Abdhu v. Veeravu — 1990 DIGILAW 501 (KER)

Judgment :- 1. Two questions of some importance arise in this revision. They are: 1. Can a counsel appearing in a case summoned as a witness by the opposite party? and 2. Can the court direct the counsel to relinquish the vakalath in case he refuses to give up the vakalath? 2. Revision petitioner-plaintiff and respondent-defendant were partners of a firm by name "Trichur Cotton Stores". The partnership was dissolved as per a deed dt.14-10-1983. The deed contains a clause that all the out standings will be collected by the defendant and the dues will also be paid by him. Tax due to Government was collected from plaintiff and he wanted the share of defendant to be reimbursed by him by filing O.S. 879/1987 before Sub Court, Thrissur. The suit was resisted by the defendant. Revision petitioner submitted a witness list containing the name of counsel for the defendant Sri. P.A. Surendranath and another counsel by name Sri Samuel. A petition was also moved as LA. 1955/1989 for permission to summon them as witnesses. The court below as per order dt. 5-1-1990 allowed that application. But that order was reviewed later on the application filed by the defendant as I.A. 142/1990. As per the order passed therein LA 1955/1989 was dismissed. That order is under challenge in this revision. 3. One of the witnesses sought to be examined by the plaintiff and included in the witness list is the counsel appearing for the defendant. The first aspect to be considered is whether he can be summoned as a witness by the plaintiff. The lawyer appearing for the opposite party cannot ordinarily be summoned as a witness since he shall not be permitted at any time to disclose professional communications. S.126 of the Evidence Act prohibits the lawyer to disclose any communication made to him in the course of and for the purpose of his employment as such lawyer by or on behalf of his client. He cannot also be asked 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. He should not disclose any advice given by him to his client in the course and for the purpose of such employment. He cannot also be asked 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. He should not disclose any advice given by him to his client in the course and for the purpose of such employment. But this privilege extends only to all communications between the client and his lawyer in the course of and for the purpose of his professional employment. The counsel may be in possession of other facts which had come to his knowledge otherwise than in the course of and for the purpose of his professional employment. Disclosure of such materials is not prohibited by S.126 of the Evidence Act. To prove such a fact, the intending party has to summon the lawyer as a witness to speak about that fact. If the court deals that the lawyer alone is competent to speak about a material fact relevant for the purpose of decision, there is no bar in the court summoning the lawyer as a witness for the opposite party. But before permitting a party to summon the counsel appearing on the opposite side, the court has to make an enquiry and should form an opinion that the evidence to be tendered by the lawyer is on a material question of fact on which he alone can tender evidence. There is sufficient indication to this effect in R.13 of Chapter II of Part VI of the Bar Council of India Rules, 1975 which reads thus: "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 interests". 4. The rule directs that 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 he is engaged in such a case and if it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate. But, if his retirement would jeopardise his client's interests, he need not disengage himself from the case. If he is engaged in such a case and if it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate. But, if his retirement would jeopardise his client's interests, he need not disengage himself from the case. This rule, therefore, makes it clear. that an advocate has a duty to withdraw from the suit in case he is summoned as a witness on a material question of fact. But he need not withdraw if such withdrawal would jeopardise his client's interests. 5. It is the specific case of revision petitioner that Sri. P.A Surendranath, Advocate engaged by the defendant had prepared the deed of dissolution of partnership and it was in his presence that both the parties discussed their problems and arrived at a settlement. Plaintiff sought the lawyer to be summoned to prove the fact of mediation and the drafting of the dissolution deed. Learned counsel for revision petitioner points out that the advocate was summoned to speak about a material fact which he alone can testify. In accordance with the interests and traditions of the Bar, the advocate should have withdrawn from the case. R.13 of the Bar Council of India Rules referred above comes under S. II under the head "Duty to the client". That section itself is contained in Chapter II under the caption "Standard of Professional Conduct and Etiquette". If any of the rules in Chapter II is contravened by any advocate, he can be