Gujarat High Court
Gurunanak Provisions Stores vs Dulhonumal Savanmal And Ors. on 16 April, 1993
Equivalent citations: AIR1994GUJ31, (1993)2GLR1693, AIR 1994 GUJARAT 31
JUDGMENT J.N. Bhatt, J.
1. The appellant has questioned the legality and validity of the judgment and decree passed in Civil Suit No. 1007 of 1973, in favour of the respondent-original plaintiff, by City Civil Court, at Ahmedabad, on 9th September, 1976, by invoking the provisions of Section 96 of the Code of Civil Procedure ("Code" for short).
2. The respondent filed the above suit against the appellant, for the recovery of money on the basis of a promissory note. The parties are hereinafter referred to as "plaintiff and "defendant" for the sake of convenience and brevity.
3. The plaintiff, by filing the above suit, claimed an amount of Rs. 5,350/-, contending that the defendant, who was carrying on the business of provision store, had executed a promissory note of Rs. 5,000/-, on 16-8-1972, as he required funds for his business. The defendant, in his written statement, Ex. 22, inter alia, contended that he had not executed the questioned promissiory note. It was also alleged that, the plaintiff forged the said promissory note, at Ex. 33, by re-using the signed four revenue stamps on another promissory note, which was satisfied. A revenue stamp, known as 'refugee stamp', was also alleged to have been subsequently affixed. He also questioned the liability for payment of interest at the rate of 12 per cent per annum.
4. Pursuant to the pleadings of the parties, issues came to be framed, at Ex. 24. Upon analysis and examination of the evidence adduced by the parties in the course of the proceedings, the trial Court reached to the conclusion that the defendant had executed the questioned promissory note, Ex. 33, and the plaintiff is entitled to recover the amount of promissory note with interest at the rate of 6 per cent per annum from the date of the suit till realisation with costs and passed the decree. Hence, this appeal.
5. Having examined the facts and circumstances and the evidence emerging from the record of the present case, the impugned judgment and decree are not sustainable and supportable. The observations of the trial court with regard to the execution of the promissory note, at Ex. 33, with due respect, are not proper and sustainable. The trial Court has also seriously erred in appreciating the evidence on record.
6. Apart from other evidence on record, a plain perusal of the questioned promissory note, at Ex. 33, indicates that, the four revenue stamps of denomination of 10 paise each must have been affixed after the earlier signature of the defendant thereon. The manner and mode in which the signature of the defendant is made on the four revenue stamps and the type and the pattern in which the same are affixed on the questioned document, undoubtely, leads to an unerring and only inference that the same must have been reused. It is not in dispute that the parties had previous transactions. The plaintiff appears to be a money lender. It is an admitted fact that the plaintiff used to advance and the defendant used to take loan, in past. The contention of the defendant that, he has not executed the promissory note, Ex. 33, and that, signed four revenue stamps are re-used by the plaintiff thereon is fortified from the set of surrounding facts and circumstances, and the evidence on the record of the present case.
7. The plaintiff placed reliance on his evidence as well as the evidence of his uncle-Gulabrai, at Ex. 39. The defendant relied on his evidence as well as on the evidence of one advocate, Mr. R. N. Giriani. The evidence of the defendant and his witness, advocate Giriani, is not believed by the trial Court and the trial Court has committed serious error in discarding the evidence of the defendant and his witness, Advocate Mr. Giriani. Upon a close scrutiny of the evidence on record, it becomes evident that the plaintiff has failed to show that the defendant had executed the questioned promissory note, at Ex. 33, dated 16-8-1972.
8. No doubt, the witness of the defendant, Mr. Giriani, examined at Ex. 50, supports the version of the defendant. Mr. Giriani is a practising advocate in the City Civil Court since 1969. As such, the plaintiff had approached him in connection with the filing of suit on the basis of the promissory' note, Ex. 33. It is his evidence that, after seeing the promissory note, Ex. 33, the basis of the suit, which he found blank with four signed revenue stamps thereon, he felt that the said revenue stamps might have been re-used by the plaintiff. Therefore, he did not agree to file the suit on behalf of the plaintiff. It appears clearly from his evidence that, when the plaintiff approached him with promissory note, Ex. 33, he found that except the printed version, there were no hand writings thereon. Even the refugee revenue stamp was not affixed thereon at the time when it was shown to him by the plaintiff.
9. The question, which now falls into sharp focus, at this stage, is as to whether the testimony of Mr. Giriani, at Ex. 50, is hit by the 'provisions of Section 126 of the Indian Evidence Act, 1872 (Evidence Act) or any other provisions thereof. Section 126 of the Evidence Act deals with all professional communications between a legal advisor and a litigant or a client, which are protected from disclosure.
