D. Swaminathan vs Krishnaswamy Pillai and Another

Srinivasan, J.—This revision is directed against an order of the Principal District Munsif, Tiruchirapalli, in a peculiar application filed by the

petitioner herein. The prayer in that application is that the court should not permit the 2nd respondent to file any counter in I.A. No. 214 of 1991

on behalf of the 1st respondent.

The necessary facts are these: The petitioner is the plaintiff in O.S. No. 2350 of 1990. He has prayed for injunction restraining the only

defendant from interfering with his possession and enjoyment of the suit property. The defendant filed a written statement. The 2nd respondent

herein was appearing as counsel for the defendant. He filed the written statement and vakalat for the 1st respondent. In the petition, I.A. No. 2227

of 1990, filed by the petitioner for an injunction, it appears there was an order of interim injunction. The petitioner filed I.A. No. 214 of 1991 for

punishing the defendant for contempt for violating the injunction order passed by the trial court. In that application the advocate of the defendant,

who is the 2nd respondent herein, is also shown as a party by the petitioner. In the affidavit filed in support of the application an allegation is made

that the 2nd respondent is the counsel for the 1st respondent has advised and instigated the 1st respondent to do the unlawful act and he is also

guilty of contempt of court and therefore he is impleaded as a party of court and therefore he is impleaded as a party to the application. In the

application, the 2nd respondent engaged a lawyer for representing himself and insofar as the 1st respondent is concerned, the 2nd respondent

continued to represent him and also filed a counter affidavit. The application filed by the petitioner in I.A. No. 320 of 1991 is not to permit the 2nd

respondent to file any counter on behalf of the 1st respondent. The contention of the petitioner is that the 2nd respondent being been made a party

to the application for contempt should not represent the other party to the application, who is the 1st respondent. The court below refused to

accept that contention and dismissed the application. It is the said order which is questioned in this revision petition.

Learned Counsel for petitioner contends that the 2nd respondent being a party himself in the application for contempt should not appear for the

other party. He relies on Rule 13 in Chapter II of the Rules made by the Bar counsil of Tamil Nadu u/s 49(1)(c) of the Advocates Act read with

the Proviso thereto. That Rule reads as follows:

An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a

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 can retire

without jeopardising his client''s interests.

Learned counsel also placed reliance on the judgment of a Full Bench of this Court In the matter of In Re: A Pleader, . It was held by the Full

Bench that where a pleader even after knowing that he would have to give evidence on behalf of his client continues to act as his pleader in a case

and gives evidence without first concealing the vakalat and even thereafter continues to act in an active capacity as his counsel, his conduct is

improper and in no circumstances can it be considered that it was anything other than deserving of condemnation.

Learned Counsel for petitioner contends that in this case the 2nd respondent may be obliged to give evidence in the application for contempt

and he should not be permitted to continue to appear for the 1st respondent There is no substance in this contention. The ruling of the Full Bench

will not apply at this stage. If and when the question of giving evidence arises and if the 2nd respondent gives evidence on behalf of the 1st

respondent, it may be considered at that stage, whether he is guilty of professional misconduct. It is not open to the petitioner to seek a direction

from the court in which a case is pending to prevent the counsel from appearing for a party just on the ground that he is also himself a party. In the

present case the stage is that the 1st respondent, who is already a defendant in the suit, is represented by the 2nd respondent as his counsel, who

has been appearing in the proceedings from the inception. The 2nd respondent has been impleaded as a party only in the application for contempt,

Merely because he is impleaded as party thereto, it cannot be contended by the petitioner that the 2nd respondent should be prevented from

appearing for the 1st respondent. The 2nd respondent is impleaded in his personal capacity in the contempt application. The 2nd respondent is

appearing for the 1st respondent in his professional capacity. The 2nd respondent has already engaged an advocate for representing him. In those

circumstances I do not find any justification for granting the prayer of the petitioner. Rule 13, referred to above, will have no bearing at this stage.

The question of the 2nd respondent giving evidence as a witness for the 1st respondent in the proceedings has not arisen at all. Under the

circumstances, the revision petition is without any merit and is dismissed.