West Bengal came into being.
28. 1973 The Code of Criminal Procedure, 1973 was
enacted. It used a different meaning for the word
pleader. Its Section 2(q) reads as follows : 2(q) :
"pleader", when used with reference to any
proceeding in any Court, means a
person authorised by or under any law for the time
being in force, to practise in such Court, and
includes any other person appointed with the
permission of the Court to act in such proceeding;
29. 1976 The Advocates (Amendment) Act was passed,
whereby the special provisions of Section 31
(relating to attorneys) were deleted.
30. 1992 In a judgment of the Bombay High Court in the
case of ONGC vs. Offshore Enterprises, Inc. (AIR
1993 Bomb 217), in a matter argued by many legal
luminaries (including Mr. A. P. Shah, as he was
then known, now Hon'ble Chairman of the Law
Commission, acting then as President of the
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38
Maharashtra Bar Council, and Mr. G. E. Vahanvati,
etc), it was held that if a lawyer accepted a brief to
act as Attorney of a client (i.e. as his agent
within the meaning of Order III Rule 1), then he
could not act also simultaneously as his advocate
or pleader.
Therefore, if an advocate signs a Vakalatnaama in
favour of another advocate, means that he has
acted on his own Vakalatnaama as if he is the
agent or power-of-attorney of the client, rather
than his advocate.
This being the case, if one goes by the usual type
of language used in most Vakalatnaamas in Delhi
or Kolkata today, most advocates, if they actually
exercise the power shown therein (i.e. of engaging
another advocate) would have, perhaps, accepted
the brief to actually be the agents / power-of-
attorney holder of their clients, and not as their
advocates.
The Bombay High Court, by virtue of its Rules
framed under Section 34(1) of the Advocates Act,
has specifically prescribed the Model Form of
Vakalatnaama for its Courts.
31. 15-06-2011 Section 30 of the Advocates Act was notified and
went into force. With this, all the provisions of the
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39
aforesaid Act now stand as in force, thus, by
virtue of Section 50(2)(d), Section 50(3)(e) and
Section 50(4)(d), repealing all contrary provisions
that may have evolved under, inter alia, Letters
Patent as well.
SPECIFIC FACTS OF THE PRESENT MATTER :
8. That Petitioner No. 1 has been engaged by Petitioner Nos. 2-3 to act in
their matters which are pending before this Hon'ble Court. Accordingly, in
discharge of his professional duties, he came to the Calcutta High Court to
argue some matters relating to Petitioner No. 2 on 09-01-2015 i.e. CP No.
33 of 1988, a matter specially assigned to the Court of Hon'ble Mr. Justice
Anirudh Bose, and some other matters.
9. That to his shock, during the hearing, instead of allowing the long-pending
matter to proceed on its merits, Respondent Nos. 5-7 tried their level best
to thwart his right to practice his profession, by raising all sort of frivolous
and vexatious objections to his appearance in the Court as an advocate.
Chiefly, they objected that as per Chapter I of the Original Side Rules, he
could not practice on the Original Side of this Hon'ble Court, on the
grounds that his name had not been inserted in the Register required to be
maintained by Respondent No. 2 [Ld. Registrar (Original Side)] under Rule
2 of the Original Side Rules.
10. That as a consequence, they unreasonably urged the Honble Court to deny
the Petitioner No. 1 the right of audience, even though the Honble court,
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40
by virtue of the proviso to Rule 5 of the Original Side Rules, is empowered
to allow audience to any other person to appear before it in a particular
cause. Leave is craved to produce copies of the orders passed in CP No. 33
of 1988 from 09-01-2015 to 15-01-2015 at the time of hearing, as they
reflect the stubborn insistence of these individuals that as per the Original
Side Rules, the Petitioner No. 1 could not appear on the Original Side of
this Hon'ble Court.
