ABDHU Vs. VEERAVU

JUDGEMENT

(1.) Two questions of some importance arise in this revision. They are:

(2.) Revision petitioner plaintiff and respondent defendant were partners of a firm by name "Trichur Cotton Stores". The partnership was dissolved as per a deed dt. 14-10-1983. The deed contains a clause that all the out standings will be collected by the defendant and the dues will also be paid by him. Tax due to Government was collected from plaintiff and he wanted the share of defendant to be reimbursed by him by filing O.S. 879/1987 before Sub Court, Thrissur. The suit was resisted by the defendant. Revision petitioner submitted a witness list containing the name of counsel for the defendant Sri. P.A. Surendranath and another counsel by name Sri Samuel. A petition was also moved as LA. 1955/1989 for permission to summon them as witnesses. The court below as per order dt. 5-1-1990 allowed that application. But that order was reviewed later on the application filed by the defendant as I.A. 142/1990. As per the order passed therein LA 1955/1989 was dismissed. That order is under challenge in this revision.

(3.) One of the witnesses sought to be examined by the plaintiff and included in the witness list is the counsel appearing for the defendant. The first aspect to be considered is whether he can be summoned as a witness by the plaintiff. The lawyer appearing for the opposite party cannot ordinarily be summoned as a witness since he shall not be permitted at any time to disclose professional communications. S.126 of the Evidence Act prohibits the lawyer to disclose any communication made to him in the course of and for the purpose of his employment as such lawyer by or on behalf of his client. He cannot also be asked 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. He should not disclose any advice given by him to his client in the course and for the purpose of such employment. But this privilege extends only to all communications between the client and his lawyer in the course of and for the purpose of his professional employment. The counsel may be in possession of other facts which had come to his knowledge otherwise than in the course of and for the purpose of his professional employment. Disclosure of such materials is not prohibited by S.126 of the Evidence Act. To prove such a fact, the intending party has to summon the lawyer as a witness to speak about that fact. If the court deals that the lawyer alone is competent to speak about a material fact relevant for the purpose of decision, there is no bar in the court summoning the lawyer as a witness for the opposite party. But before permitting a party to summon the counsel appearing on the opposite side, the court has to make an enquiry and should form an opinion that the evidence to be tendered by the lawyer is on a material question of fact on which he alone can tender evidence. There is sufficient indication to this effect in R.13 of Chapter II of Part VI of the Bar Council of India Rules, 1975 which reads thus: