Mohd.Afzal Mir vs Haji Mahda Bhat and Anr.

In a suit for rendition of accounts pending inter parties in the court of Sub Judge Sopore the defendant cited the plaintiff's erstwhile counsel. Mr.

Bhat as his witness. 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 papas 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.

As rightly argued by the learned counsel for the plaintiff, section 126 debts a counsel on erstwhile counsel from disclosing any communication

made to him in professional confidence or from sitting the contents or condition of any document with which he his become acquainted in the

course of his professional employment unless, of course, his client has expressly consented to it. The only exceptions to this rule are those

mentioned in proviso to section 126 which and 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 O'"" his employment. The

section is inten I for the protection of the Clint and not of the Lawyer. The privilege is the privilege of the client and not of the legal adviser. Unless

the client wives the privilege, the counsel cannot be compelled to give evidence against him so long as the case doss not fall within the exception

clause. Accordingly the view expressed by the lower court that the privilege of forded 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 t'i3 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 FOMTI that he has sought to be examined on matter

which fell outside the purview of the matters protected under. With acnes 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 1061983,