Gujarat High Court
Karsanbhai Kalidas Panchal vs Jawanji Abhuji Thakor on 31 January, 2025
NEUTRAL CITATION
C/SCA/12919/2024 ORDER DATED: 31/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R.SPECIAL CIVIL APPLICATION NO. 12919 of 2024
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2024
In R.SPECIAL CIVIL APPLICATION NO. 12919 of 2024
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KARSANBHAI KALIDAS PANCHAL
Versus
JAWANJI ABHUJI THAKOR & ORS.
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Appearance:
MR JAYRAJ CHAUHAN(2966) for the Petitioner(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 31.01.2025
ORAL ORDER
1. The present application is filed under Article 227 of the Constitution of India for the following reliefs:-
"(A) Your Lordships may be pleased to admit and allow present writ petition;
(B) Your Lordships may be pleased to quash and set aside the impugned order dated 09.07.2024 passed by the learned Principal Senior Civil Judge, Gandhinagar below Exh. 200 in Special Civil Suit No. 381 of 1995 at Annexure - К;
(C) Be pleased to direct the court below to record evidence of said witness forthwith so as to avoid any further delay in conducting the Special Civil Suit No. 381 of 1995;
Interim Relief:
(D) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to stay the further operation, implementation and execution of the impugned order dated 09.07.2024 passed by the Principal Senior Civil Judge, Gandhinagar Page 1 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined below Exh. 200 in Special Civil Suit No. 381 of 1995 at Annexure
- K;
(E) Pass such other and further orders as may deem fit in the interest of justice."
2. The short facts of the case appear to be as under.
2.1 The petitioners are plaintiffs of Special Civil Suit No.381 of 1995, which came to be filed by them against respondent Nos. 1 to 3, seeking specific performance of the agreement to sell dated 24.08.1984 for the suit property.
2.2 The petitioner has preferred an application below Exhibit 196 on 15.05.2024, thereby requesting the Trial Court to issue witness summons, including summons to be issued against respondent No.5, who happens to be the learned advocate of respondent Nos. 1, 2, and 3 - the original defendants.
2.3 The Trial Court appears to have accepted such requests, thereby issued witness summons as prayed for by the plaintiff. Respondent No.5 has submitted an application below Exhibit-200 before the Trial Court, thereby requesting the Trial Court to give exemption to respondent No.5 as a witness, on the strength of Section 126 of the Evidence Act, 1872 (hereinafter referred to as "the Act"). The petitioner appears to have objected to such an application by filing his detailed Page 2 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined reply.
2.4 After hearing the parties, the Trial Court has allowed the impugned application filed below Exhibit-200 vide its order dated 09.07.2024, thereby exempting respondent No.5, being an advocate, from deposing as a witness in the suit property.
3. Being aggrieved and dissatisfied with the order dated 09.07.2024, passed by the Principal Senior Civil Judge, Gandhinagar, below Exhibit -200 of Special Civil Suit No.381 of 1995, the petitioners have preferred the present application.
SUBMISSION OF THE PETITIONER
4. Learned advocate Mr. Jayraj Chauhan would submit that the impugned order passed by the Trial Court is expressly contrary to law while misinterpreting Section 126 of the Act, thereby resulting in failure of justice.
4.1 Learned advocate Mr Jayraj Chauhan would submit that after the demise of respondent Nos. 1, 2 and 3, respondent No.5 herein has no relationship as an advocate with the deceased respondent No. 1, 2 and 3 (original defendant Nos. 1, 2 and 3), so no exemption can be granted in favor of respondent No.5.
4.2 Learned advocate Mr Jayraj Chauhan would further submit that the act, which was done by respondent No.5 by issuing a public notice and thereafter issuing a Title Clearance Page 3 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined Certificate of the suit property in question in favor of respondent No.1 was beyond the professional act undertaken by respondent No.5 - advocate.
4.3 Learned advocate Mr Jayraj Chauhan would submit that on the demise of original defendant Nos. 1 to 3, the relationship of client and advocate terminated, thereby respondent No.5 - advocate of defendant Nos. 1, 2 and 3, lost the protection given to him under Section 126 of the Act. The plaintiff has the right to examine the advocate concerned in relation to misdeeds done by him while issuing a public notice followed by the Title Clearance Certificate.
4.4 Learned advocate Mr Jayraj Chauhan submits that the Trial Court, without appreciating the material aspects of the matter and wrongly interpreting the provisions of law, allowed the impugned application filed by respondent No.5 below Exhibit 200, which has resulted into miscarriage of justice thereby requests it to be corrected by this court by exercising its power under Article 227 of the Constitution of India.
