M/S. ADVANTA INDIA LTD.versusB. N. SHIVANNA

814                      [2018]REPORTS
               SUPREME COURT    2 S.C.R. 814               [2018] 2 S.C.R.


A                        M/S. ADVANTA INDIA LTD.

                                        v.

                               B. N. SHIVANNA

B                       (Civil Appeal No. 11113 of 2016)

                             FEBRUARY 21, 2018

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

C            Advocates Act, 1961– s.48AA – Bar Council of India (BCI) –
      Power of review – Exercise of – Complaint by appellant against
      advocate alleging commission of serious acts of professional
      misconduct with State Bar Council – Disciplinary Committee found
      respondent guilty of misconduct – Order by the Bar Council whereby
      respondent debarred from practice for life and his name removed
D     from the rolls of the Bar Council – Appeal before BCI by respondent
      – Disciplinary Committee agreed with the finding, however reduced
      the punishment – Respondent debarred for 18 months along with
      fine of Rs. 25,000/- – Review petition by respondent – Allowed by
      the Bar Council directing fresh consideration of the matter – On
E     appeal, held: When the review power of the BCI is examined, in
      view of the facts, 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 – Review power
      of the Disciplinary Committee/BCI is not to be confined within the
      narrow parameters laid down in s.114 and Or. XLVII r 1 CPC – At
F     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 – BCI 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 – BCI showed undue indulgence to the respondent by
G
      allowing him to take advantage of his own wrong, in the guise of
      exercising its review power – Party cannot take advantage of its
      own wrong – More so, respondent has tarnished the image of a
      noble profession by indulging into cheating and fraud – Thus, the
      order passed by the Disciplinary Committee of the BCI is set aside
H     and its earlier order is revived.
                                     814
        M/S. ADVANTA INDIA LTD. v. B.N. SHIVANNA                        815


      Allowing the appeal, the Court                                    A

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

      1.2 The appellant had raised a preliminary issue questioning      D
the maintainability of the review petition, inter alia, on the ground
that scope of review jurisdiction was very limited. This objection
has been turned down by the BCI with the remarks that review
jurisdiction of the Disciplinary Committee of the Bar Council
under the Act is wider than the review jurisdiction of a court
                                                                        E
under 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 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       F
powers are absent in review powers of the Disciplinary
Committee, in terms of Section 44 and Section 48AA of the
Advocate’s Act, 1961. There cannot be any doubt about the said
proposition stated by the BCI. However, its application on the
facts of the instant case is clearly unsustainable. BCI has, in fact,
gone much beyond the scope of review powers, even when these            G
are liberally construed. [Paras 14-15][ 823-G-H; 824-A-B]

       1.4 The said ground of not allowing the respondent to
cross-examine PW-1 was not taken in the review petition for the
first time. It was argued even before the Disciplinary Committee
                                                                        H
816            SUPREME COURT REPORTS                      [2018] 2 S.C.R.


A     of the State Bar Council. The State Bar Council considered the
      argument and rejected the same after it found that the respondent
      had intentionally adopted dilatory tactics. It specifically held that
      cross-examination of the complainant was closed after giving
      adequate opportunities to the respondent. However, every time,
      when the case was fixed for cross-examination of PW-1, the
B
      respondent would send the proxy counsel with a medical
      certificate stating that he was unable to present himself. The State
      Bar Council even found discrepancies and inherent contradictions
      in the medical certificates. [Para 16][824-C-E]

C            1.5 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
D     respondent had committed a serious professional misconduct by
      revisiting the matter as an appellate authority. [Para 17][825-A-
      B]

            1.6 The issue as to whether there was any denial of
      principles of natural justice or fair trial in closing the cross-
E
      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
F     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
G
      hearings on false pretext. [Para 18][825-F-H]

