The main legal point established is that adverse parties have the right to cross-examine witnesses, and a counsel cited as a witness should not continue with the case.

ARUN MISHRA. J. :- The writ petition has been filed by the plaintiff petitioner aggrieved by order (P/11) dated 31-8-2004 passed by XIIIth Addl. District Judge, Jabalpur in Civil Suit No. 212-A/02.

2. Plaintiff has flied the instant suit for declaration that the plaintiff No. 1 Smt.

Vidyavati Nagrath is the owner of 1/2 of the share of undivided suit property; and remaining half is joint Hindu family property. Declaration has also been sought that half of the suit property is joint Hindu family property. During the pendency of the suit plaintiff No. 1 Smt. Vidyavati Nagrath has executed his Will in favour of plaintiff No.2 Rajendra Nagrath, Smt. Vidyavati Nagrath had died on 26-3-1996. The Will was purported to be executed on 8-6-1992. The Will was brought on record. An application under Order 6 Rule 17 C.P.C. was filed by the plaintif which was allowed. The defendants were given opportunity to make consequential amendment. However, as per the petitioner they did not make consequential amendment. Surviving plaintiff petitioner before the trial Court filed application under Order 8 Rule 5 r/w Section 151 C.P.C. praying for the relief that as the factum of the Will has not been disputed, the defendant should not be permitted to Cross-examine the witnesses, whose affidavits have been filed in support of the Will by the plaintiff, as the fact of execution of Will is admitted one.

3. Another application under Order 3 Rules 1 and 4 C.P.C. was filed by the defendant on the ground that Shri A. S. Usmani, Advocate has been cited as witness, his affidavit has been filed in support of the Will, thus, he should not be permitted to continue the case as counsel on behalf of plaintiff. The factum of the Will has been disputed by the defendant in the reply filed to the application under Order 8 Rule 5 r /w Section 151 of the C.P.C.

4. The Trial Court has rejected the application filed under Order 8 Rule 5 r /w Section 151 C.P.C. filed by the plaintiff petitioner. The application filed by the defendants respondents Nos. 1 and 2 to direct Shri A. S. Usmani not to appear in the case has been allowed, he has been directed not to appear on behalf of the plaintiff in the case as he has been cited as a witness.

5. Shri Alok Aradhe, learned counsel appearing with Shri Sanjeev Mishra has submitted that the factum of the Will has not been disputed in the writen statement, consequently, it can be said that the defendant has the right to cross-examine the witness, thus, the application preferred under Order 8 Rule 5 r/w Section 151 C.P.C. has been wrongly rejected by the trial Court. He has also submitted that Rule 13 framed by the Bar Council of India regarding professional

ethics contained in Part-IV Chapter-I framed under the Advocates Act provides that if an Advocate is a witness on a material question of fact, he should not continue to appear as an Advocate. As the Will has not been disputed it cannot be said that Shri Usmani is material witness in the instant case. Thus, the direction issued by the Trial Court while allowing the application under Order 3 Rules 1 and 4 of the C.P.C. is not correct.

6. Shri R. K. Sanghi learned counsel appearing on behalf of the respondent Nos. 1 and 2 has submitted that the factum of the Will has been disputed and it would be professional misconduct in case Shri A. S. Usmani continues with the case. He placed reliance on the decision of the apex Court in Motilal and Anr. v. Anandibai and Anr., 1971 Cal 259 (SC). He has also submitted that once the affidavits have been filed and plaintiff has examined, in chief of the witnesses on affidavits defendant being adverse party has the right to cross-examine the witnesses.

7. First we advert to the question whether the right to cross-examination of the witnesses is available to the defendants/respondents. Plaintiff has submitted examination-in-chief on the affidavit of Shri A.S. Usmani, Advocate and Dr. S. C. Batalia. It is not in dispute that the defendants respondents are