10. It would be, therefore, at this stage, very relevant to have a close look into the provisions of Section 126, which read as under :--
"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 purpose of such employment :
11. Provided that nothing in the section shall protect from disclosure--
(1)Any such commuication made in furtherance of any illegal purpose.
(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
It is material whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.
Explanation -- The obligation stated in this section continues after the employment has ceased."
12. Section 127 of the Evidence Act even provides that the provisions of Section 126 shall also apply to the interpreters and the clerks or servant of barristers, pleaders attorneys and vakils. Section 126 of the Evidence Act provides that, if any party to a suit gives evidence therein at his own instance otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 126 and, therefore, if any party to a suit calls any such barrister, advocate, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he question such person, namely, advocate, vakil, barrister or attorney, on matters for which, but for such question, he would not be at liberty to disclose. It will be also interesting to mention, at this stage that, in Section 129 of the Evidence Act, no one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his professional advisor, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence, which he has given, but no others.
13. It would very well be seen from the aforesaid provisions incorporated in Sections 126 to 129 of the Evidence Act that, they deal with professional communications between the legal adviser and the client, which are protected from disclosure. Neither a legal adviser nor his interpreter, clerk or even servant could be permitted to disclose any communications made to him in the course and for the purpose of professional employment of such legal adviser or to state the contents or condition of any documents with which any such person has become conversant in the course and for the purpose of such employment. The aforesaid provisions are, undoubtedly, enacted for the protection of the interest of the client and obviously not of a lawyer. It is also based on the impossibility of conducting legal business without the professional assistance and on the necessity in order to render that assistance effectual of securing full and unreserved communi-cation between the adviser and the client. Instructions to counsel or legal advisers are also privileged documents.
14. No doubt the privilege afforded under the aforesaid provisions to a legal adviser is of a very limited character. It protects only such communications as are made to the legal adviser in confidence in the course and for the purpose of his employment. No doubt, it is true that mere absence of litigation or prospect thereof, at the time the confidential communications are made will not constitute an excuse for its disclosure, The obligation incorporated in Section 126 will remain operative even after the employment and does not get terminated by the termination of the litigation or the death of the parties.
15. It may also be mentioned that a failure on the part of the client to claim privilege where he is under cross-examination does not amount to "express-consent" given by him to his legal adviser or to disclose a confidential communication, which is otherwise privileged under the provisions of Section 126 of the Act.
16. A legal adviser is also not permitted to state the contents and conditions of documents with which he has become familiar or acquainted in the course and for the purpose of his professional employment. It is very clear from the aforesaid provision that the protection of Section 126 shall not extend to any communications made in furtherance of any illegal purpose or to any fact showing that a crime or a fraud is committed since the commencement of the employment, as contemplated under the proviso to Section 126 of the Evidence Act. However, under the explanation to the said Section, if a document is once privileged, it is always privileged. The fact that it is being inquired about in another action will not destroy the privilege. The advocate or the legal adviser cannot give evidence of a communication made to him without the express consent of his client. An advocate engaged by two parties cannot make disclosures in a proceeding between a third party and one of the clients without the express consent of other client though as between them, there can be no secrecy.
17. It is very clear from the provisions of Sections 126 to 128 that they contemplate a case where the legal adviser, interpreter, clerk or servant of the legal adviser is interrogated as a witness; whereas Section 129 contemplates a case where the client himself is interrogated on a privileged communication, and provides that he cannot be compelled to disclose any confidential communication, which has taken place between him and his legal adviser. Therefore, it becomes clear that, if the client offers or decides to disclose any such communication, there is nothing to prevent him from doing so, the privilege being his and not that of a legal adviser. Further, if the client gives any evidence and it becomes necessary to know any confidential communication for the purpose of explaining any part of the evidence he has given, the client may then be compelled to disclose such communications. It should also be noticed that, whereas, Section 129 protects from disclosure only confidential communications, Section 126 protects all communications made in the course and for the purpose of professional employment.
18. The privilege contemplated in the aforesaid provisions is a privilege of the client and not of the professional adviser. The legal adviser, therefore, is bound to claim the privilege unless the client has given consent. The privilege does not depend upon the client being a party to the proceeding. When the client is not a party, neither party to the proceeding can claim the privilege. Disclosure of professional communications without the client's consent may amount to professional misconduct.
19. It is very clear from the aforesaid provision of Section 126 that nothing therein shall protect from disclosure --
(1) Any such communication made in furtherance of any illegal purpose.
