Case: M/s. Advanta India Ltd Vs. B.N. Shivanna

assist the defense set up by him or would controvert the claim made by the complainant in this petition. The respondent in this case, except making all efforts to stall the proceedings has not done the positive known to law to disprove the case set up against him.? 17. It would be pertinent to mention that even in the appeal filed by the respondent before the BCI, he had raised this ground. After considering the same, in the light of arguments of both sides and the material placed on the record, the BCI specifically rejected this contention, finding no merit therein, in its order dated September 10, 2011 and also affirmed the findings recorded by the State Bar Council that respondent had committed a serious professional misconduct by revisiting the matter as 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 defense and the learned Lower D.C. hastily and in a speedy manner without giving proper opportunity to the appellant had decided the case. After going through the proceedings, we are satisfied that ample opportunities were given to appellant for cross-examination of the complainant as well as tendering evidence in his favour. From the proceedings and conduct of the appellant it is revealed that he was found delaying the proceedings on one pretext or other, therefore, the learned Lower Disciplinary Committee has rightly closed the right of cross-examination and further found that inspite of providing sufficient opportunities to tender his evidence in defense – the appellant to do so. Moreover, the learned Lower D.C. has also dealt with this issue elaborately in paragraph 9 of the judgment and we find no infirmity in it. Thus, the objection raised by the appellant in this context has no substance.? 18. It is clear from the above that the issue as to whether there was any denial of principles of natural justice or fair trial in closing the cross-examination of PW-1 or whether this course of action was right on the part of the State Bar Council after giving sufficient opportunities to the respondent, was specifically dealt with by the BCI and authoritatively rejected while deciding the appeal of the respondent. It arrived at a categorical and definite conclusion that the respondent was given sufficient opportunities to cross-examine the complainant and it is the respondent who was at fault in failing to avail the said opportunities as he was found delaying the proceedings on one pretext or the other. It clearly follows that the BCI found fault with the respondent whose attitude was non-participatory and he was avoiding attending the hearings on false pretext. 19. When we examine the review power of the BCI, keeping in view the aforesaid factual matrix in mind, the necessary consequence would be to hold that in such a situation revisiting the issue on merits again on the pretext that the respondent was not granted proper opportunities to cross-examine PW-1 is clearly beyond review jurisdiction. No doubt, in view of dicta of this Court in O.N. Mohindroo case, the review power of the Disciplinary Committee/BCI is not to be confined within the narrow parameters laid down in Section 114 and Order 47 Rule 1, CPC. At the same time, the power also cannot be extended to the extent that the reviewing authority becomes appellate authority over its own order passed earlier. The liberty taken by the BCI outstrips even the wider amplitude and greater discretion that is granted to the Bar Council. It has reviewed its own finding of fact and overturned the same on the same material which was produced earlier and going by the same arguments which were advanced earlier. 20. After going through the record, we find that the BCI has shown undue indulgence to the respondent by allowing him to take advantage of his own wrong, in the guise of exercising its review power. It is a case of Nullus Commodum Capere Potest De Injuria Sua Propria meaning thereby a party cannot take advantage of its own wrong. This maxim is explained in Eureka Forbes Limited v. Allahabad Bank and Ors. (2010) 6 SCC 193 )in the following manner: ?The maxim nullus commodum capere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations.? 21. It was argued before us by the learned counsel for the appellant that it is a gross case of misconduct committed by the respondent. The respondent has tarnished the image of a noble profession by indulging into cheating and fraud. He duped the appellant by pretending that various criminal cases were filed against the appellant and there was inherent threat of arrest of the appellant therein. On the basis of this cooked up story of fictitious cases, the responded extracted huge amounts of money from the appellant by adopting illegal means. In the process, in order to project semblance of those cases, the respondent fabricated number of documents. Ultimately, it was found that no such criminal cases were filed by the farmers against the appellant. The respondent stands convicted by the trial court in criminal proceedings. He had even the audacity of producing fabricated copy of the order of the High Court, for which the High Court of Karnataka initiated contempt proceedings against him and in those contempt petitions, he is found guilty by the orders dated August 18, 2004 passed by the High Court and is sentenced to undergo 6 months? simple imprisonment along with fine of Rs. 2000/-. 22. However, we refrain from making any comments as the appeal of the respondent against his conviction is pending before the appellate court and, moreover, those aspects would have been relevant in deciding Civil Appeal No. 273 of 2012. 23.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Taking umbrage under the aforesaid dicta, the impugned order proceeds to hold that if a manifest wrong has been done, it is never too late to undo the wrong, since the factors that are placed on civil courts on their review powers are absent in review powers of the Disciplinary Committee, in terms of Section 44 and Section 48AA of the Advocate?s Act,There cannot be any doubt about the aforesaid proposition stated by the BCI. However, its application on the facts of the present case is clearly unsustainable. We are of the opinion that the BCI has, in fact, gone much beyond the scope of review powers, even when these are liberally construed. Our reasons for this conclusion are discussedWhen we examine the review power of the BCI, keeping in view the aforesaid factual matrix in mind, the necessary consequence would be to hold that in such a situation revisiting the issue on merits again on the pretext that the respondent was not granted proper opportunities to1 is clearly beyond reviewAfter going through the record, we find that the BCI has shown undue indulgence to the respondent by allowing him to take advantage of his own wrong, in the guise of exercising its review power. It is a case of Nullus Commodum Capere Potest De Injuria Sua Propria meaning thereby a party cannot take advantage of its ownHowever, we refrain from making any comments as the appeal of the respondent against his conviction is pending before the appellate court and, moreover, those aspects would have been relevant in deciding Civil Appeal No. 273 of 2012.