Patna High Court
Chhatrapati Shivaji And Ors. vs The State And Ors. on 23 October, 1989
Equivalent citations: AIR1990PAT157, 1990(38)BLJR439, AIR 1990 (NOC) 157 (PAT), 1990 BLJR 1 527, (1990) 2 TAC 340, (1990) 2 CURCC 383, (1990) 2 ACC 421, (1990) 1 BLJ 540, (1990) 2 PAT LJR 29
ORDER
1. Shri Chhatrapati Shivaji, an Advocate of this Court has filed C.W.J.C. No. 5942 of 1989 while his clients Janardan Prasad Roy and Kamla Roy have filed C.W.J.C. No. 5338 of 1989 challenging the order dated 26-4-1989 passed by the learned IVth Subordinate Judge, Patna, in Partition Suit No. 105/1984 allowing the petition, of respondent No. 3 by cancelling the Vakalat-nama of the Advocate petitioner and debarring him from conducting the suit on behalf of the plaintiffs (petitioners). Both these writ petitions arise out of the same order. So with the agreement of the learned counsel the parties are being heard and disposed of by this common order.
2. A partition suit No. 105/84 has been filed by Janardan Pd. Roy and Kamla Roy in respect of certain properties said to have been left by Kailash Roy, Smt Phuleshwari Devi is defendant No. 33 in the suit. The Schedule-II of the plaint relates to a house with land bearing Municipal Survey plot No. 611 and 664 Circle No. 20/B Ward Nos. 19, Holding No. 108/193 measuring 9 kathas 7 dhurs at Mohalla Nala Road, Kadamkuan, Patna. It is said in the plaint that the land was purchased in the year 1955 out of the funds supplied by Tulsi Roy and from joint family fund as well as contribution made by other family members the house was constructed. This contention of the plaintiff has been fully supported in the written statement filed by defendant No. 33. On this basis the two plaintiffs have claimed unity of title and possession between the parties in respect of the said house and land. There is another suit No. 202/84 filed by defendant No. 1 (of the title suit No. 105/84) for declaration of his title and eviction of the defendant (who are plaintiffs in suit No. 105/84) from the portion of the house bearing holding No. 108B (which also is the subject matter of the suit in T.S. No. 105/84). The mother defendant No. 33 of the suit No. 105/84 is also defendant No. 2 in T.S. No. 202/84 and she too has filed written statement making the same averments as said in the plaint of T.S. No. 105/ 84. Both the suits being analogous are being tried by the same court below.
3. The defendant No. 1 in T.S. No. 105/ 84 has produced the photostat copies of the affidavits of Smt. Phuleshwari Devi dated 7-7-79, the originals of which are also on the record of the court below after being called for. These affidavits contain identification made by this petitioner-Advocate. In those affidavits Smt. Phuleshwari Devi has stated that neither she nor her husband holds any land and house in the urban area of Patna on 7-7-79. Defendant No. 1 has, therefore, on the basis of these affidavits, urged that the whole case of plaintiffs and defendant No. 33 (T.S. No. 105/84) is demolished The defendant No. 1 also filed petition calling for the original of the aforesaid affidavits of defendant No. 33. In the rejoinder affidavit, which was signed by Shri Chhatrapati Shivaji Advocate-petitioner, it has been alleged that the above mentioned documents are manufactured and are not genuine documents. At the same time, the petitioner-Advocate also supported at the bar the said averments made in the rejoinder affidavit. While arguing the case he also did not deny the fact that he had identified Smt. Phuleshwari Devi on the aforesaid affidavits dated 7-7-1979. On these matters, it was said by the defendant (T.S. No. 105/ 84) and plaintiff in T.S. No. 202/84, that the petitioner-Advocate was a material witness to prove or disprove the genuineness or otherwise of the aforesaid affidavits. The learned trial court, after hearing the learned counsel for the parties has passed the impugned order.
4. Since the parties have exchanged affidavits, these writ applications are being disposed of at the admission stage itself. It may also be mentioned that respondent No. 3 in both the writ petitions is a sitting Judge of this Court, but on our asking, the learned counsel for both sides fairly and frankly said that they have got no objection if this Bench decides these cases.
5. Learned counsel for the petitioners has urged that the order is bad in law as this order violates Article 19(1)(g) of the Constitution of India; that the learned Subordinate Judge had no jurisdiction to pass the order under Section 151 C.P.C. that the order is in violation of the provisions contained in Advocates Act, 1961 and Bar Council of India Rules; that the judgment given in the case of Kamla Prasad Roy v. Binod Kumar Roy, 1988 Pat LJR 975 has not been correctly appreciated by the trial court; that the order has caused obstruction in due course of justice by interfering with the legal right of the petitioner and his client; that double standard has been followed in passing the order and also that the order cancelling vakalatnama is mala fide and made with ulterior purpose.
