V P NAGARAJAN Vs. PRABHAVATHI

JUDGEMENT

(1.) THIS appeal is against an order dismissing the application in I. A. No. 858 of 1986 which was one to restore I. A. Mo. 637 of 1985 which was dismissed for default on 26. 2. 1986. I. A. No. 637 of 1986 was in turn to restore I. A. No 486 of 1985 which was dismissed for default on 29-4-1985. I. A. 486 of 1985 itself was one for setting aside the ex parte decree Passed on 22-1-1985 in a suit for specific performance bearing O. S. No. 14 of 1984, sub-Court, Poonamallee.

(2.) IN support of the application I. A. No. 858 of 1986, an affidavit was filed by the learned counsel for the petitioners. It is very distressing to note that counsel not only filed the affidavit in support of the application but also signed the application as advocate for petitioners. IN recent times, an unhealthy practice has grown up among the members of the Bar to come out with affidavits in support of their clients even without the clients themselves filing affidavits setting out the facts. Unfortunately the implication and consequences there of have not been realised by them. Under Order 31, R. 2, C. P. C. affidavit will be evidence in an application and the court could order cross-examination of the deponent. Thus the advocate who files an affidavit in support of an application is liable to be cross-examined and by filing the affidavit, he takes the role of witness. The Bar Council of INdia has framed rules under Section 49 (c) of the Advocates act, 1961. R. 13 in Chapter V in Part III of the rules reads thus------ 'an Advocate should not accept a brief or appear in a case in which he has reason to belief that he will be a witness, and if being engaged in case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he retires without jeopardising his client's interests.' The indiscriminate way in which affidavits are filed by counsel on record nowadays makes me doubt whether any of them is aware of the above rule.

(3.) IN the counter affidavit filed by the respondent-plaintiff in the court below in paragraph 6 it was stated very clearly that the allegations made in the affidavit of the advocate for the petitioner were not true. The allegation that the advocate was indisposed was expressly denied by the respondent. IN view of such denial, it was the duty of the petitioner's counsel to have placed materials before the court to prove that he was actually indisposed on 26-2-1986 and could not attend the court. He should have also placed before the court materials to show that he had entrusted the matter to some other advocate. It is mentioned by learned counsel for the petitioner that the court below has not decided the question whether the reason for non-appearance of the appellant on that particular day was genuine or not. When there was no material whatever to support the averments in the affidavit, the court below was right in taking into account the prior conduct of the appellant.