You can file suit seeking alternative prayers and the only condition is that you have to pay distinct Court Fee as may be fixed by the State Court Fee and Suit Valuation Act.
PROCEDURE TO LODGE COMPLAINT AGAINST AN ADVOCATE AS PRESCRIBED BY BAR COUNCIL OF INDIA
A complaint against an advocate has to be in the form of a petition. It has to be duly signed and verified as required under the Code of Civil Procedure.
Click here to see the Advocates Act, 1961
Click here to see Parts I, II and III of the Bar Council of India Rules
Click here to see Part IV of the Bar Council of India Rules (Rules on Legal Education)
Click here to see Parts V, VI, VII, VIII and IX of the Bar Council of India Rules
The complaint can be filed in English or in Hindi or in a regional language where the language has been declared to be a state language. In those cases where the complaint is in Hindi or in any other regional language, the State Bar Council shall translate the complaint in English whenever a disciplinary matter is sent to the Bar Council of India as per the Advocates Act.
Every complaint shall be accompanied by the fees prescribed in the Bar Council of India Rules.
Removal of Defects and Request for Particulars in a Complaint
The Secretary of the Bar Council may require the complainant to pay the prescribed fees if the proper fee has not been paid. He can also call the complainant to remove any defects and call for the particulars or copies of the complaint or other documents as may be considered necessary.
On a complaint being found to be in order, it shall be registered and placed before the Bar Council for such order as it may deem fit to pass.
Withdrawal and Settlement of Complaints
No matter taken up by the State Bar Council (either suo motu or on a complaint made by other parties) for misconduct of advocates shall be dropped solely by reason of its having been withdrawn, settled or otherwise compromised, or because the complainant does not want proceed with the enquiry.
Before referring a complaint for misconduct of an advocate to one of its Disciplinary Committees to be specified by it, the Bar Council may require a complainant to furnish further and better particulars or may call for comments from the advocate complained against, within a time to be fixed by it.
Show Cause Notice
Once the Bar Council has referred the complaint to a disciplinary committee, the Registrar should expeditiously send a notice to the advocate.
The notice will ask the concerned advocate to show cause within a specified date, on the complaint made against him and to submit the statement of defence, documents and affidavits in support of the defence.
It will also further inform him that in case of his non-appearance on the fixed date of hearing, the matter shall be heard and determined in his absence. Appearance usually includes appearance by an advocate or through a duly authorised representative.
Time of Enquiry
The Chairman of the Disciplinary Committee will fix the date, hour, and place of the enquiry. This date will not ordinarily be later than thirty days from the receipt of the reference. The Registrar has to give notice of the date, hour and place to the complainant or other person aggrieved, the advocate concerned, and the Attorney General or the Additional Solicitor General of India or the Advocate General, as the case may be.
The notices shall, subject to necessary modification, be in Form Nos. E-1 and E-2. It shall be sent to the advocates appearing for the parties. Notice to a party not appearing by the advocate shall be sent to the address as furnished in the complaint or in the grounds of appeal.
The cost of the notices shall be borne by the complainant unless the Disciplinary Committee otherwise directs.
The notices may be sent ordinarily through messenger or by registered post and served on the advocate or the party concerned or his agent or other person as provided for in Order V of the Civil Procedure Code.
Notice may also be sent for service through any Civil Court.
Where the notice sent to any party cannot be served using the normal methods listed above, it may be served by affixing a copy in some conspicuous place in the office of the Bar Council, and also upon some conspicuous part of the house (if any) in which the party concerned is known to have last resided or had his office.
Appearance and Witnesses
Parties can appear in person or by an advocate who should file a vakalatnama giving the name of the Bar Council in which he is enrolled, his residential address, telephone number if any, and his address for service of notices.
A Senior Advocate is entitled to appear with another advocate who has filed a vakalatnama.
The Bar Council or its Disciplinary Committee may at any stage of a proceeding appoint an advocate to appear as Amicus Curiae. Such advocate may be paid such fee as the Council or the Committee may decide.
Excepting when the Committee has otherwise directed, service on the advocate shall be deemed to be sufficient service on the parties concerned, even if copies of the notices are in addition sent to the parties, whether the parties have or have not been served.
Unless otherwise indicated, where more than one Advocate appears for the same party, it is sufficient to serve the notice on any of them.
If, in an enquiry on a complaint received, either the complainant or the respondent does not appear before the Disciplinary Committee in spite of service of notice, the Committee may proceed ex-parte or direct fresh notice to be served.
Any such order for proceeding ex-parte may be set aside on sufficient cause being shown, when an application is made supported by an affidavit, within 60 days of the passing of the ex-parte order.
The provisions of Section 5 of the Limitation Act, 1963 shall apply to this sub-rule.
Proceedings and Exhibits
The Disciplinary Committee shall hear the Attorney General or the Additional Solicitor General of India or the Advocate General, as the case may be or their advocate and parties or their advocates.