proceeded against by the Bar Council for misconduct. Specific provision has been made in R.13 to see that an Advocate appearing in a case should not continue to appear as an Advocate if it becomes apparent that he is a witness on a material question of fact. The Advocate for the defendant in this case had participated in the mediation talks and is alleged to have drafted the dissolution deed. His testimony was necessitated in order to prove the events that took place at the time of mediation as well as the decisions arrived at in his presence. He is therefore a material witness in the case and the court below should have permitted the plaintiff to summon him as a witness on his side. 6. I am told that the advocate for the defendant has not withdrawn from the case. He is therefore a material witness in the case and the court below should have permitted the plaintiff to summon him as a witness on his side. 6. I am told that the advocate for the defendant has not withdrawn from the case. Having participated in the mediation talks and having become apparent that he is a witness on a material question of fact, it is only proper on his part that he should not continue to appear as an advocate for the defendant. The traditions to be followed by the members of the Bar had been mentioned by an eminent lawyer Sri P. S. Sivaswami Iyer in his forward to Justice Sundera Iyer's "Professional Ethics" thus: "It is the business and the duty of the advocate to make the best of his client's case am it is the province of the Court to weigh the contentions in the balance and determine on which side the right lies While it is the duty of the advocate to make the best of his client's case, it is his duty to conform to the rules of the game which have been laid down by the traditions of the English Bar, traditions inspired by an eminent love of fair play and by a deep sense of the duty of the profession to assist in the administration of justice". The power of the control over the functions of the advocate is now vested in the State Bar Council as well as the Bar Council of India. R.13 referred above prohibits an advocate from appearing for a party if he becomes a material witness. After it becomes apparent to the advocate that he is a material witness, the proper course open is to withdraw from the case. That is what has been provided in R.13 which states it unmistakable terms that the advocate should not continue to appear as an advocate. True a condition has been imposed that he should do so only if he can retire without jeopardising his client's interests. If he still persists in retaining the capacity as a counsel for a party and wants to honour the summons served on him to give evidence for the opposite side as a witness, his attitude may amount to misconduct. True a condition has been imposed that he should do so only if he can retire without jeopardising his client's interests. If he still persists in retaining the capacity as a counsel for a party and wants to honour the summons served on him to give evidence for the opposite side as a witness, his attitude may amount to misconduct. Revision petitioner has all the right to bring this fact to the notice of the Bar Council and it is for the Bar Council then to enquire into the conduct of the advocate. 7. The next aspect that falls for consideration is whether the court can direct the Advocate to relinquish the vakalath and withdraw from the case. This Court in Marikar (Motors) Ltd. v. Ravikumar (1988 (2) KLT 986) held that the advocate shall not be asked to relinquish the vakalath if the court or the authority concerned, after enquiry in the lines suggested above, is of the opinion that the disengagement of the Advocate from the case would jeopardise the interests of the party for whom the advocate appears. It was further held that if the court or the authority finds that an examination of the advocate as a witness is indispensable and hence the disengagement of the advocate from the case would not jeopardise the interest of the party for whom he appears, then the court or the authority concerned can ask the advocate to relinquish the vakalath. A Division Bench of the Patna High Court had occasion to consider this aspect in Chhatrapati Shivaji v. State (AIR 1990 Patna 157). It was held: "If it appears that the evidence to be given by the counsel is of formal nature, or that the application has been made with the intention of depriving the party of that counsel's assistance or with some ulterior motive, then such an application is liable to be rejected. Close scrutiny and examination of the situation is a must in this case. But if the Court finds that the prayer for the withdrawal of the counsel for the case is bona fide and without any ulterior motive and not to cause prejudice, but to advance the cause of justice, then it will be the duty of the court to order that the lawyer who has become a relevant and material witness should not appear as a counsel in the case further more". It has not been shown that the withdrawal of the advocate for defendant from the case would jeopardise the client's interests. The court has therefore every right to direct the advocate to relinquish the vakalath and withdraw from the case for appearing as a witness on the side of the plaintiff. The order passed by the court below earlier permitting the plaintiff to summon the Advocate for the defendant as a witness has therefore to be restored. 