6. Learned counsel for the respondents has stated that in view of the fact that the petitioner Advocate has identified the lady on the affidavits and that he has also argued and supported the version given in the rejoinder that the document was manufactured, the petitioner-Advocate is a material witness and so he cannot appear in both the capacities, as lawyer or a witness, and that the court has passed the order in accordance with law.
7. That questions that arise in this case are (i) as to whether an Advocate, who has become a material witness, can appear as a counsel in this case or not; and (ii) whether the court had got power to pass the impugned order or not under Section 151 C.P.C.
8. The courts have made various pronouncements in this behalf, which will be relevant to refer hereinafter.
9. In the case of D. Weston v. Peary Mohan Dass (1914) ILR 40 Cal 898 : AIR 1914 Cal 396 the Full Bench has observed that as a general practice it is undesirable, when the matter to which counsel deposes is other than formal, that he testifies either for or against the party whose case he is conducting. In the case of Lodd Govindoss V. Rukmani Bhai AIR 1916 Mad 5 at page 7 a learned single Judge observed that "though it is no doubt desirable that counsel ought not to appear in a case where it is probable that his evidence would be material, I do not think that there is any inflexible rule that his evidence ought not to be taken. If, at any stage of the suit, it becomes necessary to do so, to lay down such a hard and fastrule would often defeat the ends of justice." Division Bench of this Court in the case of Chandreshwar Prasad Narain Singh v. Bisheshwar Pratab Narsin Singh AIR 1927 Patna 61 observed at page 79;
"I certainly think that it is desirable that a Vakil should not appear in a case if he knows or has reason to believe that he will be an important witness in the case; and that he ought to retire if he accepts the brief not knowing or having reason to believe that he will be such a witness but discovering after-wards that he is a witness on a material question of fact. We have however no rule of professional conduct regulating the vakils in this matter, and it is impossible for us to lay down any rule which would be binding on them."
In Sabitri Thakurain v. Mrs. F.A. Savi AIR 1933 Patna 306 it was observed at page 327 :
"It is undesirable that a lawyer should appear in a case in which he knows or has reason to believe that he would be an important witness, there is no harm in his giving evidence in a case in which he is appearing."
In the case of Sita Rani v. Ram Lal AIR 1930 Lah 361 (2) a learned single Judge observed at page 362 that it was improper for the counsel Who evidently intended all along to appear as a witness for the plaintiff to have conducted the case on his behalf and that it would be improper for this Court to sanction any such procedure.
In the case of Hool Raj v. Manohar Lal AIR 1938 Lah 204 a Division Bench relying upon the decisions of D. Weston v. Pearey Mohan Dass (supra) and Sita Ram v. Ram Lal (supra) observed at page 206 that the appearance of the counsel in which he was witness for the plaintiff was not in accordance with the interests and the tradition of the Bar, and that a counsel is not competent to give evidence, whether the facts to which he testifies occurred before or after his retainer. As a general practice, it is undesirable that when a matter to which counsel deposed is other than formal, he should testify cither for or against the party whose case he is conducting.
A learned single Judge of the Madras High Court in re Kandan Padayachi AIR 1938 Mad 878 observed that a lawyer cited as a witness for the prosecution will not disqualify him from appearing as a counsel for the accused in the case. Nodoubt, it is not in accordance with the professional etiquette for a lawyer who has given evidence as a witness for the prosecution to accept or to continue to hold a brief from the accused. This is not the case here. The mere citing of an Advocate as a witness by the police does not operate as a disqualification.
In the case of Emperor v. Dadu Rama Surde AIR 1939 Bom 150 a Division held :--
"The question whether the Court has jurisdiction to forbid an advocate to appear in a particular case involves the consideration of conflicting principles. On the one hand an accused person is entitled to select the advocate whom he desires to appear for him, and certainly the prosecution cannot fetter that choice merely by serving a sub poena on the advocate to appear as a witness. On the other hand, the Court is bound to see that the due administration of justice is not in any way embarrassed. Generally, if an advocate is called as a witness by the other side. It can safely be left to the good sense of the advocate to determine whether he can continue to appear as an advocate, or whether by so doing he will embarrass the Court or the client. If a Court comes to the conclusion that a trial will be embarrassed by the appearance of an advocate, who has been killed as a witness by the other side, and if, notwithstanding the court's expression of its opinion, the advocate refuses to withdraw in my opinion in such a case the Court has inherent jurisdiction to require the advocate to withdraw. An advocate cannot cross-examine himself, nor can he usefully address the Court as to the credibility of his own testimony, and a Court may well feel that justice will not be done if the advocate continues to appear. But, in my opinion, the prosecution in such a case must establish to the satisfaction of the Court that the trial will be materially embarrassed, if the advocate continues to appear for the defence."