The matters can be heard and determined on documents and affidavits. Unless the committee is of the opinion that it should be in the interest of justice to permit cross-examination of the deponents or to take oral evidence, in which case the procedure for the trial of civil suits shall as far as possible be followed.
On every document admitted in evidence, the following endorsement shall be made which shall be signed by the Chairman or any member of the Committee:
The Disciplinary Committee of Bar Council of …………………
Exhibit No …………………………
Date of Document…………………………
Produced by ……………………………
Signature of ……………..
The exhibits shall be marked as follows: –
a. Those of the complainant as C1,C2, etc.
b. Those of Respondent as R1, R2,etc.
c. Those of Disciplinary Committee as D1, D2, etc.
The Disciplinary Committee may at any stage direct the parties or their advocates to furnish such further and better particulars, as it considers necessary.
Recording of Evidence
Any member of the Committee or any other person authorised by the committee shall record the evidence given before the Disciplinary Committee preferably in English. The evidence so recorded shall be signed by the Chairman or by any other member of the committee if the Chairman is not there.
In the case where the records of evidence are in any other language than English and the same has to be sent to the Bar Council of India or its Disciplinary Committee, then the same has to be translated into English. Such a translation thereof in English has to be made by a person nominated by Committee or Registrar certifying the same to be true copy should also be sent.
Record of Proceedings
Every Disciplinary Committee shall make a record of its day-to-day proceedings.
The Registrar of the Disciplinary Committee shall maintain a case diary setting out shortly in order of date, all relevant information concerning the date of filing, the date for hearing and despatch.
The case diary shall also have the details of service of the notices on the parties or the Advocates or the Attorney General or the Additional Solicitor General or the advocate General as the case may be, of statements or petitions filed and/or of their order, and of other proceedings in the matter before the Committee.
Dropping of Enquiries on Certain Grounds
In the case of the death of the complainant during the enquiry proceedings (and if there is no representative who is willing to conduct the case), the Disciplinary Committee may having regard to the allegations made in the complaint and the evidence available, make a suitable order either to proceed with the enquiry or to drop it.
In the case of an enquiry against one advocate only, on his death the Disciplinary Committee shall record the fact of such death and drop the proceedings.
Where the enquiry is against more than one advocate, on the death of one of them, the Disciplinary Committee may continue the enquiry against the other advocate unless it decides otherwise.
No disciplinary enquiry shall be dropped solely by reason of its having been withdrawn, settled or otherwise compromised, or that the complainant does not want to proceed with the enquiry.
Unless otherwise permitted, counsel appearing before any of the Disciplinary Committees of the State Bar Council or Bar Council of India shall appear in court dress.
Findings and Judgment
The finding of the majority of the members of the Disciplinary Committee shall be the finding of the Committee. The reason given in support of the finding may be given in the form of a judgment.
If there is a difference of opinion, any member dissenting shall be entitled to record his dissent giving his own reason. It shall be competent for the Disciplinary Committee to award such costs as it thinks fit.
The Registrar of the Disciplinary Committee shall send, free of charge to each of the parties in the proceedings, a certified copy of the final order or judgment.
The date of an Order made by the Disciplinary Committee shall be the date on which it is first received in the office of the Bar Council after all the members have signed it.
For the purpose of limitation, the date of the Order shall be the date on which the contents of the signed Order are communicated to the parties affected.
Certified copies of the records of a case pending before the Disciplinary Committee may be granted to the parties or to their counsel on an application made in that behalf and on payment of the prescribed fee. This is mandatory unless the Committee has directed otherwise.
The Secretary of a State Bar Council shall send to the Secretary of the Bar Council of India, quarterly statements of the complaints received and the stage of the proceedings before the State Bar Council and Disciplinary Committees.
The Secretary of the Bar Council of India may call for further statements and particulars as he considers necessary.
The Secretary of every State Bar Council shall furnish such particulars and send such statements as may be considered necessary by the Secretary of the Bar Council of India for these purposes and send them all to the records of proceedings that stand transferred.
The date of receipt of the complaint or the date of the initiation of the proceedings at the instance of the State Bar Council shall be the date on which the State Bar Council refers the case for disposal to its Disciplinary Committee.
Withdrawal of Proceedings
Where a State Bar Council makes a report, the Secretary of the State Bar Council shall send to the Secretary of the Bar Council of India, all the records of the proceedings, along with the report.
An application by a person interested in the withdrawal of a proceeding shall sign the same. It shall set out the necessary facts supported by an affidavit and accompanied by the fee prescribed.
For making an order on an application of a party or otherwise for withdrawal of an application, the Disciplinary Committee of the Bar Council of India may:
a. Call for a report of the Disciplinary Committee seized of the proceedings;
b. Issue notice to the respondent;
c. Require the parties to file such statements as it considers necessary;
d. Call for the records of the proceedings; and
e. Examine any witnesses.
