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 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 interest.

1. A very interesting question: can a counsel representing a party in a suit or any legal proceedings akin thereto, be directed by the Presiding Officer to relinquish vakalath, so that he can be summoned as a witness by the opposite.

2. The court below by the order under challenge has directed the counsel representing the defendant in the suit to relinquish vakalath, entering the finding that he has been cited as a witness by the plaintiff.

3. Interpretation of R.13 of Chapter II of Part VI of the Bar Council of India Rules gives the answer to the question. This rule reads:

"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 interest".

The first part of the Rule provides that if an advocate has reason to believe that he will be a witness in a case, he shall not accept a briefer appear in that case. The decision not to accept the brief or appear in the case thus is based on his own belief that he is likely to be a witness in the case. But on his being engaged in a case, it becomes apparent that he is a witness on a material question of fact, then he should not continue to appear as an advocate, if he can retire without jeopardising his client's interest. Regarding the second aspect, that is, in a case where he has already accepted the brief, it is not as if he shall automatically relinquish vakalath if it becomes apparent that he is going to be a witness on a material question of fact. In such cases he need relinquish his vakalath only if it is further found that his retirement from the brief will not jeopardise his client's interest. This in short is the content of the second part of The Rule. The Rule, in my view, is not only to protect the interest of the advocate but to safeguard the rights of the party whom he represents in a proceeding.

4. The judicial authority before which a party initiates proceeding to summon the advocate representing the opposite side, as a witness, shall keep the above provision in view before any order requesting the counsel to relinquish vakalath, so that he can be summoned as a witness, is passed; else, it is not unlikely that the services of an efficient and competent counsel will be denied to the party who has engaged him.

5. The above Rule is contained 'in Chapter II of The Bar Council of India Rules, captioned, 'Standards of professional conduct and etiquette'. If any counsel functions in contravention of any of the Rules in Chapter II, he can be hauled up by the Bar Council, for misconduct. After the coming into force of the Advocates' Act, proceedings for professional misconduct can be dealt with only by the Bar Council constituted under that Act. In this regard I would observe that the Advocates' Act is a self-contained code and therefore the authority of the courts to interfere with these matters is subject to The Advocates Act and the Rules framed thereunder.

6. Considered in the light of the principles highlighted in the preceding paragraphs I am of opinion that the order of the court below directing the counsel to relinquish his vakalath is without jurisdiction. The order therefore is set aside.

7. Regarding the question as to whether the advocate who represents a party in a legal proceeding, is a witness on a material question of fact, no finding in this regard can be had without considering the pleadings contained in the plaint as also the written statement. In otherwords the court, or the authority concerned, as the case may be, shall find in no uncertain terms that no other witness but the advocate alone is competent or in any event capable of speaking on that'material question of fact'. While considering this aspect of the matter the court or the authority concerned shall always have in view the condition pres