In the case of Mohamed Ghazi v. U Tun Kywe AIR 1939 Rang 342 a learned single Judge observed at page 343 :
"In Burma, the discipline and control of pleaders is vested in the Courts by the Legal Practitioners Act, and for the proper control of the profession it is essential that the Courts should have authority to refuse to permit a particular pleader to appear on behalf of a particular person in a particular case when it would be gross misconduct on the part of the pleader so to appear. This power has always been recognised and acted on. But the Courts are always slow to interfere with the general right which a party has to be represented by the pleader of his choice, and a very strong case must be made out before an order restraining a pleader from acting in a particular case will be passed. For instance, if a pleader has accepted a retainer from one party, or has at an early stage been engaged by one party and has received confidential information from that party, he will not be permitted to appear for the other party. But the mere facts that the defence asserts that the pleader for the prosecution will be required as a witness for the defence, and that the Magistrate himself thinks that he will be a material witness for the defence, are not sufficient grounds for restraining the pleader from appearing in the case for the prosecution. A pleader who is conducting a case is nevertheless a competent witness therein, and there is no harm in his giving evidence in a case in which he is appearing; (1914) ILR 40 Cal 898 : (AIR 1914 Cal 396 (FB); (1926) ILR 5 Pat 777 : (AIR 1927 Patna 61) and (1933) ILR 12 Pat 359 : (AIR 1933 Patna 306). But it is desirable that a pleader should not appear in a case if he knows or has reason to believe that he will be an important witness in the case, and no self-respecting pleader should conduct a case under such circumstances; if he accepts the brief not knowing or having reason to believe that he will be such a witness, but discovers subsequently that he is a witness on a material question of fact, he should retire from the case; (1926) ILR 5 Pat 777 : (AIR 1927 Patna 61)"
In the case of re C. S. Venkatachariar, First Grade Pleader and R. S. Second Grade Pleader AIR 1942 Mad 691 a Special Bench observed at page 692 that a person who is appearing as counsel should not give evidence as a witness. If in the course of proceedings it is discovered that he is in a position to give evidence and it is desirable that he should do so, his proper course is to retire from the case in his professional capacity.
In the case of All India Reporter v. Moghe AIR 1950 Nag 110 a learned single Judge after referring to catena of decisions of various Courts has said at page 114:
"If a counsel is a material witness it will not be right for a Court to ask a party not to examine him as a witness. The proper course would be to ask the counsel to withdraw provided the Court is fully satisfied that his evidence will not be of a formal character. It should bear in mind that this power is not to be lightly exercised. It should closely examine the object of the application of the party seeking withdrawal of a counsel of the opposite party. If the object is to prejudice his opponent the application should be turned down. If, however, the application is bona fide and the Court is satisfied that the evidence will be relevant and important, and the withdrawal will be conducive to the proper trial, it may direct withdrawal of the counsel. I am not impressed by the argument that a Court, even though it is satisfied that it will be improper for a counsel to appear is neverthless powerless to act in the matter. The Court is the final authority in all matters affecting smooth and proper trial of a suit. I hold that a Court has authority to direct withdrawal of a counsel if it comes to the conclusion that his evidence is material and his appearance in the Court in the capacity of a lawyer would embrass the trial of the suit."
In the case of Public Prosecutor, Andhra Pradesh v. Kothakapu ' Etreddy Venkata Reddi AIR 1961 Andh Pra 105 a Division Bench observed at page 109 para 7:--
"But even when circumstances exist from which a reasonable inference can be raised that confidential information could have been imparted that would, in our view, preclude an advocate from appearing for the opposite party, not on the ground pf professional misconduct, but as an improper conduct for an advocate maintaining the highest traditions of the Bar to adopt. We, therefore, did not agree with the learned Advocate that only in such cases where he is liable under the professional misconduct can be prevented from appearing for the opposite party.
Even apart from any contractual obligation, the Court will, in the exercise of their powers to maintain the highest traditions of the Bar and the profession, preclude advocates from appearing for the opposite party if that is likely to embarrass the advocate or raise a suspicion in the mind of the client with respect to the conduct of his erstwhile advocate or that it is not gentlemanly conduct or that it is improper to do so, or the circumstances are such from which an inference of imparting of confidential nature of information can be raised."