            1.7 When the review power of the BCI is examined, keeping
      in view the said factual matrix in mind, the necessary consequence
      would be to hold that in such a situation revisiting the issue on
H     merits again on the pretext that the respondent was not granted
        M/S. ADVANTA INDIA LTD. v. B.N. SHIVANNA                       817


proper opportunities to cross-examine PW-1 is clearly beyond           A
review jurisdiction. No doubt, 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
                                                                       B
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. It is
found that the BCI has shown undue indulgence to the respondent        C
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. [Paras 19-20][826-A-E]

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

       1.8 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
                                                                       E
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 respondent 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       F
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
initiated contempt proceedings against him and in those contempt
                                                                       G
petitions, 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 the
Disciplinary Committee of the BCI is set aside. With setting aside     H
818            SUPREME COURT REPORTS                           [2018] 2 S.C.R.


A     of order dated July 11, 2015 passed by the Disciplinary Committee
      of BCI, its earlier order dated September 10, 2011 stand revived.
      However, to the extent the said order reduces the punishment
      that was awarded to the respondent, same shall be subject to the
      outcome of Civil Appeal No. 273 of 2012, in case the same is
      revived by the appropriate Bench and it decides to hear that
B
      appeal 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.

                               Case Law Reference
C
            [1971] 2 SCR 11               referred to             Para 13

            [2010] 5 SCR 990              referred to             Para 20

            CIVIL APPELLATE JURISDICTION : Civil Appeal No 11113
D     of 2016.

            From the Judgment and Order dated 11.07.2015 of the Disciplinary
      Committee of the Bar Council of India in Review Petition No. 7 of 2011
      in DC Appeal No.59 of 2005.
E           B.K. Sampath Kumar, Balaji Srinivasan, Ms. Vaishnavi
      Subrahmanyam, 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 to
      be determined in this appeal pertains to the power of review with the
      Disciplinary Committee of the Bar Council of India (BCI). On a complaint
      filed by the appellant against the respondent, who is an Advocate, alleging
      the commission of serious acts of professional misconduct, with the
G     Karnataka State Bar Council, the complaint was referred to its
      Disciplinary Committee. It examined the matter after giving due
      opportunity to both the parties to lead their respective evidences and
      held the respondent guilty of the charges of misconduct levelled against
      him. As a sequitur, the order dated July 31, 2005 was passed by the

H
         M/S. ADVANTA INDIA LTD. v. B.N. SHIVANNA                              819
                     [ A. K. SIKRI, J.]

State Bar Council whereby the respondent was debarred from practicing          A
for life and his name was also removed from the rolls of the Bar Council.

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

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

        As per the complaint of the appellant company, it is engaged in        D
the research, production and distribution of seeds and hybrids such as
sunflowers, maize, cotton, rice, bajra and sorghum. The respondent
herein has a long history with the appellant company who initially joined
them as a Marketing Executive in 1998. However, he left that job after
a brief period and then returned in the capacity of Legal Counsel.
According to the appellant, it was at this juncture that devised an            E
elaborate ploy to swindle the appellant company out of lakhs of rupees.
It all began when a Police Constable came to the appellant’s office
multiple times, beginning in September, 2000, claiming that he was there
to execute warrants against the Managing Director, CFO and other top
executives of the appellant company. The appellant automatically called        F
their legal counsel, i.e. the respondent herein, to deal with the issue. The
respondent had a long conversation with the Police Constable at the end
of which he informed the appellant that numerous farmers had apparently
filed complaints against the company and it was these large numbers of
complaints the Police Constable was concerned with. Each visit of the
Constable’s followed the same pattern.                                         G

       4. The appellant further alleged in the complaint that the respondent
then advised the appellant company to file 631 criminal petitions to quash
the alleged complaints filed against them. He painted a picture where
                                                                               H
820            SUPREME COURT REPORTS                          [2018] 2 S.C.R.