In the proceedings before the Disciplinary Committee of Bar Council of India, the parties may appear in person or by an advocate who shall file a vakalatnama.
On consideration of the report of a State Bar Council or otherwise, the Disciplinary Committee of the Bar Council of India shall pass such orders as it considers proper.
Appeal to the Bar Council of India
An appeal to the Council from the State Bar Council shall be in the form of a memorandum in writing. If the appeal is in a language other than English, it shall be accompanied by a translation in English.
In every appeal, all persons who were parties to the original proceedings alone, shall be impleaded as parties.
In an appeal by the advocate against an order for misconduct, in case of death of the complainant, the legal representatives of the complainant shall be made parties.
An appeal may be presented by the appellant or his advocate or by his recognised agent in the office of the Bar Council of India. It can also be sent by registered post, so as to reach the Secretary, Bar Council of India. The appeal has to be presented on or before the last day of limitation.
Any appeal may be admitted after the period of limitation if the appellant satisfies the Disciplinary Committee that he has sufficient cause for not preferring the appeal within such a period. Any such application for condonation of delay shall be supported by an affidavit.
The memorandum of appeal shall contain necessary particulars as in Form G. The memorandum of appeal shall state when the order was communicated to the appellant and how it is in time.
Along with the memorandum of appeal, the appellant shall file:
a. The certified copy of the order appealed against, signed by the Registrar of the Disciplinary Committee,
(i) If there is only one respondent, five additional copies of the memorandum of appeal and of the order appealed against.
(ii) If there is more than one Respondent, such number of additional copies as may be necessary.
All copies shall be certified as true copies by the appellant or by his counsel.
Every memorandum of appeal shall be accompanied by the prescribed fees in cash.
If the papers filed in an appeal are not in order, the Registrar shall require the appellant to remove such defects within a specified time.
Allocation of Matters in Appeal
The Chairman of the Executive Committee or in his absence the Vice-Chairman of the Executive Committee) or such other member authorised in this behalf by the Council) shall have the power to allocate matters relating to the Disciplinary Committee. Sometimes the Council allots a particular case to any one particular Disciplinary Committee.
Any matter allotted to a particular Disciplinary Committee, which has not been heard, may be reallocated to a different Disciplinary Committee.
Interim Orders in Appeal
The Chairman of any Disciplinary Committee shall have powers to issue interim orders on urgent matters which may be placed before him by the Registrar.
Time and Date in Appeal
Subject to any resolution of the Bar Council of India relating to the places of hearing, the Chairman of the Disciplinary Committee concerned shall fix the date, hour and place for the hearing of the appeal.
Exhibits and Records in Appeal
The appellant shall be required to file six typed sets of the papers properly paged and indexed, if there is only one respondent.
In case of multiple respondents, as many more sets as there may be number of respondents, for the use of the Disciplinary Committee and by the other parties and for the record.
The papers to be filed are: –
a. The complaint and the statement in the defence of the advocate,
b. The oral and documentary evidence and such other papers on which parties intend to rely,
c. Any other part of the record as may be directed by the Committee.
Where any of the above papers is in a language other than English, English translations thereof will be filed.
The respondent shall, if he so desires, or if so called upon, file six sets of typed papers of any part of the record on which he intends to rely. He shall also file English translations of papers that are not in English.
Notice of Hearing in Appeal
The Registrar shall give notices to the parties, informing them of the date, the time and the place of the hearing of the appeal. A copy of the memorandum of appeal shall be sent to the respondent along with the notice of the appeal.
Withdrawal of Appeal
No appeal filed against an order of punishment of an advocate shall be permitted to be withdrawn on account of settlement or compromise or adjustment of the claim against the advocate.
Every appeal filed by or against an advocate shall abate on the death of the advocate so far as he is concerned.
Records from State Bar Councils
The Registrar shall issue notice to the State Council concerned for the complete records to be sent to the Council.
The Registrar of the State Council concerned shall send along with the records a list containing particulars under the following columns and comply with such other directions as may be issued.
Serial number of document
Date of document
Description of document
Application for Stay
An application for stay shall be made by the applicant with at least five copies of the application, and the affidavit and as many additional copies as there are respondents. Where the application is not in English, five copies with translation in English shall also be filed.
In every application for stay made to the Council, the applicant shall state if any application has been made to the State Council and the orders on the same.
Before a matter is allotted to a Disciplinary Committee the registrar may obtain orders on applications for interim stay or other urgent applications from the Chairman of any of the Disciplinary Committees. The orders passed shall be communicated to the parties and to the Secretary of the Bar Council concerned.
The Disciplinary Committee of the Bar Council of India shall exercise all the powers exercised by the Civil Court or Court of Appeal under C.P.C.