In the case of Chenna Reddi Veera Reddi v. Chillakuru Rama Chandra Reddi 1964(1) Cri LJ 89 a learned single Judge of Andhra Pradesh High Court agreeing with the observation made in the Public Prosecutor (supra) observed in para 2 :
"Advocates are members of a highly honourable and learned profession and it is expected that they would do nothing which would adversely affect the reputation and good name of the profession to which they belong. On ethical and professional grounds if it appears that continuance on the part of an advocate in a case is liable to objection I have reason to hope.and trust that in that event he would dissociate himself keeping in view the highest traditions of the profession, Inference by the courts in the matter of regulation of conduct of the advocates should be, in my opinion, only in very exceptional circumstances and the courts must desist from any action which is likely to injure or jeopardise the interests of the profession. 1 leave it to the advocate concerned to Judge for himself whether it would be proper for him to continue to conduct the case on behalf of the 1st petitioner".
After the enforcement of the Advocates Act power of control over the functions of the Advocates has been vested in the State Bar Council as well as Bar Council of India. Section 6 provides for the functions of the State Bar Council while Section 7 for these of the Council of India. The Rule 13 is Chapter-II-Part VI of the Bar Council of India Rules 1965 which have been framed under the Advocates Act of 1961, lay down as follows:--
"That an advocate shall not accept the 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 become apparent that he is a witness on material facts, he should not continue to appear as an advocate if he retires without jeopardising his client interest."
Thus by this Rule, the Advocate has been prohibited from appearing for his client if he becomes a material witness. The violation of the Rules now can bring the Advocate concerned within the clutches of professional misconduct and so proceedings can be started in an appropriate case. Therefore, the Advocate has been advised in this rule that in such a situation he himself should not continue as a counsel for the party.
In the case Of S. R. Chanaveerappa v. B. Prakash (AIR 1971 Mys 184) a learned single Judge observed at page 185 in paragraphs 5 and 6:
"Every litigant before a court of law has a right to engage the services of a counsel of his choice. A counsel, though in pursuit of a profession, is an officer of the Court assisting in the administration of justice by it. He cannot be both a witness and counsel in one and the same suit. The court has the power to determine the 'Vakalatnama' of a counsel in case of misconduct on the part of such counsel or when his appearance in a suit is likely to embarrass a fair trial of such suit. Broadly speaking in cases where a counsel is also called upon to figure as a witness, the situation arising therefrom may be said to belong more properly to the sphere of professional etiquette, and a counsel in such cases is a better Judge of the manner in which his discretion ought to be exercised.
But if he is a witness in regard to a material fact, and still persists in retaining both the capacities, that of a witness as well as counsel, his attitude may amount to misconduct, in which event, the court can step in and remedy the situation by determining the 'Vakalatnama' in his favour.
There may be cases on the border lines. In such cases the court had to see whether the party, desiring such a result, is actuated by oblique motives of depriving the opponent of the services of a counsel of its choice. It is equally clear that it is not open to a counsel to withdraw or to a party to terminate services of its counsel without the leave of the Court. Generally speaking, it is only in exceptional circumstances that a counsel can be forbidden from appearing for any party. In this connection, one may usefully refer to certain observations in the following reports :
In Halsbury's Laws of England, Simonds Edition, Vol. 3, at P. 68, it is observed thus :--
"A barrister should not act as counsel and witness in the same case; and he should not accept a retainer in a case in which he has reason to believe he will be a witness on a material question of fact, he ought not to continue to appear as counsel if he can retire without jeopardising his client's interests.
In subsequent proceedings counsel can, if he chooses, give evidence of what he has seen 6r said in court when engaged as counsel. If counsel is called as a witness by his client, he cannot, it seems, refuse to give evidence. Counsel should not give a proof of evidence of what occurred at a hearing in which he was professionally engaged.
In the case of Mohd. Sabir v. The State 1981 Cri LJ 1120 a Division Bench of the Delhi High Court referred to the aforesaid decision of Chenna Redd.y Veera Reddi v. Chilakuru Rama Chandra Reddi (1964 (1) Cri LJ 89) (Andh Pra) (supra) where it has been held that after the passing of the Advocates Act the Bar Council has been given the disciplinary power against the Advocate, if found to be remiss in performance of the duties and that no Court is invested with any jurisdiction to control the action of Advocate who is cited as a witness and he wants to represent an accused in a criminal trial.