11. That this objection was raised (and continued be raised) despite the
Petitioner No. 1 informing the Honble Court that Section 30 of the
Advocates Act had been notified with effect from 15-06-2011, and
consequently, he had a fundamental right guaranteed by Article 19(1)(g)
of the Constitution to practice before this Hon'ble Court. He further
pleaded that even otherwise, he had complied with the requirements of
Rule 4 of the Original Side Rules, no matter how unreasonable and
outdated as it may be. In evidence of his compliance, a copy of his letter
dated 09-01-2015 filed with Ld. Registrar (Original Side) was handed over
to the Honble Court, and a true typed copy of the same is appended
hereto, and is marked as Annexure 2.
12. That the Petitioner No. 1 further urged the Honble Court that in order to
allow retention of focus on the main issue before the Honble court and
not allow diversionary tactics of Respondent Nos. 5-7 to rule the day, it
may be pleased to exercise its powers in terms of the proviso to Rule 5.
However, no headway could be made owing to the disruptive manner of
urging of their submissions by Respondent Nos. 5-7.
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41
13. That subsequently, pursuant to Petitioner No. 1 subjecting these Rules
cited by the Respondent Nos. 5-7 to obstruct Petitioner No. 1 from
discharging his professional duties both to the Honble Court as well as to
Petitioner No. 2 to 3 to closer scrutiny, the Petitioner No. 1 has found that
it is, in fact, Respondent Nos. 4-7 who are in blatant breach of the same
Rules that they attempted to enforce against Petitioner No. 1, even if it
meant obstructing his fundamental right granted to him by virtue of
Section 30 of the Advocates Act read with Section 50 of the same Act to
practice his profession before any Court in India, even before the Hon'ble
High Court of Calcutta.
14. In fact, unlike their allegation of purely technical issues against the
Petitioner No. 1, their own breaches are of such a heinous nature that they
do not constitute merely a clerical omission or inadvertent oversight by an
otherwise law-abiding person any more, but constitute virulently-potent
criminal contempt of court that is being consciously and deliberately
committed day-in and day-out by Respondent No. 4 (Khaitan & Company)
in practically every court of the Hon'ble High Court of Calcutta.
15. That in protest against such patently-illegal conduct by these
Respondents, Petitioner No. 1 caused a letter dated 09-01-2015 to be filed
with Respondent No. 2 [Ld. Registrar (Original Side)]. A copy of the same
is appended hereto, and is marked as Annexure 3.
16. That vide means of this detailed letter, Petitioner No. 1 pointed out as
many as 7 gross violations of the Rules by Respondent No. 4, and by
Respondent No. 5 to 7, violations which are nit minor, or technical in
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42
nature. The petitioner craves leave to refer and rely upon each
submission made in the aforesaid letter as if reproduced herein in its
entirety, which is not being done so merely to maintain brevity in the
present petition, the onus being on the Respondents to deal with each and
every averment made therein so that they do not paint themselves into a
corner of evasive denial.
17. That despite serving letter dated 09-01-2015 on Respondent No. 2 [Ld.
Registrar (Original Side)], pointing out the blatant, even unconscionable
violations of law by Respondent No. 4 and its associates, Respondent No.
2 [Ld. Registrar (Original Side)] has not seen it fit to take any action as yet,
except to issue a formal, written confirmation to Petitioner No. 1 vide
letter dated 16-01-2015 acknowledging, inter alia, that the persons
appearing for the aforesaid Khaitan & Co in CP No. 33 of 1988 (vis.
Respondent Nos. 5 to 8) are not partners of the firm. A copy of this letter
dated 16-01-2015 is appended hereto, and is marked as Annexure 4.
18. That this inaction is shocking, since one of the areas of abuse is that Rule
9(g) stipulates as follows :
In every case when a partner of a firm of advocates acting on the
Original Side signs any document or writing on behalf of the firm, or
when a sole proprietor of a firm signs a document or writing on
behalf of the firm, he shall do in the name of the firm and shall
authenticate the same by affixing his own signature as a partner or as
a proprietor, as the case may be.
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In blatant violation of this rule, it appears that Respondent No. 4, in order
to achieve its own convebience even if this be by deceiving the Hon'ble
courts, has been scribbling the phrase Khaitan & Co at the place where
the filing individual [who can only be a partner of the firm, and duly
registered as such as per Rule 2 read with Rule 9(d)] is supposed to affix
his own signature.
