Madras High Court
K.Ponnammal vs A.Loganathan on 23 July, 2009
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 23.07.2009 CORAM: THE HONOURABLE MR. JUSTICE K.K.SASIDHARAN C.R.P.(PD).No.464 of 2008 & M.P.No.1 of 2008 1. K.Ponnammal 2. K.Panchalingam 3. K.Palanisamy 4. K.Subramanian 5. K.Siva Baggyam ... Petitioners -Vs.- A.Loganathan ... Respondent Civil Revision Petition against the order dated 8.8.2007 in I.A.No.200 of 2007 in O.S.No.46 of 2006 on the file of the Sub Court, Udumalpet. For Petitioners : Mrs.P.Indumathi For Respondent : Mr.R.Krishnan ---------- O R D E R
The respondents in I.A.No.200 of 2007 in O.S.No.46 of 2006 on the file of the Sub Court, Udumalpet are the revision petitioners.
2. The suit in O.S.No.46 of 2006 was preferred by the respondent against the revision petitioners praying for a decree of specific performance on the basis of a sale agreement entered into between the parties on 28.12.2005. The said suit was contested by the revision petitioners by filing written statement.
3. While the matters stood thus, the respondent filed an application in I.A.No.200 of 2007 seeking permission to summon one Thiru A.R.HariPrasad, Advocate, Udumalpet as a witness on his side to be examined as P.W.4.
4. In the affidavit filed in support of the application in I.A.No.200 of 2007 it was the contention of the respondent that the revision petitioners approached the said counsel for filing a suit on their behalf to declare them as legal heirs of their father Kandasamy Gounder. The said course was adopted as according to the respondent the petitioners have agreed to furnish the legal heir certificate before registration of the property and since they failed to produce the said certificate, the sale deed could not be executed on time.
5. The said application was resisted by the revision petitioners by filing counter. It was their contention that they never approached the counsel by name A.R.Hari Prasad for filing the civil suit on their behalf to declare them as the legal heirs of their deceased father. They have also contended that even if they have approached the said advocate, the respondent cannot call their counsel as a witness against them to speak about the alleged communication without their consent. Accordingly they prayed for dismissal of the application.
6. The learned trial Judge was of the view that there was nothing illegal in calling the Advocate as a witness and accordingly the application was allowed. It is the said order which is impugned in the civil revision petition.
7. According to the respondent, the petitioners have approached the counsel to file a suit for declaration. It was his further contention that he was not in a position to get the document executed on account of the failure of the revision petitioners to produce the legal heir certificate or declaration in respect of their status. Therefore in order to substantiate his contention that the petitioners at one point of time consulted the counsel to file a civil suit, he sought to examine the said counsel as a witness.
8. Section 126 of the Indian Evidence Act provides thus:-
"126. Professional communications.
No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his clients 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 professions employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure.
(1) Any such communications made in furtherance of any 1[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 no behalf of his client.
Explanation:- The obligation started in this section continues after the employment has ceased."
9. Section 126 of the Evidence Act was introduced to serve dual purpose. This provision protects the party as well as the counsel. The counsel is not expected to disclose or divulge the communication which he has received from his client in his capacity as a lawyer. However this is not applicable to a communication made in furtherance of any illegal purpose or in respect of a crime or fraud noticed by him in the course of his employment as a professional. It would be possible for the counsel to disclose the confidential communication with the permission of the party. This would also help the client to keep the information only with his counsel without exposing the risk of others coming to know of such information. The obligation as per the mandate of section 126 continues even after the cessation of the engagement as a counsel. Therefore the counsel is obliged to protect the interest of the client during the subsistence of the professional engagement and even thereafter.
10. This protective umbrella also saves the counsel from unwanted and unnecessary proceedings. In case the counsel was made to disclose the professional communication which he receives from his client in strict confidence, it would cause difficulties to the counsel as well as to the client. The counsel would be exposed to the risk of appearing as a witness in the proceedings in which his client was a party even after cessation of his engagement. After all the counsel is only carrying the brief of the client. He has no personal interest in the matter. He is a member of a noble profession and the Society considers him as indispensable. It is true that the lawyer has to show utmost care while dealing with the case of the clients. The lawyers cannot be identified with parties. Similarly for the fault committed by the parties, lawyer cannot be punished. In case proceedings are also taken against the lawyer for the acts or omission committed by their clients, no lawyer would be able to discharge his function without fear. This is an independent profession and as such the lawyer should be permitted to discharge his function without any external pressure. Therefore Section 126 was intended to take care of such situation.
11. According to the respondent, the lawyer engaged by the revision petitioners was bound to give evidence with respect to the communication given to him for the purpose of filing a civil suit. The said communication would come within the meaning of Section 126 of the Indian Evidence Act and as such the counsel cannot be permitted to give evidence without the consent given by the revision petitioners. The learned trial Judge has not considered this aspect at all and very mechanically granted permission to summon the counsel for the petitioners as a witness on the side of the respondent.
12. The learned counsel for the respondent relied on a judgment of the Kerala High Court in V. RAVI v. STATE OF KERALA (1994 CRL.L.J 162) in support of his contention. In the said case, the issue before the High Court was as to whether the counsel who has seen certain facts otherwise then during his professional engagement could be summoned as a witness. In the said case, the lawyer was sought to be summoned not for the purpose of disclosing any professional communication. It was only for the purpose of proving a fact which was observed by him as an individual, which has nothing to do with her profession he was summoned. It was only in such context, the court observed that the evidence tendered by the Advocate does not fall under Section 126 of the Evidence Act and it was admissible. The said judgment has absolutely no relevance to the issue involved in the present matter.
13. The learned trial Judge failed to consider the true spirit behind the mandatory provision as contained in Section 126 of the Indian Evidence Act and allowed the application.
14. Therefore I am of the view that the learned trial Judge erred in permitting the respondent to summon the counsel for the petitioners as a witness and as such the impugned order is liable to be set aside and accordingly the same is set aside.
15. In the result, the civil revision petition is allowed. Consequently, the connected MP is closed. No costs.
Tr/ To The Sub Court, Udumalpet