In the latest decision of Kamla Prasad Roy v. Binod Kumar Roy 1988 Pat LJR 975 a case between the parties to these very writ applications, it was observed by a learned single Judge of this Court that a plain reading of rules 1 to 8 of the Rules(Bar Council of India) framed by the Bar Council it is manifest that the strict restriction has been imposed upon the Advocate as to what he shall do but so far as Rule 9 is concerned, it appears to be recommendatory as it is expected from Advocate that he will decline to appear in such cases in which he is himself pecuniarily interested. Further it appears that Rule 9 of the Bar Council of India Rules merely lays down a code of conduct for a counsel. A responsible counsel is a best Judge as to what code of conduct he should adopt. If the learned counsel having considered the pros and cons of the matter, is of the opinion that he is not debarred from appearing in the case and insist to appear in the matter, his opinion with regard thereto should be treated as final and this Court should not sit in appeal over the same.
10. This is what the courts have been holding from time to time before the advent of the Advocates Act and even thereafter. They have thought it undesirable as a general practice when the matter was more than formal. The appearance of the counsel in the case in which he is a witness, for the plaintiff is not in accordance with the interest and traditions' of the Bar. If the Advocate is called upon to be a witness in that very case, then it should be left to the good sense of the Advocate: It' may cause even embarrassment to the counsel himself, if he continues, for the reason that he cannot cross-examine himself nor he can address the court as to the credibility of his own testimony. So the gentlemanly conduct requires him to himself withdraw from the case to avoid any embarrassing or awkward situation. The Rule 13, as quoted earlier, therefore now is clear that in case the lawyer becomes a witness, he should not continue as a lawyer without jeopardising the interest of his client. Therefore in this case, where the petitioner-Advocate has to face the situation of admitting his identification on affidavits and also of saying that the documents are forged, then he is in an embarrassing position. He will have to argue against the interest of his own clients. If he identified a forged document, then its effect will he on the lawyer himself. If the document is not forged, then his clients may lose their case on the basis of his arguments. In this situation, the lawyer himself should have offered to withdraw himself, even without any application, obser vation or order. The court in these circum stances has rightly passed the impugned order.
11. Professional etiquette has been the back bone of the conduct of the counsel in the Courts, Counsel have always maintained their status as above everything and they have never allowed any embarrassment or awkward position to any one before a Court. They have always extended values, decencies and courtesies not only to the Courts, but to themselves on both the sides and also to the parties for or against whom they appear. Interest of justice has always been above everything to them and that is why in spite of there being no code of conduct being prescribed the Advocates have their own ways and manners in every sphere of the activities of the Court and due to that the lawyers have always been respected, regarded and have been commanding confidence of all concerned. This truth is known, to all that since the inception of the profession of law the lawyers, at all levels, have with great dignity, integrity, honesty and sincerity maintained the high standard and position of their, profession and its ethic. They have also with same zeal and devqtion preserved the fragrance of dignity, decency, mutual regard and respect, courtesy, pleasantness, etiquette and noble traditions in the Courts of which they are an integral part, by giving their fullest and honest assistance to the Judge in dispensation of justice. The counsel maintain their standard, calibre and atmosphere of high integrity, honesty, decency, impartiality and courtsey.
12. Even after coming into force of the Advocates Act, the lawyers themselves are the best Judge of their conduct, though they have been subjected to certain rules and regulations, but these are only for the sake of guidance if needed in rare cases.
13. aS to the question of exercise of power under Section 151 C.P.C. by the Court, it has been exercised by the courts because there were no rules and the lawyers were under the protection of the Courts. Though after the enforcement of the Act the enrolment of the lawyers and their professional conduct has gone over to the Bar Council Control yet the Courts are not divested of any of its inherent powers with respect to lawyers in the Court. Still they have protection and guidance of the Court, but for their conduct they are regulated by the Advocates Act. In Civil matters inherent power under Section 151 C.P.C. can be exercised by the civil Courts. So far Criminal Procedure Code is concerned the High Court alone has exclusive inherent power under Section 482. This inherent power under Section 151 C.P.C. has not been conferred on the Court, but it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. This is what has been said by the Supreme Court in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527 in the following words :--
".....The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it."
These inherent powers are to be exercised for the ends of justice and to prevent the abuse of the process of Court. If an application is made by any party for the withdrawal of the counsel who has become a witness, the Court is to see that the application has been made bona fide. 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.
14. In the result, the court below was well within jurisdiction to exercise this inherent jurisdiction and following the Rule 13 of the Bar Council Rules, in not allowing the petitioner Advocate in conducting the case any further. This exercise of power by the court is neither mala fide nor arbitrary, but in the interest of justice and for fair and free proceedings in the case. Therefore, both the writ petitions, being devoid of merit, are dismissed. However, there will be no order as to costs.