Therefore, it could very well be that it is Secretaries / Clerks / peons /
drivers of Respondent No. 4 who may have been signing the pleadings
filed before this Honble Court. This, apart from constituting criminal
contempt of court, also constitutes creation of false evidence, and the
pleadings as filed constitutes forgery in as much as it constitutes
creation of a false document within the meaning of the 2 words as used
in Section 463 and 464 of the Indian Penal Code, as they have purported to
create a document (the filing-eligible pleading) that meets the first
description of a false document as set out in Section 464 of the Indian
Penal Code, which says that a person is said to make a false document
when he dishonestly or fraudulently makes, signs, seals or executes a
document (or part of a document), or makes any mark denoting the
execution of a document, with the intention of causing it to be believed
that such document (or part of a document) was made, signed, sealed or
executed by (or by the authority of) a person by whom (or by whose
authority) he knows that it was not made, signed, sealed or executed,
or.
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This would be clear from a sample filing done by Khaitan & Co in the
Hon'ble High Court of Calcutta, a copy of which is appended hereto, and
marked as Annexure 14.
In this regard, it is relevant to highlight even if an advocate working with
Khiatan & Company scrawled the phrase Khaitan & Company, a forgery
may have come into existence in light, inter alia, of Explanation I to
Section 464, which stipulates that A man's signature of his own name
may amount to forgery, read with its Illustration (a), which states that A
signs his own name to a bill of exchange, intending that it may be believed
that the bill was drawn by another person of the same name. A has
committed forgery.
This is because the signing advocate knows that the signature on the
pleading is that to be of a Partner only, and by executing the phrase
Khaitan & Co in his own handwriting in the pleading where the partner
is to sign, he has purported that the pleading has been signed by a Partner
of Khaitan & Co. in order to render the pelading or motion eligible to be
filed in this Hon'ble Court and placed for judicial consideration. That being
so, such reprehensible conduct squarely meets the definition of creation of
a false document within the meaning of Section 464 of the Indian Penal
Code, and therefore, of a forgery within the meaning of Section 463 of
the same Code, and both the executant and all the partners of Khaitan &
Company at the relvant time(s) are liable for criminal prosecution for this
reprehensible act of forgery, for a violatiom of the Indian Penal Code, as
well as for criminal contempt under the Contempt of Courts Act (1971)
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read with Article 215 of the Constitution, as well as for blatant
professional misconduct under the Bar Council Rules.
The provisions of Section 463 and 464 of the Indian Penal Code are
reproduced for the ease of referral below :
463. Forgery.--Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. 464. Making a false document.--A person is said to make a false document- First.-Who dishonestly or fraudulently makes, signs, seals or executes a document (or part of a document), or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document (or part of a document) was made, signed, sealed or executed by (or by the authority of) a person by whom (or by whose authority) he knows that it was not made, signed, sealed or executed, or Secondly.-Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration. Illustrations (a) A has a letter of credit upon B for rupees 10,000, written by Z. A, in order to defraud B, adds cipher to the 10,000, and makes the sum 1,00,000 intending that it may be believed by B that Z so wrote the letter. A has committed forgery. (b) A without Z's authority, affixes Z's seal to a document purporting to be a conveyance of an estate from Z to A, with the intention of selling the estate to B and thereby of obtaining from B the purchase-money. A has committed forgery.