A     the arrest of the appellant’s top executives was imminent and further
      went to contend that this dire situation could only be staved off if the
      criminal petitions were filed. He introduced Ms. Gowri as the vendor
      from whom the stamps for court fees would be purchased. The
      respondent stated that each petition would require a court fee of
      Rs.10,000/- (Rupees Ten Thousand only) to be filed – a statement that
B
      is blatantly false. Misled by the respondent, the appellant remitted
      Rs.62,51,259/- (Rupees Sixty Two Lakh Fifty One Thousand Two
      Hundred and Fifty Nine only) towards court fees for filing the criminal
      petitions. In order to make his lie believable, the respondent issued a
      receipt signed by Ms. Gowri for the amount received as the court fees.
C     Further, respondent also stated that other counsels were required to deal
      with the criminal petitions and urged the appellant company to retain
      three persons he introduced as CC Narayana, D. Ramesh and
      Raghavendra Rao. The appellant company then issued cheques over a
      period of 15 months to these three persons amounting to Rs.6,46,500/-
      (Rupees Six Lakh Forty Six Thousand and Five Hundred only). In
D
      addition to the aforementioned sums, the respondent also charged the
      appellants herein a sum of Rs.2,12,500/- (Rupees Two Lakh Twelve
      Thousand and Five Hundred only) as his fees.

             5. By this time, the appellant company had spent a sum of
E     Rs.72,00,000/- (Rupees Seventy Two Lakhs only) on litigation and were
      anxious regarding the results of the petitions. The respondent assured
      them that the criminal petitions were proceeding well and in December,
      2001, when mere assurances were no longer enough, he produced a
      document he claimed was an order passed by a Single Judge of the High
      Court of Karnataka at Bangalore dated October 3, 2001 whereby 318
F     petitions had been allowed in favour of the appellant company. The
      respondent’s conduct is proven by multiple letters exchanged by him
      and the appellant company wherein he continued this charade. However,
      the appellant company grew suspicious of the respondent’s evasive
      manner. In January, 2002, the Police Constable called the appellant’s
G     offices threatening more warrants. At this juncture, the appellant
      company sought the advice of another Advocate. This action of the
      appellant company brought to light the myriad of deceptions practiced
      upon them by the respondent.


H
         M/S. ADVANTA INDIA LTD. v. B.N. SHIVANNA                            821
                     [ A. K. SIKRI, J.]

       6. The appellant company asked it’s newly appointed Advocate          A
Mr. B.K. Sampath Kumar to check on the status of the criminal petitions
as they felt that with the same pending before the trial courts, there was
no reason for the Constable to call them and threaten the issuance of
warrants. It was then they came to know that no criminal petitions had
been filed in their name. The appellant company also gained knowledge
                                                                             B
that no court fees had to be paid to file criminal petitions. The web of
deceit now began to unravel, further queries made to the Commissioner
of Stamps, Karnataka and the Secretary of the Bangalore Advocates
Association revealed that Ms. Gowri was not a registered vendor of
stamps as they had been led to believe. This galvanized the appellants
to produce the order given to them by the respondent before the Registrar    C
of the High Court. The latter declared the alleged order as forgery and
a fake and unequivocally stated that the Single Judge of the High Court
had never issued such an order. In the wake of receiving this fake
order, the High Court initiated suo moto contempt proceedings, CCC
No. 7/2002.
                                                                             D
       7. Apart from filing the complaint before the State Bar Council of
Karnataka under Section 35 of the Advocates Act on the aforesaid
allegations, the appellant company has also filed Criminal Contempt Case
No. 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 IVth       E
Addl. Metropolitan Magistrate, Bangalore. The appellant has also filed
OS No. 1575 of 2002 for recovery of Rs.72,00,000/- taken by the
respondent on false pretexts.

        8. The State Bar Council vide Resolution No. 68 referred the
complaint before the Disciplinary Committee. After enquiring into the        F
matter, the Disciplinary Committee adjudged the respondent guilty of
misconduct and vide Orders dated July 31, 2005, debarred the respondent
for life and removed his name from the rolls of the BCI. The respondent
appealed the order passed in DCE No. 14/2004 before the BCI in DC
Appeal No. 59/2005. The Disciplinary Committee of the BCI decided
                                                                             G
the appeal on September 10, 2011. It agreed with every finding rendered
by the State Bar Council. However, it chose to reduce the punishment
dealt to the respondent and debarred him only for a limited period of 18
months.

