Rajan vs Lakshmi

M.R. Hariharan Nair, J.—Revision petitioners are petitioners in I.A. No. 2313/99 of the Sub-Court. Kozhikode. The question is whether counsel for the opposite party can be allowed to be examined as a witness for the revision petitioners. The request was to issue summons to 7 witnesses of whom, witnesses 6 and 7 were Advocate''s Clerk and Advocate respectively, who appeared in a prior proceeding O.S. No. 45/81.

The suit was for setting aside the decree and execution proceedings in OS. No. 45/81 as null and void as they are obtained by collusion, mis-representation and suppression of facts. It was alleged that when O.S. 45/81 was in progress the present plaintiffs'' Advocate was bed-ridden due to a serious illness and that witness No. 6 was the Clerk, to whom the unregistered will of the father and the gift deed of the mother were entrusted along with other documents. They were produced in the Munsiff''s Court, but returned for re-presentation to the Sub-Court. During this interregnum the document was taken back by witness No. 6 and he did not produce the documents during the trial of O.S. No. 45/81 and it was the crucial lapse which resulted in the particular decision.

In para 2 of the affidavit supporting the petition the 1st plaintiff averred that the 6th witness was working under the 7th witness, who is the Advocate and that evidence is required with regard to the circumstances in which the clerk got attached to the particular counsel and also with regard to the previous work of the clerk.

The petition was opposed by the 5th defendant on the ground that her counsel happened to file a suit against the plaintiffs'' counsel''s father and mother with one AT. Abdul Khader as plaintiff and that the present, petition is to wreak vengeance by the counsel for the plaintiffs against the Advocate, who was appearing in the said suit against his father and mother.

The court below considered the question and found that the petition can be allowed only in part and witness No. 7 cannot be summoned.

According to the Learned Counsel for the revision petitioners, the evidence of 7th witness is quite essential. During argument the Learned Counsel for the respondents placed reliance on the decision in Yovas vs. lmmanuel. 1995 (1) KLT 626 in support of his contention that examination of a counsel should not be normally allowed.

Based on the relevant rules of the Bar Council of India it was held in the said Bench decision that the test in the matter should be whether the Advocate concerned would be "a witness on a material question of fact". If the court after enquiry'', finds that an examination of an Advocate as a witness is indispensable, it can be allowed. A duty is case on the court to consider whether the purpose of citing the counsel of the opposite party as witness is to speak to any material fact. There is the need to make a judicial consideration before issuing stations o the counsel of the opposite party bearing in mind the possible utility of his evidence and also the consequences which entail not only to the counsel concerned but to the party who engaged him as well. It was also mentioned that the court should be greatly circumspect while deciding to grant permission to summon the counsel of the opposite party as a witness.

The apprehension of the respondents that the petitioners would wreak vengeance does not appear to be correct. The court''s powers in the matter of restricting the question to the witness arc wide and the court can ensure that the questions are allowed only with regard to the aspects specified in para 2 of the affidavit.

Taking into account all the circumstances aforementioned, I am of the view that the question of examining the 7th witness can be postponed until the examination of 6th witness is complete. After a consideration of his evidence, the court may decide the matter, bearing in mind the principles in the decision cited, as to whether the 7th witness should be examined or not. In the circumstances, the impugned order is set aside in part audit is directed that the question of examining the 7th witness should be considered afresh as directed above after hearing both sides.