Legal Blog: June 2011

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Tuesday, June 28, 2011

Importance of Pleadings : The Law

Justice P. Sathasivam
Supreme Court of India
The Supreme Court in Kalyan Singh Chouhan v. C.P. Joshi has highlighted the importance of pleadings in civil proceedings. Although the case in hand deals with an election petition, the Hon'ble court has culled out the general principles highlighting the importance of pleadings. The relevant extracts of the judgment are reproduced below;

15. In Gajanan Krishnaji Bapat & Anr. v. Dattaji Raghobaji Meghe & Ors., AIR 1995 SC 2284; this Court held that the court cannot consider any fact which is beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality the result of the election has been materially affected.

16. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that as a rule relief not founded on the pleadings should not be granted.; Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide : Sri Mahant Govind Rao v. Sita Ram Kesho, (1898) 25 Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235; Raruha Singh v. Achal Singh & Ors.; AIR 1961 SC 1097; Om Prakash Gupta v. Ranbir B. Goyal, AIR 2002 SC 665; Ishwar Dutt v. Land Acquisition Collector & Anr., AIR 2005 SC 3165; and State of Maharashtra v. Hindustan Construction Company Ltd., (2010) 4 SCC 518.)

17. This Court in Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College & Ors., AIR 1987 SC 1242 held as under:

It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet........ In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question.

18. This Court in Bachhaj Nahar v. Nilima Mandal & Ors., AIR 2009 SC 1103, held as under:

The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration.

The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue........ Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.

The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.

19. In J.K. Iron & Steel Co. Ltd, Kanpur v. The Iron and Steel Mazdoor Union, Kanpur, AIR 1956 SC 231, this Court observed:

It is not open to the Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper.

20. Order XIV Rule 1 CPC reads:

Issues arise when a material proposition of fact or law is affirmed by the party and denied by the other.

Therefore, it is neither desirable nor required for the court to frame an issue not arising on the pleadings. The Court should not decide a suit on a matter/point on which no issue has been framed.

(Vide: Raja Bommadevara Venkata Narasimha Naidu & Anr. v. Raja Bommadevara Bhashya Karlu Naidu & Ors., (1902) 29 Ind. App. 76 (PC); Sita Ram v. Radha Bai & Ors., AIR 1968 SC 535; Gappulal v. Thakurji Shriji Dwarkadheeshji & Anr., AIR 1969 SC 1291; and Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693).

21. The object of framing issues is to ascertain/shorten the area of dispute and pinpoint the points required to be determined by the court. The issues are framed so that no party at the trial is taken by surprise. It is the issues fixed and not the pleadings that guide the parties in the matter of adducing evidence. [Vide : Sayad Muhammad. v. Fatteh Muhammad (1894-95) 22 Ind. App. 4 (PC).]

22. In Kashi Nath (Dead) through L.Rs. v. Jaganath, (2003) 8 SCC 740, this Court held that where the evidence is not in line with the pleadings and is at variance with it, the said evidence cannot be looked into or relied upon. While deciding the said case, this Court placed a very heavy reliance on the judgment of the Privy Council in Siddik Mohd. Shah v. Saran, AIR 1930 PC 57.

23. There may be an exceptional case wherein the parties proceed to trial fully knowing the rival case and lead all the evidence not only in support of their contentions but in refutation thereof by the other side. In such an eventuality, absence of an issue would not be fatal and it would not be permissible for a party to submit that there has been a mis-trial and the proceedings stood vitiated. (vide: Nagubai Ammal & Ors. v. B. Shama Rao & Ors., AIR 1956 SC 593; Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 1 884; Kunju Kesavan v. M.M. Philip & Ors., AIR 1964 SC 164; Kali Prasad Agarwalla (dead) by L.Rs. & Ors. v. M/s. Bharat Coking Coal Ltd. & Ors., AIR 1989 SC 1530; Sayed Akhtar v. Abdul Ahad, (2003) (7) SCC 52; and Bhuwan Singh v. Oriental Insurance Co. Ltd., AIR 2009 SC 2177).

24. Therefore, in view of the above, it is evident that the party to the election petition must plead the material fact and substantiate its averment by adducing sufficient evidence. The court cannot travel beyond the pleadings and the issue cannot be framed unless there are pleadings to raise the controversy on a particular fact or law. It is, therefore, not permissible for the court to allow the party to lead evidence which is not in the line of the pleadings. Even if the evidence is led that is just to be ignored as the same cannot be taken into consideration.