                                                                             H
822            SUPREME COURT REPORTS                          [2018] 2 S.C.R.


A            9. Aggrieved by the said order of the BCI, the appellant company
      filed CA No. 2732 of 2012 before this Court. While this appeal was
      pending, the respondent filed Review Petition No. 7/2011 in DC Appeal
      No. 59/2005 before the BCI under Section 48AA. The Disciplinary
      Committee considered the same as per the powers vested in it under
      Section 44 of the Act and vide impugned order dated July 11, 2015,
B
      remanded 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 which
      was disposed of as infructuous, with the following order:
C
            “Mr. Naresh Kaushik, learned counsel for the appellant submits
            that since the order impugned in this appeal has been reversed
            and the matter remanded back to the Disciplinary Committee of
            the Bar Council of India, this appeal has become infructuous and
            may be dismissed as such reserving liberty for the appellant to
D           challenge the order passed in review in separate proceedings in
            accordance with law. The civil appeal is accordingly dismissed as
            infructuous with the liberty prayed for.”

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

             12. On going through the Orders dated July 07, 2015 passed by
      the Disciplinary Committee of BCI, we discern that the reason which
      swayed the BCI to review its order was that before the State Disciplinary
      Committee, the respondent herein was not given adequate opportunity
F
      to cross-examine PW-1, i.e., the complainant. It has recorded that the
      evidence of the complainant was closed on June 19, 2005, even though
      the respondent could not appear on that day due to his sickness and had
      produced the medical certificate in support thereof. After closing the
      evidence of the complainant, case was fixed for respondent’s evidence
G     on July 03, 2005. However, on that day also the respondent was not
      well and he had sought adjournment in the form of memo supported by
      medical certificate dated July 02, 2005. This application was declined
      by the Disciplinary Committee of the State Bar Council and evidence
      was closed. On that basis, the BCI has formed an opinion that in the
H
            M/S. ADVANTA INDIA LTD. v. B.N. SHIVANNA                            823
                        [ A. K. SIKRI, J.]

absence of an opportunity to cross-examine PW-1, the respondent was             A
denied his valuable right to defend himself which infringed the principle
of fair trial. At the same time, while allowing the review petition on the
aforesaid basis, instead of remanding the case back to the Disciplinary
Committee of the State Bar Council, the BCI has withdrawn the case to
itself on the ground that by virtue of the Section 36B of the Act, the
                                                                                B
jurisdiction of the Disciplinary Committee of the State Bar Council comes
to an end on expiry of the period of one year. It has ordered that further
enquiry shall be conducted by the Disciplinary Committee of BCI from
the stage it was as on June 19, 2005 and the Chairman, BCI may
constitute Disciplinary Committee of the BCI in this behalf.
                                                                                C
       13. We may also point out, at this juncture, that the appellant herein
had raised a preliminary issue questioning the maintainability of the review
petition, inter alia, on the ground that scope of review jurisdiction was
very limited. This objection has been turned down by the BCI with the
remarks that review jurisdiction of the Disciplinary Committee of the
Bar Council under the Act is wider than the review jurisdiction of a            D
court under Section 114 of the Code of Civil Procedure read with Rule
1, Order 47 of the CPC. For this purpose, it has taken shelter in the
judgment 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:
                                                                                E
         “The powers of review are not circumscribed by the Act. The
         analogy of the Civil Procedure Code must not be carried too far.
         Such powers may be exercised in a suitable case for or against
         an advocate even after the matter has gone through the hands of
         the Disciplinary Committee at some stage or even through this
         Court.                                                                 F

         xxx              xxx               xxx

         …….All processes of the court are intended to secure justice
         and one such process is the power of review.”
                                                                                G
       14. 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
1
    (1971) 3 SCC 5                                                              H
824            SUPREME COURT REPORTS                           [2018] 2 S.C.R.


