Vardhaman Dhurgaprasad Shetty and Others vs Sangamesh

Budihal R.B., J.—1. This petition is filed by the petitioners-plaintiffs requesting the Court to set-aside the order dated 13.08.2015 passed by the III Addl. Senior Civil Judge, D.K. Mangalore on I.A. No. 39 in O.S. No. 103/2012, which is produced at Annexure-A.

Heard the arguments of the learned senior counsel, so also the learned counsel on record for the petitioners, and also the arguments of the learned counsel appearing for respondent-defendant No. 7.

Learned senior counsel appearing for the petitioners during the course of his arguments has submitted that the application filed by the respondent herein before the Trial Court, making a request to the Court to direct the counsel for plaintiffs i.e., Sri O.T. Bhat, to withdraw his vakalath on behalf of the plaintiffs, and if he does not intend to do so, then, determine his vakalatnama on behalf of the plaintiffs. Learned senior counsel has submitted that the said application is not supported by the affidavit and only memorandum of facts was filed supporting the said application. He has also submitted that the only allegation of the other side is that, the counsel for the plaintiffs was present in the function after the demise of Swamiyar and in the presence of the persons gathered there, he read over the contents of the will and he has signed the document, which is marked as Ex. P-18. He has further submitted that the said document Ex. P-18 is not the material document in the case. The suit is for declaration and permanent injunction, to succeed in the suit, plaintiffs will have to establish the Will and for the Will is concerned, learned counsel appearing on behalf of the plaintiffs is not at all the witness nor his evidence is required for the same. He has also submitted that only on the basis of the document Ex. P-18 signed by the said counsel, his vakalath cannot be terminated.

Learned senior counsel for the plaintiffs has relied upon the decision of Hon''ble Apex Court reported in , (2011) 12 SCC 600 in the case of Kokkanda B. Poondacha and others v. K.D. Ganapathi and another and draw the attention of this Court to paragraph No. 4 and submitted that in this case also the other side filed such application without filing any list of witnesses, which they are intending to call as witness in the case. Hence, in the absence of such material, the Trial Court ought not to have allowed the said application and ought not to have issued such direction for determination of vakalath of the said counsel. He has submitted that the Trial Court has wrongly proceed to pass such an order and allowed the said application wrongly. Hence, he has submitted to allow the petition and to set-aside the impugned order passed by the Trial Court.

Per contra, learned counsel for the respondent-defendant No. 7, who filed the application before the Trial Court, during the course of his arguments has submitted that firstly the decision relied upon by the other side is not made applicable to this case, because of the factual aspect in the said reported decision and the factual aspect in the case on hand are not one and the same. In that reported decision, when the counsel appeared on behalf of one party, the other party filed an application showing him as one of the witness and on that ground they insisted the Court that said counsel has to withdraw the vakalath, but in the case on hand, the factual situation is that the counsel, who appeared on behalf of the plaintiffs, signed the document, which is marked as Ex. P-18, and during the course of evidence of P.W. 1, the document Ex. P-18 got marked and the signature of the counsel is also got marked. Therefore, this cannot be called as accidental or incidental. He has further submitted that Trial Court taken these aspects into consideration and passed the order with sound reasons, hence, the said order does not call for any interference by this Court.

I have perused the grounds urged in the petition and also the impugned order passed by the Trial Court on the application I.A. No. 39.

Perusing the order passed by the Trial Court, paragraph No. 9 is relevant for the purpose of consideration. The Trial Court has observed that it is an admitted fact in the case that Ex. P-18 is got marked on behalf of the plaintiffs and Ex. P-18(a) is the relevant portion of the document disclosing the presence of counsel for the plaintiffs also got marked. It is also observed that the crucial question for consideration in the case is with regard to the execution of the Will by late Sri. Lingaikya Ma. Ni. Pra. Shivaprakash Swamiyar the senior Pontiff of Mutt. So also the custom and tradition adopted for appointment of new Pontiff on the event of death of senior Pontiff is required to be proved. Therefore, the Trial Court on the basis of all these materials observed in its order that when the counsel has signed such a document and when it is the allegation that he read over the contents in the presence of others, he cannot be the counsel for the plaintiffs, who are seeking the reliefs before the Court. Looking to the order passed by the Trial Court, the document Ex. P-18 was taken into consideration.