Saturday, June 25, 2011

Contemptuous Acts Against Judicial Officers : The Law

Justice Dr. BS Chauhan
Supreme Court of India
Justice Dr. B.S. Chauhan and Justice Swatanter Kumar of the Supreme Court of India, in Vishram Singh Raghubanshi v. State of UP, have discussed the law relating to the contempt of court vis-a-vis misbehavior / violent behavior against judicial officers. The judgment also discusses the circumstances in which an apology can be accepted by the court for such offences / misdemeanors. The relevant extracts of the judgment are as under;

11. It is settled principles of law that it is the seriousness of the irresponsible acts of the contemnor and degree of harm caused to the administration of justice, which would decisively determine whether the matter should be tried as a criminal contempt or not. (Vide: The Aligarh Municipal Board & Ors. v. Ekka Tonga Mazdoor Union & Ors., AIR 1970 SC 1767).

12. The court has to examine whether the wrong is done to the judge personally or it is done to the public. The act will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court's administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties. (See: Brahma Prakash Sharma & Ors. v. The State of U.P., AIR 1954 SC 10; and Perspective Publications (P.) Ltd. & Anr. v. The State of Maharashtra, AIR 1971 SC 221).

13. In the case of Delhi Judicial Service Association v. State of Gujarat & Ors., AIR 1991 SC 2176, this Court held that the power to punish for contempt is vested in the judges not for their personal protection only, but for the protection of public justice, whose interest requires that decency and decorum is preserved in courts of justice. Those who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties; any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court would amount to criminal contempt and the courts must take serious cognizance of such conduct.

14. In E.M.Sankaran Namboodiripad v. T.Narayanan Nambiar, AIR 1970 SC 2015, this Court observed that contempt of court has various kinds, e.g. insult to Judges; attacks upon them; comment on pending proceedings with a tendency to prejudice fair trial; obstruction to officers of Courts, witnesses or the parties; scandalising the Judges or the courts; conduct of a person which tends to bring the authority and administration of the law into disrespect or disregard. Such acts bring the court into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority. In a given case, such a conduct be committed in respect of the whole of the judiciary or judicial system;

The court rejected the argument that in particular circumstances conduct of the alleged contemnor may be protected by Article 19(1)(a) of the Constitution i.e. right to freedom of speech and expression, observing that the words of the second clause, of the same provision bring any existing law into operation, thus provisions of the Act 1971 would come into play and each case is to be examined on its own facts and the decision must be reached in the context of what was done or said.

15. Thus, it is apparent that the contempt jurisdiction is to uphold majesty and dignity of the law courts and the image of such majesty in the minds of the public cannot be allowed to be distorted. Any action taken on contempt or punishment enforced is aimed at protection of the freedom of individuals and orderly and equal administration of laws and not for the purpose of providing immunity from criticism to the judges. The superior courts have a duty to protect the reputation of judicial officers of subordinate courts, taking note of the growing tendency of maligning the reputation of judicial officers by unscrupulous practising advocates who either fail to secure desired orders or do not succeed in browbeating for achieving ulterior purpose. Such an issue touches upon the independence of not only the judicial officers but brings the question of protecting the reputation of the Institution as a whole.

16. The dangerous trend of making false allegations against judicial officers and humiliating them requires to be curbed with heavy hands, otherwise the judicial system itself would collapse. The Bench and the Bar have to avoid unwarranted situations on trivial issues that hamper the cause of justice and are in the interest of none; Liberty of free expression is not to be confounded or confused with license to make unfounded allegations against any institution, much less the Judiciary. A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client maligning the reputation of judicial officers merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalise the court which would shake the confidence of the litigating public in the system, would cause a very serious damage to the Institution of judiciary. An Advocate in a profession should be diligent and his conduct should also be diligent and conform to the requirements of the law by which an Advocate plays a vital role in the preservation of society and justice system. Any violation of the principles of professional ethics by an Advocate is unfortunate and unacceptable. (Vide: O.P. Sharma & Ors. v. High Court of Punjab & Haryana, (2011) 5 SCALE 518).

17. This Court in M.B. Sanghi v. High Court of Punjab & Haryana & Ors., (1991) 3 SCC 600, observed as under: 
The foundation of our system which is based on the independence and impartiality of those who man it will be shaken if disparaging and derogatory remarks are made against the presiding judicial officer with impunity....It is high time that we realise that much cherished judicial independence has to be protected not only from the executive or the legislature but also from those who are an integral part of the system. An independent judiciary is of vital importance to any free society.

18. This leads us to the question as to whether the facts and circumstances referred hereinabove warrant acceptance of apology tendered by the appellant.