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(c) A picks up a cheque on a banker signed by B, payable to bearer, but without any sum having been inserted in the cheque. A fraudulently fills up the cheque by inserting the sum of ten thousand rupees. A commits forgery. (d) A leaves with B, his agent, a cheque on a banker, signed by A, without inserting the sum payable and authorizes B to fill up the cheque by inserting a sum not exceeding ten thousand rupees for the purpose of making certain payments. B fraudulently fills up the cheque by inserting the sum of twenty thousand rupees. B commits forgery. (e) A draws a bill of exchange on himself in the name of B without B's authority, intending to discount it as a genuine bill with a banker and intending to take up the bill on its maturity. Here, as A draws the bill with intent to deceive the banker by leading him to suppose that he had the security of B, and thereby to discount the bill, A is guilty of forgery. (f) Z's will contains these words-"I direct that all my remaining property be equally divided between A, B and C." A dishonestly scratches out B's name, intending that it may be believed that the whole was left to himself and C. A has committed forgery. (g) A endorses a Government promissory note and makes it payable to Z< for his order by writing on the bill the words "Pay to Z or his order" and signing the endorsement. B dishonestly erases the words "Pay to Z or his order", and thereby converts the special endorsement into a blank endorsement. B commits forgery. (h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his estate, executes a conveyance of the same estate to B, dated six months earlier than the date of the conveyance to Z, intending it to be believed that he had conveyed the estate to B before he conveyed it to Z. A has committed forgery. (i) Z dictates his will to A. A intentionally writes down a different legatee named by Z, and by representing to Z that he has prepared the will according to his instructions, induces Z to sign the will. A has committed forgery. (j) A writes a letter and signs it with B's name without B's authority, certifying that A is a man of good character and in distressed circumstances from unforeseen misfortune, intending by means of such letter to obtain alms from Z and other persons. Here, as A made a false document in order to induce Z to part with property, A has committed forgery. (k) A without B's authority writes a letter and signs it in B's name certifying to A's character, intending thereby to obtain employment under Z. A has committed forgery inasmuch as he intended to deceive Z by the forged certificate, and thereby to induce Z to enter into an express or implied contract for service.
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Explanation I. - A man's signature of his own name may amount to forgery. Illustrations (a) A signs his own name to a bill of exchange, intending that it may be believed that the bill was drawn by another person of the same name. A has committed forgery. (b) A writes the word "accepted" on a piece of paper and signs it with Z's name, in order that B may afterwards write on the paper a bill of exchange drawn by B upon Z, and negotiate the bills as though it had been accepted by Z. A is guilty of forgery; and if B, knowing the fact, draws the bill upon the paper pursuant to A's intention, B is also guilty of forgery. (c) A picks up a bill of exchange payable to the order of a different person of the same name. A endorses the bill in his own name, intending to cause it to be believed that it was endorsed by the person to whose order it was payable; here A has committed forgery. (d) A purchases an estate sold under execution of a decree against B. B, after the seizure of the estate, in collusion with Z, executes a lease of the estate to Z at a nominal rent and for a long period and dates the lease six months prior to the seizure, with intent to defraud A, and to cause it to be believed that the lease was granted before the seizure. B, though he executes the lease in his own name, commits forgery by antedating it. (e) A, a trader, in anticipation of insolvency, lodges effects with B for A's benefit, and with intent to defraud his creditors; and in order to give a colour to the transaction, writes a promissory note binding himself to pay to B a sum for value received, and antedates the note, intending that it may be believed to have been made before A was on the point of insolvency. A has committed forgery under the first head of the definition. Explanation 2.-The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. Illustration A draws a bill of exchange upon a fictitious person, and fraudulently accepts the bill in the name of such fictitious person with intent to negotiate it. A commits forgery.
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19. That seeing these Respondents using their good offices in influencing
officials of the Hon'ble High Court of Calcutta (as was self-evident from
the fact that no action or tardy action was being taken on his letter
dated 09-01-2015), the Petitioner No. 1 addressed a letter on 19-01-2015
to Honble the Chief Justice, urging her to issue suitable directions so that
the law may be enforced uniformly, but more so that the criminal
contempt taking place in CP No. 33 of 1988, as well as pleadings being
filed in numerous other proceedings, would be arrested. A copy of the
same is appended hereto, and is marked as Annexure 5.
20. That thereafter, these persons continued to use their pernicious influence
at all levels in the Hon'ble High Court to see to it that 4 applications
drafted and being filed by Petitioner No. 1 on behalf of Petitioner No. 2 in
the Hon'ble Calcutta High Court were not being accepted on one frivolous
pretext or another since Friday, 16-01-2015, thus, to ensure that they
could not be listed on the next available Senior Citizens day, which is 22-
01-2015.