4.5 To buttress his argument, Mr Jayraj Chauhan has relied upon the following decisions.
(i) Ms.Rebecca Mondal vs. Emperor, reported in AIR 1947 Culcutta 278;
(ii) Pratti Rajamma vs. Pratti Chintaniah reported Page 4 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined in 1973 Cr. L.J. 1489;
(iii) Daya Shankar Dubey vs. Subhas Kumar reported in 1992 Criminal L.J. 319;
(iv) P.G.Anantsayanam and others vs. Miryala Sathiraju and others reported in AIR 1998 Andhra Pradesh 335;
(v) Devendra (Smt.) Wd./o Chnadrakant Godam vs. Smt. Sushila Wd.o Chandrakant Gedam 2010 SCC OnLine Bom. 466.
4.6 Making the above submission, learned advocate Mr Jayraj Chauhan would request this court to allow the petition as prayed for.
5. No other and further submissions are made.
ANALYSIS
6. The short controversy which arises for consideration before this court is in a narrow compass. Respondent No.5 happens to be the lawyer of original defendant Nos. 1, 2 and 3 and those original defendants No. 1 to 3 died during the pendency of the aforesaid suit.
7. It further appears that during the pendency of the suit, a public notice came to be issued by respondent No.5 dated 12.04.2004 published on 13.04.2004 in the daily newspaper Page 5 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined Sandesh, wherein it has been contended that defendant Nos. 1 to 3 had sought for a Title Clearance Certificate of the suit property. As defendant No.1 is reported died on 22.08.2001, nonetheless, name of the widow of defendant No.2 - Kantaben Bhalaji Thakor (now defendant no. 2/1), is mentioned in the aforesaid notice. Later on, vide his letter dated 27.04.2004, respondent No.5 issued a Title Clearance Certificate by addressing the letter in favor of defendant No.1 - Jawanji Abhuji Thakor.
8. The plaintiff appears to have amended the suit by bringing the legal heirs of defendant Nos. 1 to 3 as well as added defendant No.4, who appears to have purchased the suit property from defendant Nos. 1, 2 and 3.
9. Such amendments were carried out on 09.05.2014, 09.05.2018, and 29.01.2019 respectively. Nonetheless, no amendment in the plaint vis-à-vis factual aspects has been incorporated including prayer clause thereby no allegation levelled against either defendant no.4 (newly added party) or respondent No.5-advocate of original defendant no.1 to 3.
10. Be that as it may, petitioners herein appear to have filed an application below Exhibit 196 requesting for issuance of witness summons, including the issuance of summons to respondent No.5 - advocate of defendant Nos. 1, 2 and 3. Such Page 6 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined an application was filed on 15.05.2024, which came to be allowed by the Trial Court on 15.05.2024 itself, albeit, no reasons were assigned to grant witness summons against respondent No.5.
11. Respondent No.5, having come to know about such order, appears to have filed the impugned application Ex.200, thereby praying before the Trial Court that the said application filed by the plaintiff may be rejected and he may be exempted as a witness.
12. In the said backdrop of the case, the original plaintiff, having not been able to convince the Trial Court, thereby it has allowed the application filed by respondent No.5 - advocate of Defendant Nos.1 to 3, below Exhibit 200 and granted him exemption as a witness, and such order is under challenge.
13. At this stage, this court also requires to consider and keep in mind the ratio laid down by the Honorable Supreme Court of India in the case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374, and Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 while exercising its power under Article 227 of the Constitution of India.
14. Before appreciating the submissions of the learned Page 7 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined advocate appearing for the petitioners, this court would like to rely upon Section 126 of the Evidence Act 1872, which reads as under:-
126. Professional communications.
No barrister, attorney, pleader or vakil, shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment :
Provided that nothing in this section shall protect from disclosure -
(1) any such communication made in furtherance of any [illegal] [Substituted by Act 18 of 1872, Section 10, for "criminal".] purpose ;
(2) any fact observed by barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of such barrister, [pleader] [Inserted by Act 18 of 1872, Section 10.], attorney or vakil was or was not directed to such fact by or on behalf or his client. Explanation. - The obligation stated in this section continues after the employment has ceased.
Illustrations
(a) A, a client, says to B, an attorney - "I have committed forgery and I wish you to defend me".
As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.
(b) A, a client, says to B, an attorney - "I wish to obtain possession of property by the use of a forged deed on which I request you to sue."
This communication, being made in furtherance of a criminal Page 8 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined purpose, is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A's account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.
