016-NLR-NLR-V-76-In-re-S.-DHARMALINGAM.pdf
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H. N. G. FERNANDO, O.J.—In re Dharmalingam
1968 Present: H. N. G. Fernando, C. J., Samerawickrame, J.,and Weeramantry, J.
In re S. DHARMALINGAM
S. C. Rule No, 20—In the matter of a Rule under Section 17 of theCourts Ordinance on S. Dharmalingam of Kurunegala, a Proctor ofthe Supreme Court
Legal practitioners—Proctor guilty of malpractice—Liability to besuspended from practice or removed from office—CourtsOrdinance, s. 17.
The respondent, a Proctor, misappropriated and failed to depositin Court a sum of Rs. 75 given to him by his client for the purposeof being so deposited as survey fees in a partition action. The action' was dismissed because of the failure to deposit the survey fees.
Held, that the respondent was guilty of malpractice and liable tobe punished under section 17 of the Courts Ordinance.
Rule under section 17 of the Courts Ordinance.
H. Deheragoda, Senior Crown Counsel, as amicus curiae.
Arulambalam, for the respondent.
Cur. adv. vult.
August 28, 1968. H. N. G. Fernando, C.J.—
The respondent in this case, a Proctor, was noticed by thisCourt to show cause why he should not be suspended frompractice or removed from office on account of malpractice ordeceit.
The notice issued from Court subsequent to an inquiry heldby the Disciplinary Committee of the Law Society. TheCommittee duly gave notice to the respondent of the date fixed
H. N. G. FERNANDO, C.J.—In re Dharmatingam
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for inquiry, and adjourned the inquiry on two occasions at therequest of the respondent. Nevertheless he failed to appearbefore the Committee even on subsequent dates of inquiry ofwhich he had been given due notice.
We did not find acceptable the explanations offered by therespondent for his failure to attend before the disciplinaryCommittee and to furnish promptly to the Committee theexplanations of his conduct which he later offered in this Court.
Upon the evidence given before us by the respondent himself,and having regard to the Journal entries in a partition actionthe record of which was before us, the following facts areclearly established:—
The respondent filed action No. 1855/P on 4th March 1963
in the District Court of Kurunegala on behalf of hisclient, and on that date the Court made order for thedeposit of Rs. 75 as survey fees on or before 29.5.63.
On or about 23.3.63 the client brought to the respondent
a sum of Rs. 75 for the purpose of the survey fees, a sumof Rs. 11 for the search of the register, and a sum ofRs. 50 as payment or part payment of the respondent’spersonal fee as proctor.
The respondent did not deposit in Court the Rs. 75 which
his client had given him for the survey fees. Insteadhe informed the Court on 28th May 1963 that his clienthad not’been able to find the money for the survey feesand moved for an extension of the date for the deposit.One month’s extension was then allowed, but again onthe same ground the respondent moved for one month’sfurther time. Further time was again allowed until26.7.63, on which date the action was dismissed becauseof the failure to deposit the survey fee.
On these facts it is apparent that, although the Rs. 75 intendedfor survey fees was in the respondent’s pocket on 23.3.63, hefailed to carry out his professional duty to deposit that amountin Court in order that his client’s action might duly proceed.
The explanation which the respondent has now offered is that,before -23rd March, he informed the client that what she hadpaid him as his personal fee was inadequate, and that she shouldbring another Rs. 100 together with the survey fee of Rs. 75. Therespondent’s version is that when the client brought the Rs. 75on 23rd March, he again asked for the further Rs. 100, and thatthe client thereupon agreed that he should keep the Rs. 75 forhimself and that she would bring later the money for the surveyfee.
H. N. G. FERNANDO, C.J.—In re Dharmatingam
This explanation of the respondent is directly in conflict withthe receipt P2 which the respondent handed to his client on 23rdMarch. The receipt explicitly acknowledges that the respondenton that day received Rs. 75 as the survey fees in the action. Thisreceipt in our opinion sufficiently establishes the falsity of therespondent’s explanation.
Moreover, we are not disposed to believe that the respondentdid in fact consider that the Rs. 50 which he had been paidalready was an insufficient fee for the search which he had made.There is only his bare word that the search involved a greatdeal of labour. His evidence on this point if true could havebeen confirmed by production before us of the relevantregisters.
We are satisfied that the respondent has been proved to beguilty of malpractice in that he misappropriated and failed todeposit in Court the sum of Rs. 75 given to him by his clientfor the purpose of being so deposited as survey fees in a partitionaction. We understand that at the relevant time the respondentwas troubled by domestic difficulties, and on this account, wepropose to deal leniently with him. We order that he besuspended from practice as a Proctor from date until 31stDecember 1969.
Samerawickrame, J.—I agree.
Weeramantry, J.—I agree.
Rule made absolute.
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