(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
20. Communications made in furtherance of an illegal purpose are, in the interest of public justice, expressly excluded from the privilege whether the legal adviser was a party to or ignorant of the illegal object. The existence of an illegal purpose prevents the privilege from attaching, for it is not the duty of the legal adviser to advise his client how to break the law or to contrive a fraud. No doubt, obviously, therefore, there ought to be a definite charge of fraud before the claim of privilege can be overruled. The word "illegal" is applicable to everything which is an office or which is prohibited by law or which furnishes ground for a civil action. A fraudulent advice to evade payment of probate duty is not privileged, as the purpose is illegal. Likewise, any advice or device to defraud the creditors will also not be privileged. It may be noted that the defence of a person who confesses to have committed an offence is not an illegal purpose; but the purpose is clearly illegal, if the client wishes to obtain possession of property by the use of a forged deed and he requests the legal adviser to sue on such a document. A communication is privileged if it is made to a legal adviser by aclient after the commission of a crime and with a view to his defence, but it is not privileged if it is made before the commission of the crime or wrong and for the purpose of being guided or assisted in furthering or committing it.
21. Similarly, on the same analogy and principle, a factum is not protected from disclosure, which was observed by an advocate or an adviser in the course of his employment showing that any crime or fraud has been committed since the commencement of his employment. It is very clear from the illustrations attached to Section 126 that --
(a) A client says to an attorney -- "I have committed forgery and 1 wish you to defend me".
As the defence of a man known to be guilty is not a criminal purpose. This communication is protected from disclosure.
22. However, as stated in illustration (b), when a client says to an attorney "I wish to obtain possession of the property by the use of the forged deed, on which I request you to sue" this communication being made in furtherance of a criminal purpose, is not protected from disclosure. Similarly, the fact observed by the legal adviser in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings is also not protected from disclosure.
23. Having examined the facts and the circumstances emerging from the record of the present case and the aforesaid legal set up, the evidence of advocate Mr. Giriani, which is discarded by the trial Court, cannot be said to be forming privileged communication. It is obvious from the evidence on record that the plaintiff, after approaching the said advocate Mr. Giriani, desired to obtain a decree for money on the basis of a promissory note which was not genuine. The contention of the plaintiff that he had never engaged Mr. Giriani as his advocate is also falsified. It is crystal clear from the evidence of uncle of the plaintiff, Gulabrai, who had taken him to advocate Mr. Giriani, that Mr. Giriani was engaged by the uncle of the plaintiff in Civil Suit No. 1002 of 1972. Therefore, the plea of the plaintiff that he had never approached advocate Mr. Giriani and he had never sought any advice from him in connection with the questioned promissory note is without any substance and unacceptable. It appears from the record and evidence of advocate Mr. Giriani that, no writing except the printed form was found when he was approached by the plaintiff, on the questioned promissory note, Ex. 33. Since he found that the four revenue stamps purported to have been signed by the defendant were re-used on the promissory note, which was a blank one, he did not agree with the plaintiff and, in reality, differed from filing the suit on the basis of such a promissory note. This communication or advice tendered by advocate Mr. Giriani to the plaintiff, in the facts of the present case is covered directly by the proviso that any such communication, if made in furtherance of any illegal purpose, the protection available under Section 126 is lost. Likewise, any fact or communication observed or tendered by an advocate in the course of his engagement or employment as such, showing that any illegality or crime or fraud has been perpetrated since the commencement of his employment, then also the protection from the disclosure available under Section 126 is lost, The illustrations (b) and (c) in Section 126 of the Evidence Act clearly indicate that such a communication is not covered by the protection under Section 126. As can be very well observed from the reliable evidence on record, in the instant case, the questioned promissory note, Ex. 33, when shown to advocate Mr. Giriani, was blank without even a refugee revenue stamp and he found that the four signed revenue stamps were re-used on the questioned promissory note, Ex. 33. This is crystal clear from his testimony at Ex. 50 and, therefore, it cannot be said to be protected or privileged communication under Section 126 of the Evidence Act.
24. Since the communication or advice tendered by the advocate cannot be said to be protected or privileged one, whether it is immoral or unethical could not be gone into in this matter, at this stage, before this forum, and it will be for the appropriate forum to consider the same, if raised before it and found permissible, as advocate Mr. Giriani appeared as a witness of the other side.
25. In view of the correct and the critical analysis of the evidence on record, and the minute examination of the real tenor and the contents of the question document Ex. 33, and considering the very design and desideratum of the provisions of Section 126 of the Evidence Act, it becomes quite explicit that the impugned judgment and decree cannot be sustained as not only the plaintiff has failed to prove the execution of the questioned promissory note, but also the defendant has succeeded in showing that the said promissory note purported or alleged to have been executed by him is neither real nor genuine.
26. In the circumstances, the appeal must be allowed. While allowing this appeal, the suit ought to be dismissed.
27. In the result, the impugned judgment and decree are quashed and set aside. Consequently, the appeal is allowed and the suit shall stand dismissed with no order as to costs all throughout, in view of the peculiar and special circumstances obtaining in the instant case.