So far as the decisions relied upon by the learned senior counsel for the petitioners in support of his arguments, in the decision of Hon''ble Supreme Court reported in , (2011) 12 SCC 600 in the case of Kokkanda B. Poondacha and others v. K.D. Ganapathi and another, it is observed in the said order at Paragraph Nos. 16 and 18 as under:

"16. If the prayer made by the respondents for being allowed to cite Shri N. Ravindranath Kamath as a witness is critically scrutinized in the backdrop of the abovenoted statement on the duties of an advocate towards his client, we have not hesitation to hold that the same was not only misconceived but was mischievous ex facie. Neither in the written statement nor the additional written statement filed by them before the trial court, the respondents had attributed any role to Shri N. Ravindranath Kamath in relation to the subject-matter of the suit. The advocate concerned was engaged by the appellant-plaintiffs in 1996 i.e., almost 11 years prior to the filing of application by the respondents under Order 16 Rules 1(1) and (2) read with Section 151 CPC. During this long interregnum, the respondents never objected to the appearance of Shri N. Ravindranath Kamath as an advocate of the appellants by pointing out that he was interested in the subject-matter of the suit. Notwithstanding this, the respondents cited him as a witness in the list filed along with the application. The sole purpose of doing this was to create a situation in which the advocate would be forced to withdraw from the case.

We may add that if the parties to the litigation are allowed to file the list of witnesses without indicating the purpose of summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together. Such litigants may include the name of the advocate representing the other side as a witness and if the court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate. Therefore, it would be a prudent exercise of discretion by the court to insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness."

In another decision reported in , AIR 1971 MYSORE 184 in the case of S.R. Chanaveerappa v. B. Prakash, paragraph No. 2 reads as under:

"2. The above question has arisen in this way:

The plaintiff in O.S. No. 42/1969 on the file of the Civil Judge, Chitradurga, preferred an application, purporting to be under Section 151. Civil P.C. to the effect that the Advocate namely Mr. O. Veera Basappa who is appearing on behalf of the defendant in the suit, should be called upon to withdraw from the suit. The ground alleged is that the Advocate had participated in a ''Panchayathi'' held in connection with the differences that had arisen regarding a portion of properties between the plaintiff on the one hand and the father of the defendant on the other. There were other panchayatdars too. As to what transpired at such ''Panchayati'' and whether any decisions of a binding character were arrived at, the allegations are singularly vague."

In another decision reported in , AIR 1959 KERALA 119, making reference to paragraph No. 2 of the said decision, it is contended by the learned senior counsel for the petitioners that in this case as the list of witnesses were not at all filed at that stage, the question of ordering for determination of the vakalath will not arise at all. The another contention raised by the learned senior counsel is that, even the pleadings i.e., written statement is also not filed by the respondent-defendant No. 7 and even the list of witnesses is also not furnished, it is also not made known to the Trial Court that whether definitely respondent-defendant No. 7 is going to examine the said counsel as witness on the side of the defendants in the suit.

For this, learned counsel for respondent No. 7 has submitted that the Trial Court has already observed in its order that the parties may examine the present counsel as a witness in the case and which aspect cannot be completely ruled out.

Considering these rival contentions raised by both sides, and the legal proposition as laid down by the Hon''ble Apex Court, and the other Hon''ble High Courts, which are referred above and also the factual aspect of the matter, it is no doubt true that the document Ex. P-18 bears the signature of the counsel, who appeared on behalf of the petitioners-plaintiffs. But, as submitted, the application I.A. No. 39 filed under Section 151 of CPC is not supported by the affidavit of the party verifying the contents, it is only the memorandum of facts, which is filed and even the list of witnesses is also not filed by the applicant-defendant No. 7 showing the intention before the Trial Court that they are going examine the said counsel on their side and no such intimation is served on the plaintiffs counsel that he will be a witness in the said case.

Therefore, looking to these materials placed on record and also the submissions made by the learned counsel on both sides, I am of the opinion that at the stage when the application was filed before the Trial Court though there is such an averment in the application, but the pleadings were not completed, issues were not yet framed and the trial of the case was also not yet commenced, and as it is rightly observed by Their Lordships of the Hon''ble Supreme Court that, if a party, who contends that the counsel will have to be a witness in the case, subsequently, if he did not examine the said counsel as witness in the said case, then unnecessarily the legal assistance will be deprived to the party, who engaged the said counsel in the said proceedings. Under such circumstances only on the basis of mere allegations, the parties, who engaged such counsel will have to suffer in the matter.

Considering all these aspects of the matter and also the legal position in the decisions relied upon by the learned senior counsel for the petitioners, I am of the opinion that the application I.A. No. 39 filed before the Trial Court is a pre-mature one and the Trial Court ought to have considered the same at the subsequent stage i.e., when the suit will be set for recording of evidence and the parties have filed their list of witnesses making it clear to the Court that who are the witnesses, whom they are going to examine in the said suit.

Under these circumstances, the order passed by the Trial Court allowing the application at the interim stage even before filing of the written statement by petitioners-plaintiffs, so also in the absence of the verifying affidavit to the said application about the contentions raised, matter requires interference by this Court. Hence, petition is allowed and the impugned order dated 13.08.2015 passed by the III Addl. Senior Civil Judge, D.K. Mangalore on I.A. No. 39 in O.S. No. 103/2012, is hereby set-aside.