JUDGMENT
Thomas, J.
1. Is it proper for one party in a suit to summon the counsel of his opposite party as a witness? No doubt, any person can be cited as a witness if he has the testimonial competence envisaged in Section 118 of the Evidence Act, 1872. But should not the Court be greatly circumspect, when the counsel engaged by the opposite side is sought to be summoned as a witness? That question needs consideration now.
2. This appeal arises from one of the two suits sprouted from a shunted matrimonial proposal. The proposal for the marriage registered fast progress initially and reached up to publication of “banns” in the church, but then it went away as one of the parties backed out from it. The bride’s party filed a suit in the Sub Court, Neyyattinkara for damages alleging fraud and deception. The other side (bridegroom’s party) also filed a suit at Kuzhithura (in Tamil Nadu) for damages alleging breach of promise. Further details of the rival claims are unnecessary for this appeal and hence we omit them. However, bare facts just sufficient for this appeal are the following: The suit in Neyyattinkara Court reached almost the final stage as both sides closed their evidence. But appellants then filed a petition seeking permission to cite the advocate of the respondents as a witness, Learned Sub-Judge allowed the petition and ordered summons to be issued to him. Some time later, respondents moved for a review of the said order and learned Sub-Judge allowed the review application as per the impugned order.
3. It was first contended before us that the review petition was time barred. Though the same contention was raised in the lower Court, learned Sub-Judge overruled it on the premise that the counsel for the plaintiffs conceded that the Court could review the order suo motu. In view of the said concession, we do not think it necessary to consider whether the application for review was time barred.
4. As we felt that the main question involved in this case should be answered thoughtfully, we requested Shri G. Unni-krishnan, advocate, to look up the position
and assist us as amicus curiae. Learned counsel readily obliged and addressed detailed arguments. He pointed out that even though there is no statutory bar or legal disability, the practice of citing the counsel of the opposite party as a witness deserves to be discouraged unless the evidence sought to be elicited from the counsel is very material for the same.
5. In Halsbury’s Laws of England it is mentioned that “a barrister should not act as counsel and witness in the same case and he should not accept instructions 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 likely to be a witness on a material question of fact, he should not continue to appear as counsel if he can retire without jeopardising his client’s interests” (vide paragraph 511 at page 388 –Volume 37 of the Fourth Edition).
6. The said code of conduct has been in vogue in India also. In D. Weston v. P. M. Dass, ILR 40 Cal 898 : 23 Ind Cas 25 : (AIR 1914 Cal 396) it has been observed that “as a general practice, however, it is undesirable that when the matter to which counsel depose is other than formal that they should testify either for or against the party whose case they are conducting”. Besumont, C. J. speaking for a Division Bench has observed in Emperor v. Dadu Rama, AIR 1939 Bom 150 that a party in a criminal proceeding is entitled to select the advocate whom he desires to appear for him and the other party cannot fetter that choice merely by serving a summon on the advocate to appear as a witness. V. R, Sen, J. in All India Reporter v. Moghe, AIR 1950 Nag 110 surveyed through a number of decisions and pointed out that if the object is to prejudice his opponet the application should be turned down. A duty was cast on the Court to closely examine the object of the party in citing the counsel as a witness.
7. There are some inhibitions to be observed when a counsel of one of the parties is to become a witness in a case. One such inhibition is that the counsel cannot be permitted to divulge anything which he gathered from- his client in view of the interdict contained in Section 126 of the Evidence Act. He is
debarred from stating the contents of any document with which he has become acquainted in the course of his professional employment. Nor could he disclose any advice which he gave to his client. Outside the parameters of such inhibitions what is the use of his testimony? There is a practical consequence when the counsel is made a witness. Then he would normally be obliged to relinquish his engagement in the case. This was earlier a norm of professional ethics and now this has been transformed into a rule of conduct under Rule 13 of Chapter II of Part VI of the Bar Council of India Rules. It reads thus:
“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 interest”.
Here, of course, the test is whether the advocate concerned would be “a witness on a material question of fact”. A learned single Judge of this Court has considered the implications of the said rule in a particular context (vide Marikag (Motors) Ltd. v. Ravikumar, (1988) 2 Ker LT 986 : (AIR 1989 Kerala 244). We are in agreement with the following observations of the learned single Judge (at p. 246 of AIR):
“If the court or the authority concerned, after enquiry finds that an examination of the advocate as a witness is indispensable and hence the disengagement of the advocate from the case would not jeopardise the interest of the party for which he appears, then the court or the authority concerned,can ask the advocate to relinquish the vakalath.”
8. Under Order XVI, Rule 1(2) of the Code of Civil Procedure a party desirous of obtaining any summon for the attendance of any person shall file in court an application stating therein “the purpose for which the witness is proposed to be summoned.” The
object of disclosing such purpose is to enable
the court to decide whether examination of
such witness is of material benefit to decide
the dispute. Court has to pass an order on the
application and, therefore, a duty is cast on
the court to consider whether the purpose of
citing the counsel of the opposite party as a
witness is to speak to any material fact. If the
court is not so satisfied, the court is not
obliged to issue summons to him. ‘
9. The above discussion takes us to the view that there is the need to make a judicial consideration before issuing summons to the counsel of the opposite party bearing in mind the possible utility of his evidence and also the consequences which entails not only to the counsel concerned but to the party who engaged him. According to us, the court shall be greatly circumspect while deciding to grant permission to summon the counsel of the opposite party as a witness.
10. In this case, the advocate of the opposite party was sought to be summoned as a witness to prove (1) that one of plaintiffs sent a letter to him after the commencement of the legal proceedings between the same parties and (2) to prove that the said advocate suggested some compromise proposal to the plaintiffs. We think that it is not necessary to examine the said advocate as a witness if the purpose is what is shown above. What could be elicited from such a witness by using the pigeonholes contained in Section 126 of the Evidence Act would be of little use in the case. What may thus ultimately result in is the consequence that much hardship would be inflicted to the opposite side by depriving him of the professional services of the counsel engaged by him.
11. For the aforesaid reasons, the court was well justified in refusing to issue summons to the advocate. Accordingly, we dismiss this appeal in limine. We express our thanks to Shri G. Unnikrishnan, Advocate, who argued as amicus curiae on our request.