The famous humorist P.G. Wodehouse in his work; The Man Upstairs (1914); described apology :
The right sort of people do not want apologies, and the wrong sort take a mean advantage of them.
The apology means a regretful acknowledge or excuse for failure. An explanation offered to a person affected by one's action that no offence was intended, coupled with the expression of regret for any that may have been given. Apology should be unquestionable in sincerity. It should be tempered with a sense of genuine remorse and repentance, and not a calculated strategy to avoid punishment

19. Clause 1 of Section 12 and Explanation attached thereto enables the court to remit the punishment awarded for committing the contempt of court on apology being made to the satisfaction of the court. However, an apology should not be rejected merely on the ground that it is qualified or tempered at a belated stage if the accused makes it bona fide. There can be cases where the wisdom of rendering an apology dawns only at a later stage.

20. Undoubtedly, an apology cannot be a defence, a justification, or an appropriate punishment for an act which is in contempt of court. An apology can be accepted in case the conduct for which the apology is given is such that it can be ignored without compromising the dignity of the court;, or it is intended to be the evidence of real contrition. It should be sincere. Apology cannot be accepted in case it is hollow; there is no remorse; no regret; no repentance, or if it is only a device to escape the rigour of the law. Such an apology can merely be termed as paper apology.

21. In Re: Bal Thackeray, Editor Samna, (1998) 8 SCC 660, this Court accepted the apology tendered by the contemnor as the Court came to conclusion that apology was unconditional and it gave an expression of regret and realisation that mistake was genuine.

22. In L.D. Jaikwal v. State of U.P., AIR 1984 SC 1374, the court noted that it cannot subscribe to the 'slap-say sorry- and forget' school of thought in administration of contempt jurisprudence. Saying 'sorry' does not make the slapper poorer.

(See also: T.N. Godavarman Thirumulpad v. Ashok Khot & Anr., AIR 2006 SC 2007)

So an apology should not be paper apology and expression of sorrow should come from the heart and not from the pen; for it is one thing to 'say' sorry-it is another to 'feel' sorry.

23. An apology for criminal contempt of court must be offered at the earliest since a belated apology hardly shows the contrition which is the essence of the purging of a contempt. However, even if the apology is not belated but the court finds it to be without real contrition and remorse, and finds that it was merely tendered as a weapon of defence, the Court may refuse to accept it. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment, it ceases to be an apology and becomes an act of a cringing coward. (Vide :Mulkh Raj v. The State of Punjab, AIR 1972 SC 1197; The Secretary, Hailakandi Bar Association v. State of Assam & Anr., AIR 1996 SC 1925; C. Elumalai and Ors. v. A.G.L. Irudayaraj and Anr., AIR 2009 SC 2214; and Ranveer Yadav v. State of Bihar, (2010) 11 SCC 493).

24. In Debabrata Bandopadhyay & Ors. v. The State of West Bengal & Anr., AIR 1969 SC 189, this Court while dealing with a similar issue observed as under:
Of course, an apology must be offered and that too clearly and at the earliest opportunity. A person who offers a belated apology runs the risk that it may not be accepted for such an apology hardly shows the contrition which is the essence of the purging of a contempt. However, a man may have the courage of his convictions and may stake his on proving that he is not in contempt and may take the risk. In the present case the appellants ran the gauntlet of such risk and may be said to have fairly succeeded.

25. This Court has clearly laid down that apology tendered is not to be accepted as a matter of course and the Court is not bound to accept the same. The court is competent to reject the apology and impose the punishment recording reasons for the same. The use of insulting language does not absolve the contemnor on any count whatsoever. If the words are calculated and clearly intended to cause any insult, an apology if tendered and lack penitence, regret or contrition, does not deserve to be accepted. (Vide: Shri Baradakanta Mishra v. Registrar of Orissa High Court & Anr., AIR 1974 SC 710; The Bar Council of Maharashtra v. M.V. Dabholkar etc., AIR 1976 SC 242; Asharam M. Jain v. A.T. Gupta & Ors., AIR 1983 SC 1151; Mohd. Zahir Khan v. Vijai Singh & Ors., AIR 1992 SC 642; In Re: Sanjiv Datta, (1995) 3 SCC 619; and Patel Rajnikant Dhulabhai & Ors. v. Patel Chandrakant Dhulabhai & Ors., AIR 2008 SC 3016).

Recoveries on Disclosure Statements of Accused and Adverse Inference : The Law

Justice Dr. BS Chauhan
Supreme Court of India
The Supreme Court in a recent decision, in State of Rajasthan v. Talevar & Anr., has examined whether an adverse inference could be drawn against an accused merely on the basis of recoveries made on their disclosure statements and whether the same attracts the presumption under Section 114 illustration (a) of the Indian Evidence Act. The relevant extracts from the judgment are reproduced hereinbelow;

7.1. In Gulab Chand v. State of M.P., AIR 1995 SC 1598, this Court upheld the conviction for committing dacoity on the basis of recovery of ornaments of the deceased from the possession of the person accused of robbery and murder immediately after the occurrence.

7.2. In Geejaganda Somaiah v. State of Karnataka, AIR 2007 SC 1355, this Court relied on the judgment in Gulab Chand (supra) and observed that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced.

It has been indicated by this Court in Sanwat Khan v. State of Rajasthan, AIR 1956 SC 54, that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances.

7.3. In Tulsiram Kanu v. State, AIR 1954 SC 1, this Court has indicated that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act 1872 has to be drawn under the 'important time factor'. If the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if a long period has expired in the interval, the presumption cannot be drawn having regard to the circumstances of the case.

7.4. In Earabhadrappa v. State of Karnataka AIR 1983 SC 446, this Court held that the nature of the presumption under Illustration (a) of Section 114 of the Evidence Act must depend upon the nature of evidence adduced. No fixed time-limit can be laid down to determine whether possession is recent or otherwise. Each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according "as the stolen article is or is not calculated to pass readily from hand to hand". If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed could not be said to be too long particularly when the appellant had been absconding during that period.

7.5. Following such a reasoning, in Sanjay @ Kaka etc. etc. v. The State (NCT of Delhi), AIR 2001 SC 979, this Court upheld the conviction by the trial court since disclosure statements were made by the accused persons on the next day of the commission of the offence and the property of the deceased was recovered at their instance from the places where they had kept such properties, on the same day. The Court found that the trial Court was justified in holding that the disclosure statements of the accused persons and huge recoveries from them at their instance by itself was a sufficient circumstance on the very next day of the incident which clearly went to show that the accused persons had joined hands to commit the offence of robbery. Therefore, recent and unexplained possession of stolen properties will be taken to be presumptive evidence of the charge of murder as well.

7.6. In Ronny Alias Ronald James Alwaris & Ors. v. State of Maharashtra, AIR 1998 SC 1251, this Court held that apropos the recovery of articles belonging to the family of the deceased from the possession of the appellants soon after the robbery and the murder of the deceased remained unexplained by the accused, and so the presumption under Illustration (a) of Section 114 of the Evidence Act would be attracted :

It needs no discussion to conclude that the murder and the robbery of the articles were found to be part of the same transaction. The irresistible conclusion would therefore, be that the appellants and no one else had committed the three murders and the robbery."

(See also: Baijur v. State of Madhya Pradesh, AIR 1978 SC 522; and Mukund alias Kundu Mishra & Anr. v. State of Madhya Pradesh, AIR 1997 SC 2622).

7.7. Thus, the law on this issue can be summarized to the effect that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. It also depends on the nature of the property so recovered, whether it was likely to pass readily from hand to hand. Suspicion should not take the place of proof.

Saturday, June 11, 2011

Filing of Documents / Pleadings / Application before District Courts : Need for Rules : Delhi High Court issues Notice

Justice Valmiki J. Mehta of the Delhi High Court in his order dated 2nd June, 2011 in Shamken Multifab Ltd. v. Satyam Packers had the occassion to deal with the lack of rules relating to filing of documents before the District courts in Delhi. Justice Valmiki J. Mehta has issued notice to the District and Sessions Judge, Delhi as also to the Chief Justice, Delhi High Court to examine the need to formulate rules for filing of documents / pleadings / applications before the District Courts. The relevant extracts from the order are reproduced hereinbelow;

In my opinion, this case raises a much larger question. It is found, in the District Courts, whenever, a litigant/counsel files any pleading/application/document etc., there is no filing counter at which such pleading/documents/application etc. can be filed and consequently, there is no proof which is immediately available with the litigant/counsel of the aforesaid having been filed. This can either cause inadvertent mistake or in certain extreme circumstances may even be exercised by a person with a vested right. It is, therefore, necessary that this larger question be examined by requiring framing of rules including as to whether filing number must be given necessarily to the litigant/counsel with respect to every pleading/application/document etc. which is filed in a court in the District Courts, or in the alternative a receipt should be given by the court staff or any other modality to ensure that counsel/litigant who files a pleading/document/application etc. in any court in the District Courts, has necessary proof/particulars of having filed the same.

