In Re: K.V. Narasinga Rao and Yusufuddin, Pleaders, Karimnagar

P. Chandra Reddy, C.J.—The charge against both the advocates was that they neglected to file an appeal entrusted to them on behalf of one Naraslmhulu by one Balakishtan,

The case against the advocates-respondents is this: One Shangaram Narasimhulu and some others filed a suit in the Court of the Munsif-Magistrate Huzurabad, for recovery of a piece of land. As the suit was dismissed, the plaintiffs wanted to file an appeal in the Court of the District Judge, Karimnagur. For that purpose, they engaged the first of the advocates Sri K. V. Narasinga Rao, entrusted him with papers and also paid him the necessary expenditure and his remuneration on 30-12-1950. The last date for filing of the appeal was 6-1-1951.

On 24-3-1951, Narasinga Rao wrote to the plaintiffs that the appeal was time-barred, that nothing could be done in the matter and that the money and the papers would be returned to them whenever they went to them. Accordingly. Bala-kishtan went to the advocate Sri Narasinga Rao and the entire amount along with the papers were returned on 29-3-1951, as evidenced by Ex. P-19. The appeal was nab filed till 2-4-1951. An application to excuse the delay accompanied the Memorandum of grounds of appeal.

The delay was not excused, as the appellate Court was not convinced that there was sufficient cause within the meaning of Section 5 of the Limitation Act with the result that the appeal was also dismissed as time-barred. Against that, a second appeal was filed in this Court and it came up for admission before our learned brother, Ansari, J. The judgment of the lower Appellate Court was confirmed, as in his opinion, there were no grounds to excuse the delay so as to attract Section 5 of the Limitation Act.

As it appeared to this Court that the dismissal of the appeal was due to the negligence of the advocates concerned, notice was issued to Sri Narasinga Rao awl Sri Yusufuddin as the former had pleaded in the preliminary explanation that he handed over the papers to the latter for the purpose of filing the appeal oN receipt of the explanation, charges were framed against both the advocates and the District Judge, Karimnagar, was directed to enquire into the matter.

The District Judge submitted a report with the finding that the papers were entrusted to Sri K. V. Narasinga Rao on 30-12-1950 or 5th January, 1951 to enable the advocate to file the appeal in time. The learned Judge also found that Sri Narasinga Rao had prolonged illness and had gone to Hyderabad on 6-1-1951 for treatment It was also his finding that he bad not delivered the papers and the money for filing the appeal to Sri Yusufuddin and, therefore, the latter had no responsibility in'' that regard.

The learned Judge concluded his report with the remark that one of them alone was guilty of neglect of duty, that he (Sri K. V. Narasinga Rao) was a fresher in the profession when the incident took place-and that his continued illness was a mitigating circumstance.

It is not necessary for us to consider as to who really was responsible for the delay in filing the appeal as, in our opinion, negligence in filing the an appeal would not amount to professional misconduct within the intendment of Section 13 of the Legal Practitioners'' Act (Act 18 of 1879) Section 13 in Bo far as it is relevant for this enquiry recites;

"The High Court may also, after such enquiry as it thin fit, suspend or dismiss any pleader or mukhtar holding a certificate as aforesaid-

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(b) who is guilty of fraudulent or grossly improper conduct in the discharge of his professional duly.

It looks to us that an advocate, who neglects to perform his duty does not come within the purview of Clause (b) since the element or moral delinquency is absent in the ''neglect of duty.'' It is only in cases where moral turpitude is involved such misiappropriation or misuse of the funds entrusted to him or in analogous circumstances that the case falls within the ambit of Clause (b).

We are fortified in ''this view of ours by (several decided cases. In the matter of In the Matter of Mr. B. Minuswami Naidu Vs. A., B.L., High Court Vakil, , it was ruled by a Special Bench of the Madras High Court that negligence of duties would not amount to professional misconduct, since the element of moral delinquency is an ingredient of the professional misconduct. To a like effect are the judgments of the same Court in In Re: G.S. Pleader, and A. Pleader Tiruppur in Re, 1944 2 M LJ 317: (AIR 1945 Mad .55). We are in respectful agreement with the principle enunciated in those cases.

In these circumstances, we feel that no action is called for against the advocates.