M/S. ADVANTA INDIA LTD. versus B. N. SHIVANNA

Citation: [2018] 2 S.C.R. 814 · Decided: 21-02-2018 · Supreme Court of India · Bench: A.K. SIKRI, ASHOK BHUSHAN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 2 S.C.R.
M/S. ADVANTA INDIA LTD.
v.
B. N. SHIVANNA
(Civil Appeal No. 11113 of 2016)
FEBRUARY 21, 2018
[A.K. SIKRI AND ASHOK BHUSHAN, JJ.]
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
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
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
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
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
and its earlier order is revived.
  [2018] 2 S.C.R. 814
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Allowing the appeal, the Court
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
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
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
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
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
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
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
M/S. ADVANTA INDIA LTD. v. B.N. SHIVANNA
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[2018] 2 S.C.R.
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 tha

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