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Judges : BALANARAYANA MARAR
Abdhu - Appellant
Versus
Veeravu - Respondent
Case No : C.R.P. No. 1980 of 1990
Decided On : 11/23/1990
Advocates Appeared :
N.L. Krishnamoorthy; For Petitioner P.V. Chandramohan; For Respondent
Counsel Witness Summons - Partnership Dispute - Evidence Act - Bar Council Rules - Duty of Advocate - Vakalath Relinquishment - Mediation Talks - Privileged Communication - Advocate Testimony
Fact of the Case:
Partnership dispute between plaintiff and defendant of 'Trichur Cotton Stores'. Plaintiff sought reimbursement for tax paid by him. Plaintiff moved a petition to summon defendant's counsel as a witness. Defendant resisted the suit. The court allowed the application but later reviewed and dismissed it. Plaintiff argued that the defendant's counsel was a material witness in the mediation and drafting of the dissolution deed.
Finding of the Court:
The court found that the defendant's counsel was a material witness in the mediation and drafting of the dissolution deed. The court emphasized the duty of the advocate to withdraw from the case if summoned as a witness on a material question of fact. The court also held that the advocate should not continue to appear if his withdrawal would not jeopardize his client's interests.
Issues: 1. Can a counsel appearing in a case be summoned as a witness by the opposite party? 2. Can the court direct the counsel to relinquish the vakalath in case he refuses to give up the vakalath?
Ratio Decidendi: The court held that a lawyer appearing for the opposite party can be summoned as a witness if he is a material witness on a fact relevant to the case. The court emphasized the duty of the advocate to withdraw from the case if summoned as a witness on a material question of fact. The court also clarified that the advocate should not continue to appear if his withdrawal would not jeopardize his client's interests. The court also ruled that privileged communication between a lawyer and client does not apply when both parties have a common interest and engage the same lawyer.
Final Decision: The court set aside the impugned order and restored the order allowing the plaintiff to summon the advocate for the defendant as a witness. The parties were directed to bear their own costs.
1. Two questions of some importance arise in this revision. They are:
1. Can a counsel appearing in a case summoned as a witness by the opposite party? and
2. Can the court direct the counsel to relinquish the vakalath in case he refuses to give up the vakalath?
2. Revision petitioner-plaintiff and respondent-defendant were partners of a firm by name "Trichur Cotton Stores". The partnership was dissolved as per a deed dt.14-10-1983. The deed contains a clause that all the out standings will be collected by the defendant and the dues will also be paid by him. Tax due to Government was collected from plaintiff and he wanted the share of defendant to be reimbursed by him by filing O.S. 879/1987 before Sub Court, Thrissur. The suit was resisted by the defendant. Revision petitioner submitted a witness list containing the name of counsel for the defendant Sri. P.A. Surendranath and another counsel by name Sri Samuel. A petition was also moved as LA. 1955/1989 for permission to summon them as witnesses. The court below as per order dt. 5-1-1990 allowed that application. But that order was reviewed later on the application filed by the defendant as I.A. 142/1990. As per the order passed therein LA 1955/1989 was dismissed. That order is under challenge in this revision.
3. One of the witnesses sought to be examined by the plaintiff and included in the witness list is the counsel appearing for the defendant. The first aspect to be considered is whether he can be summoned as a witness by the plaintiff. The lawyer appearing for the opposite party cannot ordinarily be summoned as a witness since he shall not be permitted at any time to disclose professional communications. S.126 of the Evidence Act prohibits the lawyer to disclose any communication made to him in the course of and for the purpose of his employment as such lawyer by or on behalf of his client. He cannot also be asked to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment. He should not disclose any advice given by him to his client in the course and for the purpose of such employment. But this privilege extends only to all communications between the client and his lawyer in the course of and for the purpose of his professional employment. The counsel may be in possession of other facts which had come to his knowledge otherwise than in the course of and for the purpose of his professional employment. Disclosure of such materials is not prohibited by S.126 of the Evidence Act. To prove such a fact, the intending party has to summon the lawyer as a witness to speak about that fact. If the court deals that the lawyer alone is competent to speak about a material fact relevant for the purpose of decision, there is no bar in the court summoning the lawyer as a witness for the opposite party. But before permitting a party to summon the counsel appearing on the opposite side, the court has to make an enquiry and should form an opinion that the evidence to be tendered by the lawyer is on a material question of fact on which he alone can tender evidence. There is sufficient indication to this effect in R.13 of Chapter II of Part VI of the Bar Council of India Rules, 1975 which reads thus:
"An Advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an Advocate if he can retire without jeopardising his client's interests".
4. The rule directs that an advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness. If he is engaged in such a case and if it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate. But, if his retirement would jeopardise his client's interests, he
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