MOHD AFZAL MIR Vs. HAJI MAHDA BHAT

JUDGEMENT

(1.) IN a suit for rendition of accounts pending inter parties in the court of Sub Judge Sopore the defendant cited the plaintiffs erstwhile counsel. Mr. Bhat as his witness. Plaintiff objected to it on the ground that section 126 of the Evidence Act debars a counsel or erstwhile counsel from disclosing any communication made to his client in professional confidence. The lower court rejected the objection on the ground that the counsel could claim the privilege when he appears in the witness box and directed issue of process for the attendance of the witness. Aggrieved by this order the plaintiff has come up in revision to this court.

(2.) AS rightly argued by the learned counsel for the plaintiff, section 126 debars a counsel or erstwhile counsel from disclosing any communication made to him in professional confidence or from stating the contents or condition of any document with which he has become acquainted in the course of his professional employment unless, of course, his client has expressly contented to it. The only exceptions to this rule are those mentioned in proviso to section 126 which are intended to exclude from such protection any communication made in furtherance of any illegal purpose or any fact observed by the counsel indicating that any crime or fraud has been committed during the course of his employment. The section is intended for the protection of the client and not of the 1awyer. The privilege is the privilege of the client and not of the legal advisor. Unless the client waives the privilege, the counsel cannot be compelled to give evidence against him so long as the case does not fall within the exception clause. Accordingly the view expressed by the lower court that the privilege offered by section 126 was the privilege of the lawyer and that he alone could claim it when he appears in the witness box is manifestly erroneous. The court could order the examination of the counsel as a witness against the plaintiff only if it found that the matter with regard to which he was sought to be examined fell within the exceptional clause. The court has never cared to go into the question as to what was the matter in regard to which the counsel was sought to be examined. The court ought to have gone into this question and directed the counsel to appear in the witness box only if he found that he has sought to be examined on a matter which fell outside the purview of the matters protected under this section. In the circumstances the order in its present form is not sustainable in law and must be set a side. The lower court must be asked to make a fresh order keeping in view the observations made above. Allowing this revision I make an order accordingly. There shall be no order as to costs in this court. The parties are directed to appear in the trial court on 10 -6 -1983.