Advocate filing affidavit is liable to be cross-examined.

Srinivasan, J.

1. This appeal is against an order dismissing the application in I.A. No. 858 of 1986 which was one to restore I.A. No. 637 of 1985 which was dismissed for default on 26.2.1986. I.A. No. 637 of 1986 was in turn to restore I.A. No. 486 of 1985 which was dismissed for default on 29-4-1985. I.A. 486 of 1985 itself was one for setting aside the exparte decree Passed on 22-1-1985 in a suit for specific performance bearing O.S. No. 14 of 1984, Sub-Court, Poonamallee.

2. In support of the application I.A. No. 858 of 1986, an affidavit was filed by the learned Counsel for the petitioners. It is very distressing to note that counsel not only filed the affidavit in support of the application but also signed the application as advocate for petitioners. In recent times, an unhealthy practice has grown up among the members of the Bar to come out with affidavits in support of their clients even without the clients themselves filing affidavits setting out the facts. Unfortunately the implication and consequences there of have not been realised by them. Under Order 31, Rule 2, C.P.C. affidavit will be evidence in an application and the court could order cross-examination of the deponent. Thus the advocate who files an affidavit in support of an application is liable to be cross-examined and by filing the affidavit, he takes the role of witness. The Bar Council of India has framed rules under Section 49(c) of the Advocates Act, 1961. Rule 13 in Chapter V in Part III of the rules reads thus-

An Advocate should not accept a brief or appear in a case in which he has reason to belief that he will be a witness, and if being engaged in 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 retires without jeopardising his client's interests.

The indiscriminate way in which affidavits are filed by counsel on record nowadays makes me doubt whether any of them is aware of the above rule.

3. Even assuming that the circumstances of the case force counsel on record to file affidavits in support of the applications, they should take immediate steps to protect the interests of the client by not only requesting some other competent advocate to appear as counsel in that particular matter but also place the necessary materials before the Court to substantiate the averments made by them in their affidavits. The advocate who files an affidavit in court has no right to assume that his ipse dixit will be accepted by the court automatically without any security. Particularly when the opposite party challenges the correctness or truth of the averments in the affidavit, it is the paramount duty of the advocate who is the deponent of the affidavit to produce the best evidence to prove the contents of the affidavit. It will be nothing but vain glory if the deponent thinks that, as members of the legal profession occupy a very high status, his affidavit is to be accepted on its own weight without any corroboration. No doubt the elevated position of the Bar is indicated by the term 'la noblesse de la robs' (the aristocracy of the grown) but it should not be forgotten that ranks imposes obligations (nobles obelige). Of late, cases of negligence and dereliction from duty on the part of advocates are so rampant that the members of the noble profession should resort to introspection and bring about measures to restore the dignity and honour of the profession. This case is itself an eloquent example of gross negligence on the part of counsel on record. I would not have ventured to sermonise like this but for the argument of learned Counsel for the petitioner that he expected the court below to accept his affidavit as the gospel of truth.

4. Turning to the affidavit filed by the learned Counsel for the petitioner, he had stated that when the case was posted for enquiry on 26.2.1986, he was indisposed and could not attend the court. It has to be noticed that no details as to the nature o