GANGAVARAPA KAMESWARA RAO Vs. GANGAVARAPH SATYANARAYANA

JUDGEMENT

(1.) The petitioner's the plaintiff. This revision petition arises out of an application filed to review the order dated 8th December, 1981. The facts leading to this revision petition may be briefly stated; During the trial in O. S. No. 574 of 1976, the petitioner filed a petition being I. A. No. 1673 of 1981for summoning Sri B. V..Raghavayya, Advocate as witness. I.A. No. 167 of 1981 was filed under Order 16, rule 1 and section 151, Civil Procedure Code. On the application, the court permitted the issue of summons,. Subsequently the witness for whom the summons were sent took an objection that he cannot be smmoned as a witness as he is an Advocate appearing for defendants 3 to 8 in the suit. The Court on hearing both sides passed an order on 8th December, 1981 that the witness cannot be examined as he has a privilege as an Advocate from disclosing the particulars under section 126 of the Evidence Act. To revice this order dated 8th December, 1981, the applications filed and the Court below dismissed the review petition.

(2.) The learned counsel for the petitioner contended that section 126 of the Evidence Act cannot be pressed into service in the circumstances and further having allowed the issue of summons initially the Court is not justified in revoking the same. The learned Counsel for the respondent sought to sustain the orders as section 126 of the Evidence Act comes to aid of the witness who is an Advocate and there is error apparent on the face to attract review. Section 126 of the Evidence Act which controls the decision is as follows:- "No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express content, 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 professional 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 illegal purpose : 2. Any fact observed by any barrister, pleader, attorney vakil, or 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 immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client. Explanation : The obligation stated in this section continues after the employment has ceased". The learned Counsel for the petitioner relied upon the decision in P.Rajamma v. P. Chintaiah. In this decision, the danghter-in-law after the death of her husband, sent a notice to her father-in-law for possession of house and this notice was issued through her Advocate and the father- in-law sent a reply notice through advocate Sri N. Venkataratnam, Guntur in which certain statements alleged to have been defamatory were made. The daughter-in- law filed a compliant under section 500, Indian Penal Code, and in the said case she applied for summons to be issued to Sri N. Venkatratnam. Advocate who gave reply notice containing defamatory statements. The Magistrate rejected the petitioner. After considering the impact of section 126 of the Evidence Act, Madhava Reddy, J. held that Sri N. Venkataratnam, Advocate is summoned to prove the notice issued by him and it is only for the purpose of proving that notice that he is being summoned and not to disclose any private or confidential communication between him and the respondent. Further it is held that the communication between the Advocate and the respondent having been put in the form of a notice cases to be confidential communication. In Antony v. G. S. Naidu, one S, Antony in the course of his giving evidence in a defamation case against him and others was cross-examined by Sri V. N. Narasingarao, Advocate for accused in that case and two defamatory questions were put to him namely that he ran from the operation filed in 1943 and came to India on foot and that as President of the Ex- Serviceman Club, Vellore, he misappropirated the Radio, blanket and cot belonging to the club. The accused in that case claimed privilege under section 126 of the Evidence Act that the communication to his Advocate with regard to the cross- examination cannot be the subject matter of a defamatory proceedings as it is a privileged communication under section 126 of the Evidence Act. This was repelled by Mr. Justice Sadasivam of Madras High Court holding that the right given to a client under section 126 of the Evidence Act is restricted to its operation of defending him or presenting to its operation of defending him or presenting his case and the protection extends no further and the defamatory imputation in the instructions to the advocate would not be a privileged communication. In K. C. Sonerexa v. State of Andhra Pradesh, an employee of State Government was dismissed for misconduct on the basis of a report of tribunal specially appointed to enquire into his conduct. The petitioner gent a notice under section 80, Civil Procedure Code, alleged to be containing defamatory aspersions against the members of the tribunal through his counsel. A complaint under section 500, Indian Penal Code, was launched against the petitioner and his counsel. The Allahabad High Court held that there is no bar against the counsel making a disclosure unless the defamatory imputuations in the notice can be justified for the purpose of petitioners civil claim.

(3.) The learned Counsel for the respondent relied upon the decision in Moti Bai v State, In this case, Moti Bai was arrested by the police on 15th June, 1954, as she was suspected of being involved was in police custody, the counsel for the accused sought for an interview. This interview was not granted by the police or the Magistrate. In the context of considering the rights and privileges of an advocate, section 126 of the Evidence Act is also touched upon and Modi, J. held that the accused has a right to be consulted by the legal adviser of his choice and to be defended by him and therefore interviews must be allowed to his counsel when asked for. It is further held that all communications between the professional adviser and his clients are confidential and it is not only with the express consent of the client the information can be divolved and this provision can not be extended in furtherance of any illegal purpose or fraud. Jessel, M. R. Anderson v. Bank, "It is absolutely necessary that a men in order to prosecute his rights or to defend himself from aa improper clain should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgur phrase, that he should be able to make a clean breast of it to the gentleman and whom he consults with a view to the prosecution of his claim, or the substantiating his defence against the claim of others". Section 126 is designed to abort the attempt to intrude into privacy of the close preserve of the fund of information conveyed by the client closetled in confidence. The client or patient in the process of consultation makes bare all facts and aspects stripped of cons- matics to enable Advocate or Doctor to have correct insight and diagonosis of the case. All information surrounding the case will be conveyed by the client to the Advocate and sifting of relevant material constitatei the nucleus for preparation and make up of the case. Section 126 facilitates the client to pass on full information and material without to fear or apprechension of Advocate being obligated to divulge the information. In the absence of this privilege the frank disclosure by the client or upon discussion will be imperilled. Absolute privilege is conferred save in situations of communications for illegal purpose or in furtherence of fraud or crime. The decisions referred to above touch upon the applicablity of section 126 to diverse situations and does not apply to the facts of this case.