A     Committee, in terms of Section 44 and Section 48AA of the Advocate’s
      Act, 1961.

             15. 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
B     fact, gone much beyond the scope of review powers, even when these
      are liberally construed. Our reasons for this conclusion are discussed
      hereinafter.

             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. It
C
      was argued even before the Disciplinary Committee of the State Bar
      Council. The State Bar Council considered the argument and rejected
      the same after it found that the respondent had intentionally adopted
      dilatory tactics. It specifically held that cross-examination of the
      complainant was closed after giving adequate opportunities to the
D     respondent. However, every time, when the case was fixed for cross-
      examination of PW-1, the respondent would send the proxy counsel with
      a medical certificate stating that he was unable to present himself. The
      State Bar Council even found discrepancies and inherent contradictions
      in the medical certificates. Discussion in this behalf, contained in the
      order of the Disciplinary Committee of the State Bar Council runs as
E
      under:

            “It is to be seen from the records, that even before this Committee
            the respondent has availed maximum indulgence to cross examine
            his opponent, and inspite of availing the opportunity did not choose
F           to complete the cross examination of his opponent. This Committee
            ultimately after understanding the intentional default has passed
            the order taking the cross examination as closed. It is to be further
            seen that the respondent inspite of affording sufficient opportunity
            to him did not choose to let in any evidence from his side to
            substantiate his defense except marking some of the documents
G           as exhibits, would not in any way 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.”
H
         M/S. ADVANTA INDIA LTD. v. B.N. SHIVANNA                               825
                     [ A. K. SIKRI, J.]

      17. It would be pertinent to mention that even in the appeal filed        A
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
                                                                                B
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          C
      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       D
      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             E
      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    F
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
                                                                                G
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.                                                                  H
826                SUPREME COURT REPORTS                        [2018] 2 S.C.R.


A            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
B
      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
C     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.
D            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.
E     This maxim is explained in Eureka Forbes Limited v. Allahabad Bank
      and Ors.2 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,
F               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
G     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
      2
          (2010) 6 SCC 193
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         M/S. ADVANTA INDIA LTD. v. B.N. SHIVANNA                             827
                     [ A. K. SIKRI, J.]

extracted huge amounts of money from the appellant by adopting illegal        A
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
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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/-.
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       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. In the aforesaid circumstances, the impugned order dated July      D
11, 2015 passed by the Disciplinary Committee of the BCI is hereby set
aside.

       24. The outcome of the aforesaid discussion would be to
resuscitate Order dated September 10, 2011 passed by the Disciplinary
Committee of BCI. However, the appellant was not satisfied with that          E
order and it had challenged the same insofar as it modified the punishment
awarded to the respondent is concerned. However, said appeal (Civil
Appeal No. 273 of 2012) was disposed of on September 01, 2016 as
having become infructuous because of orders dated July 11, 2015 passed
by the BCI in review petition. Liberty was granted to challenge the           F
order passed in review petition in accordance with the law.
In these circumstances, we permit the appellant to seek recall of
orders dated September 01, 2016 passed in Civil Appeal No. 273 of
2012 and seek restoration of the said appeal for its
decision on merits.
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      25. To sum up, with setting aside of order dated July 11, 2015
passed by the Disciplinary Committee of BCI, its earlier order dated
September 10, 2011 stand revived. However, to the extent the said


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828                SUPREME COURT REPORTS                      [2018] 2 S.C.R.


A     order reduces the punishment that was awarded to the respondent, same
      shall be subject to the outcome of Civil Appeal No. 273 of 2012, in case
      the same is revived by the appropriate Bench and it decides to hear that
      appeal on merits.

              26. The appeal is allowed in the aforesaid terms.
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              No costs.



      Nidhi Jain                                                  Appeal allowed.
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