Important points
The courts have necessarily to avoid such embarrassment being caused to the lawyers and this could be ensured by permitting examination of lawyers only in cases where their testimony in court is absolutely essential and inevitable- The court shall be circumspect in summoning lawyers cited as witnesses, whether by their own clients or opposite parties, except when their examination is unavoidable- The request for examination should not be granted mechanically and for mere asking.

T.V. ANIL KUMAR, J.

1. Challenge in the above proceedings instituted under Article 227 of the Constitution of India is against a common order passed by the Family Court, Thrissur in I.A. Nos. 1832/2018 and 1833/2018 in I.A. No. 802/2018 in O.P. No. 337/2017 dated 16th April 2018.

2. The petitioner herein is the mother of a minor child, who was opposing O.P. No. 337/2017 filed by the respondent (father) before the Family Court seeking permanent custody of the child. While the said O.P. was pending, the parties have settled the issues involved therein, along with other litigations to which they were parties. A mediation agreement was drawn on 21.8.2017. The terms of the agreement, inter-alia consisted of entrustment of the minor child in the permanent custody of one of the parents. Accepting the mediation agreement, all the litigations, including O.P. No. 337/2017, were disposed of by the Family Court. The petitioner later came to understand that the mediation agreement signed by her did not reflect the true consensus arrived at between the parties and it was only as a result of a fraud played on her. She therefore, filed I.A. No. 802/2018 before the Family Court, Thrissur for setting aside the mediation agreement on the ground of fraud by invoking the proviso to Order XXIII Rule 3 of CPC.

3. Her case is that, she subscribed her signature in the mediation agreement without understanding the true contents thereof and neither the lawyers nor the mediator who prepared the agreement had explained to her the terms and conditions in the agreement, before her signature was obtained. She assumed while signing the agreement that, it contained the same terms and stipulations already agreed upon between parties in the course of the mediation. Her lawyer too signed the mediation agreement very mechanically and without trying to understand the terms therein. No attempt was made by her lawyer to explain to her the terms of agreement.

4. The respondent herein denied the allegations of fraud raised by the petitioner and sought to sustain the agreement as lawfully executed and binding on the parties. The petitioner herein was examined in I.A. No. 802/2018 as PW-1 and her examination was completed also. After completion of her examination, the respondent filed I.A. No. 1832/2018 to recall and re-examine her with respect to certain matters omitted to be put to her in the course of the examination. Simultaneously, he filed I.A. No. 1833/2018 seeking to summon and examine the petitioner's former lawyer as a witness in the proceeding. Both these petitions were opposed by the petitioner herein. The court below, overruling the objections raised by the petitioner, passed the impugned order accepting the request of the respondent. Objection to the summoning of the lawyer as a witness was raised by placing reliance on the legal bar contained in Section 126 of the Indian Evidence Act, 1872 (for short the Act). Objection to recalling PW-1 was that the respondent already availed sufficient opportunity and therefore re-examination of PW-1 would only amount to repeated harassment.

5. The main question to be considered here is whether the order of the court below summoning the lawyer of the petitioner could be said to be illegal and the request to summon the lawyer of the opposite party if allowed would offend Section 126 of the Act.

6. Heard both sides.

7. Section 126 of the Evidence Act reads as follows:

“126. Professional communications - No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or 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, or to disclose any advice given by him to his client in the course and for the purpo