Judgment 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. 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 adverse party, they are not sailing in the same boat as that of the plaintiff. They are contesting the claim of the plaintiff. 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 adverse party, they are not sailing in the same boat as that of the plaintiff. They are contesting the claim of the plaintiff. Order 8 Rule.5 of C.P.C. provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. In the instant case in the reply to the application under Order 8 Rule 5 r /w 151 C.P.C. the factum of execution of the Will has been contested by the defendants respondents. Though they have not amended the written statement as sequel to the amendment made in the plaint, what is the effect of it has to be considered at the time of final decision. However, plaintiff has not remained satisfied with the defendant not filing consequential application for amendment. But, wants to prove the fact by examining the witnesses, the examination-in-chief in the shape of affidavits of Shri A. S. Usmani and Dr. S. C. Batalia has been placed on record before the trial Court. Order 8 Rule 5 C.P.C. does not come in the way of cross-examination of the aforesaid witnesses when once witnesses are being examined to prove the fact and their examination-in-chief has been placed on record by the plaintiff/ petitioner. In our opinion in the circumstance the defendant being adverse party has the right to cross-examine witnesses. It would be appropriate to refer to the decisions cited by Shri Alok Aradhe, learned counsel appearing on behalf of the petitioner. He has relied upon Section 137 and the decision in Karumanchi Subba Rao v. Yarlagadda Venkatappaiah and others, AIR 1978 Andhra Pradesh 193. The Section 137 of the Evidence Act has been referred to. Section reads thus : "137. Examination-in-chief.- The Examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination.- The examination of a witness by the adverse party shall be called his cross-examination. The Section 137 of the Evidence Act has been referred to. Section reads thus : "137. Examination-in-chief.- The Examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination.- The examination of a witness by the adverse party shall be called his cross-examination. Re-examination.- The examination of a witness subsequent to the cross-examination by the party who called him, shall be called his re-examination." It it apparent from Section 137 of the Evidence Act that the examination of witness by adverse party shall be called his cross-examination. We see no rhyme or reason even on the strength of Section 137 to disallow cross-examination as the defendants are adverse party they have to be permited to cross-examine the witnesses particularly when examination-in-chief has been filed in the shape of affidavits and plaintiff is not satisfied with the factual scenario of not filing consequential amendment in the written statement and want to prove the fact by examining the witnesses. The plaintiff has chosen the mode of examining the witnesses, in such circumstances, obviously right is available to the defendant particularly when denial of factum of Will has also been made in reply to the application. There is legal requirement to permit the defendants to cross-examine the witnesses. In Karumanchi Subba Rao v. Yarlagadda Venkatappaiah and others (supra) the Andhra Pradesh High Court has laid down that the adverse party has the right to cross-examine the witness. In the said case the Plaintiff as well as defendants Nos. 3. 4 and 7 were sailing together, said defendants have prayed for a decree in favour of the plaintiff which is not the case here. In the aforesaid context, it was held by the Court that the defendants Nos. 3, 4 and 7 cannot be said to have any statutory right to cross-examine the plaintiff. The decision is distinguishable and cannot be said to be applicable. Reliance has also been placed on Hussens Hasanali Pulavwala v. Sabbirbhai Hasanali Pulavwala, AIR 1981 Gujarat 190. After examining the scheme of Sections 137 and 142 of the Evidence Act the Gujarat High Court laid down that it would appear from the scheme of the aforesaid provisions of the Evidence Act that in order to cross-examine a witness, it must be shown that the party seeking cross-examination is an 'adverse party'. Such party should be contesting party. After examining the scheme of Sections 137 and 142 of the Evidence Act the Gujarat High Court laid down that it would appear from the scheme of the aforesaid provisions of the Evidence Act that in order to cross-examine a witness, it must be shown that the party seeking cross-examination is an 'adverse party'. Such party should be contesting party. In the instant case the defendants are not only adverse party, but, also the contesting one. Thus, they have the right to cross-examine the witnesses. 