JASBIR SINGH Vs. MALIK MUKHBAIN SINGH

JUDGEMENT

(1.) This is a petition under Article 227 of the Constitution directed against an order of the 1st Additional Rent Controller, Delhi, dated 5th March, 1968, requiring the petitioner's counsel to withdraw from the ejectment proceedings pending against the petitioner. The view that I am taking of the matter renders it unnecessary to state the facts very elaborately.

(2.) Malik Mukhbain Singh, respondent herein, (hereinafter referred to as 'the landlord'), filed a petition for ejectment against the petitioner, which is pending in the Court of the 1st Additional Rent Controller, Delhi. The petitioner was, and is being, represented by Sardar Janak Singh,Advocate. The advocate when called upon to admit or deny certain documents, admitted some but denied the rest. The landlord then made an application that the Advocate be examined as a witness. It is the claim of the landlord that before doing so he even issued interrogatories to the petitioner to admit or deny those documents but the interrogatories were not answered. Having failed to secure the admission and/or denial of the documents, which consist of pleadings and depositions in suits filed by the petitioner against his tenants, the landlord filed the application for examination of the Advocate as a witness. It appears that at least one of the grounds adduced by the landlord in seeking ejectment of the petitioner is the personal bona fide requirement of the premises and the landlord wanted to prove certain depositions and pleadings in suits filed by the petitioner against his own tenants in another building. Order dated 17th October, 1967, passed by the 1st Additional Rent Controller, records that :

(3.) Elaborate arguments were addressed on both sides on these questions. Though I am not expressing any final opinion regarding the impact of the Advocates Act, 1961, on the powers of the Court to exclude a counsel, yet I may say that the inherent power to exclude an Advocate from appearing, if the Court comes to the conclusion that the trial would be embarrassed by such appearances, is a part of regulation of the proceedings in Court and not an exercise of disciplinary jurisdiction over an Advocate. It is true that a party to litigation is entitled to select an Advocate in whom he has faith and confidence and the other party cannot destroy that right or fetter that choice by serving a sub-poena on the Advocate as a witness but that would be a matter touching on the merits of each individual case. Be that as it may, in the decision of the Nagpur High Court, on which considerable reliance has been placed by the learned counsel for the respondent and which decision concedes power in favour of the Court to exercise such jurisdiction, it was observed and this power should not be lightly exercised and should be exercised only when the Court is of the opinion that withdrawal of a counsel will be conducive to the proper trial. True that the Advocate appeared as a witness and touched on the merits of the case also in his statement but that, in the circumstances of this case and by itself, was not sufficient for directing the Advocate to withdraw. Even if it be assumed that the Court has such a power and that power vests in the Rent Controller as well, which point I am not deciding,, the exercise of power calls for a great reserve and caution as it is likely to be misused. I can think of some cases in which there is a bulk of evidence and if in such cases the Court feels that by reason of the conflict between Advocate's duty and interest the advocate may net be able to render proper assistance, the Court may (of course if it has such a power) direct withdrawal of the counsel. "This is not a case of that type. The Advocate's statement is a short one and even if it be assumed that the Advocate will not be in a proper position to refer to that statement in support of his client's plea, the other side will, and in any case should, find no embarrassment in criticising that statement. The mere fact that the Court may be called upon to believe or disbelieve that statement, which is a short one, should also cause no embarrassment to the trial. If at all, it may prejudice the petitioner who is himself anxious to retain the services of the Advocate. I am not unmindful of the fact that it would be an unpleasant duty for a Judge to perform. Judges are neither angels nor impersonal calculating machines and when faced with such duty there may be an element of embarrassment. At the same time, that is a function entrusted to the Judges and, I think, the function must be performed fearlessly and without any embarrassment. If a Judge comes to a conclusion that a statement of an Advocate should not be accepted, there should be no impediment in his way and 1. am sure there would be none in the mind of the 1st Additional Rent Controller. Having regard to the circumstances of this case, therefore, I am of the opinion that the 1st Additional Rent Controller should not have directed the Advocate to withdraw. I cannot help expressing a feeling of dissatisfaction that an Advocate should insist on appearing but the fact that he did appear and this petition had to be filed in this Court leaves no doubt in my mind that the Advocate has been insistent on representing the petitioner. In the high traditions of the bar, apart from the rules of law and conduct it is desirable that an Advocate placed in a situation like this, should voluntarily offer to withdraw and, in fact should withdraw, from the case. The Courts have consistently disapproved the practice of a counsel continuing in a case if he is a material witness and I express my respectful agreement with the catena of authorities on this subject. His appearance for the petitioner is also likely to prejudice the case of the petitioner as an Advocate can never be in a position to properly place his own statement before the Court in support of his client's case. If an Advocate is a material witness, prejudice to his client must necessarily result. I do not expect the members of the bar to disregard high traditions to which the bar has adhered in the face of all difficulties and to which it is expected to adhere for all times to come. I, therefore, need not decide the larger question, namely, whether the Rent Controller is a Court and has inherent power which it has exercised.