5. Let a copy of this order be sent to the District and Sessions Judge, Delhi so as to examine the issue and report of the same be given to the court on the next date of hearing. It is also thought desirable that a copy of this order be placed before Hon'ble the Chief Justice of this court in view of the importance of the issue, so that the matter can be looked into.

The next date of hearing in the matter is 21st October, 2011.

(Reference : CM (M) No. 700 of 2011 titled "Shamken Multifab Ltd. v Satyam Packers")

Summoning the Adversary's Advocate as a Witness : Permissibility under Code of Civil Procedure

Justice G.S. Singhvi
Supreme Court of India
The Supreme Court in Kokkanda B. Poondacha and Ors. v. K.D. Ganapathy and Anr. has examined an interesting legal proposition, whether one of the parties in a suit could cite the advocate representing the other side as a witness in the list filed under Order XVI Rule 1(1) and (2) read with Section 151 of the Code of Civil Procedure (CPC) or not?

The next question which needs consideration is whether a litigant filing the list of witnesses is bound to indicate, howsoever briefly, the relevance of the witness to the subject matter of the suit etc., and, in any case, one party to the proceedings cite the advocate representing the other side as a witness and thereby deprive the latter of the services of the advocate without disclosing as to how his testimony is relevant to the issues arising in the case. In Mange Ram vs. Brij Mohan (supra), this Court interpreted Order XVI Rule 1 (1),(2) and (3) CPC and observed: 

"If the requirements of these provisions are conjointly read and properly analysed, it clearly transpires that the obligation to supply the list as well as the gist of the evidence of each witness whose name is entered in the list has to be carried out in respect of those witnesses for procuring whose attendance the party needs the assistance of the court." 

6. At this stage, we may also advert to the nature of relationship between a lawyer and his client, which is solely founded on trust and confidence. A lawyer cannot pass on the confidential information to anyone else. This is so because he is a fiduciary of his client, who reposes trust and confidence in the lawyer. Therefore, he has a duty to fulfill all his obligations towards his client with care and act in good faith. Since the client entrusts the whole obligation of handling legal proceedings to an advocate, he has to act according to the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness and loyalty. The duties of an advocate to the Court, the client, opponent and colleagues are enumerated in Chapter II of Part IV of the Bar Council of India Rules, 1975 (for short, "the Rules"). Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV of the Rules, which regulate the duty of an advocate to the client, read as under: 

"12. An advocate shall not ordinarily withdraw from engagements, once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned. 

13. 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. 

14. An advocate shall, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client's judgment in either engaging him or continuing the engagement. 

15. It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence." 

7. An analysis of the above reproduced Rules show that one of the most important duty imposed upon an advocate is to uphold the interest of the client fearlessly by all fair and honourable means. An advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client. If he has reason to believe that he will be a witness in the case, the advocate should not accept a brief or appear in the case. In V. C. Rangadurai v. D. Gopalan (1979) 1 SCC 308, A.P.Sen, J. outlined the importance of the relationship of an advocate with his client in the following words: 

"Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession. Lord Brougham, then aged eighty-six, said in a speech, in 1864, that first great quality of an advocate was 'to reckon everything subordinate to the interests of his client'. What he said in 1864 about 'the paramountcy of the client's interest', is equally true today. The relation between a lawyer and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character requiring a high degree of fidelity and good faith. It is purely a personal relationship, involving the highest personal trust and confidence which cannot be delegated without consent. A lawyer when entrusted with a brief, is expected to follow the norms of professional ethics and try to protect the interests of his clients, in relation to whom he occupies a position of trust. The appellant completely betrayed the trust reposed in him by the complainants." 

8. If the prayer made by the respondents for being allowed to cite Shri N. Ravindranath Kamath as a witness is critically scrutinised in the backdrop of the above noted statement on the duties of an advocate towards his client, we have no 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 concerned advocate was engaged by the plaintiffs-appellants in 1996 i.e. almost 11 years prior to the filing of application by the respondents under Order XVI Rule 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 have been forced to withdraw from the case. Luckily for the appellants, the trial Court could see the game plan of the respondents and frustrated their design by partly dismissing the application. The learned Single Judge ignored that the respondents had included the name of Shri N. Ravindranath Kamath in the list of witnesses proposed to be summoned by them with an oblique motive of boarding him out of the case and passed the impugned order by recording one line observation that the respondents were not required to give reasons for summoning the particular person as a witness. We may add that if the parties to the litigation are allowed to file list of witnesses without indicating the purpose for 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 insists that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness. In the result, the appeal is allowed, the impugned order is set aside and the one passed by the trial Court is restored. The respondents shall pay cost of Rs.50,000/- to the appellants.
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