21. That no doubt, part of the motivation for their obstructive tactics was
because 2 out of these 4 applications were extremely injurious to their
own position, one seeking initiation of criminal contempt proceedings (for
their reprehensible resort to approbate and reprobate on a point of law,
as counsels), and the 2nd seeking initiation of criminal contempt
proceedings against them, as well as debarring them from any right of
audience or practice at least in CP No. 33 of 1988, because of their
multiple infractions of the Original Side Rules. A copy of the former
application with its Judges Summons is appended hereto, and is colly.
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marked as Annexure 6, and a copy of the latter application with its Judges
Summons is appended hereto and is colly. marked as Annexure 7. To the
former is appended a copy of Legal Notice issued by Petitioner No. 1 to
Respondent No. 4 and to its clients dated 11-01-2015, transmitted also by
email on 13-01-2015, which sets out the manner in which this law firm
has patently been acting in furtherance of a criminal purpose, and playing
a colossal fraud on the Courts, right up to the Hon'ble Supreme Court.
22. That aggrieved by the behind-the-scenes manipulations being resorted
to by people associated with Respondent No. 4 in trying to obstruct listing
of these 4 applications, the Petitioner No. 1 addressed another letter dated
20-01-2015 to Ld. Registrar (Original Side), putting all these
developments on record. A copy of this letter is appended hereto, and is
marked as Annexure 8.
23. That despite all these representations relating to the multiple infractions
of the law, Respondent No. 4-7 are continuing to practice (rather, are
being permitted to continue to practice) on the Original Side, even when
they patently have no right to do so.
24. That their insisting on doing so is also an interference in the due course of
judicial proceedings, and also, an interference in the administration of
Justice, which constitute criminal contempt under the Contempt of Courts
Act and Article 215 of the Constitution.
RATIONALE BEHIND THE NECESSITY OF INCLUSION OF THE NAMES
OF ALL THE PARTNERS IN THE NAME OF A LAW FIRM
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25. That it gets worse : Respondent No. 4 is violating the very rationale of
why, even as per international norms followed world-wide even today, the
name of a law firm must be that of its partner(s). The rationale is that the
firm must be associated indelibly in the perception of the public with the
actual advocate(s) behind the firms name. The petitioner appends as
Annexure 9 a very recent news article, in which there is a reference to
Khaitan, but without setting out which particular Khaitan firm : whether
it is Khaitan & Co, or whether it is Khaitan and Khaitan, or whether
whether it is O. P. Khaitan & Co. Even though Petitioner No. 1 is a lawyer,
even he cannot figure it out automatically.
26. That this incident, as an example of many other similar incidents, shows
how important it is to have the name of the firm associated with the
individual(s) behind it, as a deviation from this well-settled norm not only
misleads the public, but also, inter alia, enables one law firm to unduly
encash on the goodwill, reputation and frame of another, as well as vice
versa, whereby the disrepute brought upon one law firm may unfairly be
attached to another.
27. That the latter aspect of the matter (i.e of one bringing disrepute to
another) is borne out from another incident, which has now come to be
known as the Choppergate Scam. In that incident, there has been
reported the recent arrest of one Mr. Gautam Khaitan. A very large
number of people believe this gentleman to be associated with
Respondent No. 4, and it is unknown even to petitioner No. 1 (who is in
the same profession) as to whether the aforementioned individual is
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associated with Respondent No. 4, or with some other law firm with the
name Khaitan in it.
28. That this is why, in the West, the name of the firm is usually the surname
of all the various partners, even if the name of the firm becomes long and
unwieldy. As an example, there is a law firm in the US which has the
following name, which has as many as 9 partners names in it : Ziffren,
Brittenham, Branca, Fischer, Gilbert-Lurie, Stiffelman, Cook, Johnson, Lande
& Wolf. (http://blogs.wsj.com/law/2007/01/03/the-longest-law-firm-
name-ever-part-ii/). Another example : Butlwer, Wooten, Cheeley and
Peak LLP. (Source : http://www.butlerwooten.com/Car-Accidents/).
Another example : Wahn, Mayer, Smith, Creber, Lyons, Torrance &
Stevenson. (Source : : http://www.slaw.ca/2010/06/13/law-firm-
names-the-long-and-the-short-of-it/.) Yet another example : Smith Lyons
Torrance Stevenson & Mayer.