8. Counsel has also refered to the decision in Sadhu Singh v. Sant Narain Singh Sewadar and Ors., AIR 1978 Punjab and Haryana 319, in which the High Court has laid down that Section 138 allows the right of cross-examination of a witness to an adverse party. Where the parties arrayed as defendants in a suit have taken contradictory stands on a relevant and material issue, they shall be adversary to each other and are entitled to exercise their right of cross-examination against each other. In the instant case, as the defendants respondents are contesting the claim and they are adverse party they have the right to cross-examine, it is a different matter what questions they are required to put, but, right to cross-examine cannot be denied to them. Consequently, in our considered opinion, the trial Court has rightly rejected the application filed by the plaintiff petitioner under Order 8 Rule 5 r/w Section 151 C.P.C. 9. Coming to the question of counsel continuing as a witness in spite of having been cited as witness in the case. Bar Council of India Rules are not complete code with respect to the higher standard of professional ethics expected of a lawyer, what may still be proper for other may still be improper for a counsel. The expectation is of high ethical behaviour from a lawyer who is a privilege member of the community and expected to be a gentleman. Bar Council of India Rules are not complete code with respect to the higher standard of professional ethics expected of a lawyer, what may still be proper for other may still be improper for a counsel. The expectation is of high ethical behaviour from a lawyer who is a privilege member of the community and expected to be a gentleman. Rule 13 of the Rules contained in Chapter II Part -VI of the Bar Council of India Rules provides 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 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 jeopardizing his client's interests. In the instant case Shri A. S. Usmani has been cited as a witness, his examination-in-chief has been filed on affidavit under Order 18 Rule 4 of the C.P.C. First Part of said Rule 13 of Bar Council of India Rules provides 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. This requirement is dehors of the fact whether he is a witness on a material question of fact or not the mandate of first part of the rule cannot be ignored while interpreting the second part that he being engaged in a case, it becomes apparent that he is a witness on a material question of the fact, he should not continue to appear as an Advocate. The will is a material fact in the instant case on the basis of which the plaintiff is basing his case in order to get the declaration in question. The factum of Will is a material fact in the case, whether it is disputed or not is a different thing. Whether the deceased was having the right to execute the Will or not is also a question to be gone into. Consequently, considering the object of the professional ethics what may be proper for other may still be improper to Advocate. Whether the deceased was having the right to execute the Will or not is also a question to be gone into. Consequently, considering the object of the professional ethics what may be proper for other may still be improper to Advocate. In our opinion it would not be proper in the facts of case for Shri A. S. Usmani to continue as counsel of plaintiff once he is being examined as witness in the case on behalf of the plaintiff. He must volunteer to retire in the case once he has been cited as a witness. An Advocate cannot identify himself with the client it would n9t be proper for Shri A. S. Usmani to continue with the case. 10. We may also refer to the decision in Motilal v. Anandibai (supra) relied upon by Shri R. K. Sanghi, learned counsel appearing on behalf of the respondents Nos. 1 and 2 in which the apex Court has laid down that it is not proper for a lawyer to appear for a party in Court knowing that he was likely to be called as a witness in support of the Will which bears his attestation. Here the Will has been reduced in writing by Shri A. S. Usmani, consequently he may be aware of several facts, consequently, he should not continue as a counsel in the case. Identity of the counsel and judge should be totally independent of litigant. Full independence and detachment is required to work as counsel and Judge in a case. No such case when a counsel is cited as witness can be permitted to be handled by the counsel having personal knowledge of material facts. Consequently, we find that the order passed by the trial Court to be proper. Shri A. S. Usmani may be well advised to file his option also to voluntarily retire from the case in accordance with the order which has been affirmed by us failing which Court not to permit him to continue as counsel. 11. Resultantly, the writ petition being devoid of merit is hereby dismissed. No costs. Petition dismissed.