The main legal point established in the judgment is the need for judicial consideration, ethical considerations, and practical consequences when deciding whether to allow the summoning of the counsel of the opposite party as a witness.

Judgment :-

Thomas, J.

It is proper for cue party in a suit to summon the counsel of his opposite party as a witness? No doubt, any person can be cited as a witness if he has the testimonial competence envisaged in S.118 of the Evidence Act, 1872. But should not the court be greatly circumspect when the counsel engaged by the opposite side is sought to be summoned as a witness? That question needs consideration now.

2. This appeal arises from one of the two suits sprouted from a shunted matrimonial proposal. The proposal for the marriage registered fast progress initially and reached upto publication of "banns" in the church/but then it went away as one of the parties backed out from it. The bride's party filed a suit in the Sub Court, Neyyattinkara for damages alleging fraud and deception. The other side (bride-groom's party) also filed a suit at Kuzhithura (in Tamil Nadu) for damages alleging breach of promise. Further details of the rival claims are unnecessary for this appeal and hence we omit them. However, bare facts just sufficient for this appeal are the following: The suit. in Neyyattinkara Court reached-almost the final stage, as both sides closed their evidence. But appellants then tiled a petition seeking permission.to cite the advocate of the respondents as a witness, Learned Sub Judge allowed the petition and Ordered summons to be issued to him. Some time later, respondents moved for a review of the said order and learned Sub Judge allowed the review application as; per the impugned' order."

3. It was first contended before us that the review petition was time barred. Though the same contention was raised in the lower court, learned Sub Judge overruled it on the premise that the counsel for the plaintiffs conceded that the court could review the order suo mote. In view of the said concession, we do not think it necessary, to consider whether the application for review was lime barred.

4. As we felt that the main question involved in this case should be answered thoughtfully, we requested Shri. G. Unnikrishnan, advocate, to look up the position and assist us as amicus curiae. Learned counsel readily obliged and addressed detailed arguments. He pointed out that even though there is no statutory bar or legal disability, 'the practice of citing the counsel of the opposite party as, a witness deserves .to be discouraged unless the evidence sought to be elicited from the counsel i§ very material for the case.

5. In Halsbury's Law of England it is mentioned Hut "a barrister should not act as counsel and witness in the same case and he should not accept instructions 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 likely to be a witness on a material question of fact, he should not continue to appear as counsel if he can retire without jeopardising his client's interests" (vide paragraph 511 at page 388 - Volume 37 of the Fourth Edition).

6. The said code of conduct has been in vogue in India also In D. Weston v. P.M. Duss (40 Calcutta 898; 23 Indian Cases 25) it has been observed that "as a general practice, however, it is undesirable that when the matter to which counsel depose is other than formal that they should testify cither for or against the party whose case they are conducting". Beaumont C.J. speaking for a Division Bench has observed in Emperor v. Dadu Rama (AIR 1939 Bombay 150) that a party in a criminal proceeding is entitled to select the advocate whom he desires to appear for him and the other party cannot fetter that choice merely by serving a summon on the advocate to appear as a witness. V.R. Sen, J. in All India Reporter v. Moghe (AIR (37) 1950 Nagpur 110) surveyed through a number of decisions and pointed out that if the object is to prejudice his opponent the application should be turned down. A duty was cast on the court to closely examine the object of the party in citing the counsel as a witness.

7. There are some inhib