29. That even the name of the law firm set out in the famous Marx Brothers
story, in which there are 5 members of a family called Hungadunga, in
which 4 members were practicing law together in a law firm : their law
firm is called Hungadunga, Hungadunga, Hungadunga, Hungadunga, and
McCormack.
30. That similarly, if a lawyer has the same surname as another well-known
lawyer, then the firm has to have his full name, and not just his surname.
For example, if there is an advocate by the name of, say, Ram Lal, so long
as there is no other lawyer by the name of Lal, merely putting Lal in
the name of the firm may perhaps suffice in terms of compliance with this
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Rule. But if there is another Lal, then this Ram Lal would be required to
include his full name Ram Lalin the name of his firm, to distinguish it
from that of the other Lal.
31. That the relevance of the foregoing submission is that in the legal
profession, there are at least 20 individuals with the name of Khaitan
practicing the law.
32. That in light of this fact, the law requires that should any one or more of
them decide to partner with other persons to form a law firm, the name of
the law firm must carry the full name of that Khaitan individual(s) so as
to distinguish itself / himself from the other Khaitans who also are
active in the profession.
33. That the relevance of the foregoing argument also is that in 2008, the
partners of Respondent No. 4 (Khaitan & Company) were apparently
the following 14 individuals, if one goes by the names printed on their
letterhead, a copy of which is appended hereto and is marked as
Annexure 12 :
1. Pradip Kumar Khaitan
2. Ram Niranjan Jhunjhunwala
3. Purushottam Lal Agarwal
4. Ravi Kulkarni
5. Nand Gopal Khaitan
6. Gouri Shankar Asopa
7. Om Prakash Agarwal
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8. Padam Kumar Khaitan
9. Om Prakash Jhunjhunwala
10. Rajiv Khaitan
11. Arvind Kumar Khunkhunwala
12. Aniket Agarwal
13. Haigreve Khaitan
14. Rabindranath Jhunjhunwala
34. Whereas, of these 14 names, only 2 names stood registered with Ld.
Registrar (Original Side) in February 1977, on which date this same firm,
as per its application filed with Respondent No. 2, had only 8 partners.
35. That with the change of partners not having been informed to Respondent
No. 2, it is clear that this law firm is, itself, in very material breach of Rule
9 (d) of the Original Side Rules.
36. This being so, this firm has ceased to comply with the Rules framed by this
Hon'ble Court, thus, warranting action against it under Rule 16, including
debarring them from practice on the Original Side forthwith.
37. That action is warranted all the more, given that this firm has seen it fit to
interfere with the right of another advocate under the umbrella of these
very Rules, speciously arguing that Rule 2(i) prevailed over Section 30 of
the Advocates Act, 1961.
38. That the purpose of recounting the stand of the Respondents in CP No. 33
of 1988 is not so as to foolishly enable them to get a handle against the
Petitioner No. 1, by alleging spite and/or vendetta against him as the
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prime motivation(s) for filing the present petition, but to submit that if
they are so conscious of the Rules, to the extent where they, as self-
anointed Guardian of those Rules, have attempted to unreasonably
interfere with the fundamental right of another advocate by citing those
Rules, then this constitutes their own admission that those Rules apply,
proprio vigore, against them also. In other words, before pointing their
own learned fingers at others, they would have done well to have
remembered the old adage, namely, that one must be careful before
pointing a finger at another, lest three of your own fingers point back at
you.
39. That Respondent No. 4, and Respondent No. 5 to 7 have forgotten that the
burden of lawful conduct is higher on Members of the Bar as compared to
ordinary citizens. Being one of the more prominent law firms in the
country, in which position they should be setting examples for others to
emulate, instead, it is wrecking the system from within.
40. That from a conversation amongst advocates over-heard by Petitioner No.
1 in the corridors of the the Hon'ble Calcutta High Court on 13-01-2015,
he has been given to understand, and which he verily believes, that even
the oaths sworn by their clients are false inasmuch as, invariably, the
execution is never at the Court House, even though the Oath
Commissioner has certified that it has been Sworn Before me in the
Court House. This can very easily be probed by extracting the CCTV
footage opposite to where the Oath Commissioner sits for those dates that