8. Learned counsel for respondent has raised a contention that the Advocate for the defendant is summoned to speak about the communication which had passed between him and his client and S.126 bars the Advocate from tendering evidence. This provision has been introduced in the Evidence Act for the protection of the interest of the client and not that of the lawyer. A party cannot be compelled to disclose any confidential communication made to his legal adviser and no lawyer shall at any time be permitted to disclose any communication made to him in the course of and for the purpose of his professional employment. This privilege applies to all communications made to the legal adviser in the course of such employment. But the question arises, as in this case, whether such privilege can be claimed where two parties had engaged the same lawyer. When parties having a common interest engage a common lawyer and discuss with him about matters common to both, the communications cannot be said to be privileged between the two persons, but they are clearly privileged from disclosure at the instance of a third party. Two persons having same dispute may approach a lawyer for his opinion and he would have been instructed by both of them about of the views of each. As between these two persons, no privilege can be claimed, but the lawyer can claim privilege only from disclosure at the instance of a third party. What is the test to be applied in such cases has been mentioned by Field in his Law of Evidences, 1985 Edn. Vol V at page 4613 thus: "Where the same attorney is employed by two parties, the test is - "Was the communication made by the party to the witness in the character of his own exclusive attorney?". What is the test to be applied in such cases has been mentioned by Field in his Law of Evidences, 1985 Edn. Vol V at page 4613 thus: "Where the same attorney is employed by two parties, the test is - "Was the communication made by the party to the witness in the character of his own exclusive attorney?". If it was, the benefit of secrecy is imposed on the attorney called as a witness; if it was not, the communication will not be privileged. If an attorney, acting for both parties, has an offer made to him by the one for communication to the other, he may be called upon to disclose the nature and terms of this offer at the instance of either party. But if an attorney, acting for one party by the direction of his client, makes a proposal to the opposite party, though he may be compelled to disclose what he stated to that party, he cannot divulge what his own client communicated to him." The learned author further observes that where two persons have a dispute about the claim made by one of them upon the other and both seek the help of a pleader, the statement to the pleader by one of the parties is clearly admissible. The question in such cases to be considered is whether the communication or admission was made in the character of his own exclusive pleader or legal adviser. If it is so, the bond of secrecy is upon the witness. If it is not, the communication is not privileged. 9. In the case on hand plaintiff and defendant had together gone to Adv. Sri. P.A. Surendranath and he is alleged to have mediated the disputes between the parties and thereafter prepared the dissolution deed. By that deed defendant had taken upon himself the liability to pay all the dues. The suit for reimbursement was necessitated since tax due from the partnership was collected from the plaintiff. It is in these circumstances that plaintiff wanted the Advocate for defendant to be summoned to speak about the terms of the settlement and the talks which led to it. At that time Sri Surendranath was not the exclusive lawyer of the defendant. He was engaged only after the filing of the suit That being so, there is no secrecy in the communication made to him at the time of mediation. At that time Sri Surendranath was not the exclusive lawyer of the defendant. He was engaged only after the filing of the suit That being so, there is no secrecy in the communication made to him at the time of mediation. Since both parties had approached him for the purpose of arriving at a settlement, the communication made to him in the course of the mediation is not privileged as between the plaintiff and the defendant. That privilege can be claimed only between a third party and any of the two parties who participated in the mediation. There is thus no bar of S.26 of the Evidence Act in summoning the advocate for the defendant as a witness, nor is there any legal bar in the advocate testifying about the talks which took place in his presence which resulted in the dissolution deed. For the reasons stated above, the impugned order is set aside and the order passed by the court below in I. A. 1955/1989 is restored. The parties shall suffer their costs in revision. Allowed.