15. The submissions which have been canvassed by learned advocate Mr. Jayraj Chauhan is contrary to the provisions of Section 126 of the Evidence Act. The plain reading of Section 126 of the Evidence Act would clearly indicate that even if the relation between the client and attorney or advocate or pleader or Vakil ceases, the obligation so stated in the said section would continue.
16. So, even after the demise of defendant Nos. 1, 2 and 3, who had engaged the services of respondent No.5 either as an advocate to defend themselves in the suit or for issuance of Public Notice and or for issuing a Title Clearance Certificate for the suit property in question, respondent No.5 cannot be called upon by the plaintiff as witness to depose in relation to any of his such acts either performed on behalf of defendant Nos. 1, 2 and 3 in the suit or issuing a public notice followed by a Title Clearance Certificate.
17. The language of Section 126 of the Evidence Act is in Page 9 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined negative, thereby no authorized barrister/attorney/pleader or Vakil shall, at any time, be permitted to disclose any communication made to him in the course and for the purpose of his employment by or on behalf of his client or to state the contents and condition of any document with which he has become acquainted in the course of his professional employment, or to disclose any advice given by him to his client.
18. The object and purpose of Section 126 of the Act is to maintain confidentiality of any act, whatsoever in nature, between the client and attorney, thereby allowing the attorney to fully act on behalf of the client without any fear.
19. Nevertheless, the proviso to Section 126 carves out an exception to the said cover given to the attorney, and only in those two contingencies, such protected cover available to the attorney would not be applicable.
20. In the present case, the plaintiff has not made out any such exception carved out in the proviso of Section 126 of the Act, i.e., communication made in furtherance of any illegal purpose, or where any agreement or fraud has been committed since the commencement of his employment.
21. It is also pertinent to note and correctly observed by the Trial Court that there is no such pleading of the plaintiff in his Page 10 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined plaint whereby any of the two contingencies so mentioned in the proviso to Section 126 is either pleaded or made out in the plaint.
22. In such a scenario, the application filed by the plaintiff below Exhibit 196 in relation to calling upon respondent No.5 as a witness is misconceived at law which could not have been allowed qua respondent no.5.
23. So far as the judgments, which are placed reliance upon by learned advocate Mr. Jayraj Chauhan is concerned, none of the judgments would be applicable and helpful to him and having binding effect on this Court, albeit, persuasive value. As such, each case is required to be considered on its own facts, and at the end, the party has to make out a case when it prays for the issuance of witness summons to the advocate engaged by opponent falls within S.126 of Act.
24. In the case of Ms. Rebecca Mondal (Supra), it was a case where a publication of imputation concerning a third person was made by a lawyer in the court in the presence of his client for all the world to hear. In such backdrop of facts, the Honorable Calcutta High Court had not granted protection in favor of the lawyer concerned, thereby not extending the benefit of Section 126 of the Act, which is not the case here.
25. In the case of Pratti Rajamma (supra), it was a case Page 11 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined where the notice, which was issued by the lawyer, was a communication by the client to the advocate, which was published in the form of notice, and such notice was produced in the court in a defamation case. In that regard, the Honorable Andhra Pradesh High Court allowed the examination of the lawyer to prove the notice.
26. Likewise, in the case of Daya Shankar Dubey (Supra), the so-called information of the lawyer was already submitted before the court. Thereby, in the peculiar facts and circumstances of the case, the Allahabad High Court did not accept the plea to give protection under Section 126 of the Act.
27. In the case of P.G.Anantsayanam and others (Supra), the facts of the case before the Andhra Pradesh High Court were completely different than the present one. In that case, the purpose of summoning the advocate was only to prove the sending of the notice, which was sent by the advocate on the information supplied by the client.
28. Lastly, the decision in the case of Devendra (Smt.) Wd./o Chnadrakant Godam (Supra) is also not applicable to the facts of the case, because it has been observed by the Bombay High Court that the preparation of a deed of divorce is not on account of any professional communication. As such, in the Page 12 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined present case, it is not the case of any of the defendants that such public notice and title clearance certificate were not issued by respondent No.5 on their request. On the request of defendant Nos.1 to 3, including legal heirs of defendant No.2 i.e. Kantaben Bhalaji Thakor, the same has been done.
29. Thus, facts of these cases and the facts of the case at hand are not similar, inasmuch as the public notice and title clearance certificate are independent acts of the lawyer, albeit, under the instruction of his clients, i.e., defendant Nos. 1 to 3. What is submitted in the present case is a public notice and the title clearance certificate issued by respondent No.5, which is submitted by defendant No.4 on entering his appearance.
30. The purpose of calling respondent No.5, as spelt out from the application at Exhibit 196 by the plaintiff, is that whatever act was undertaken by respondent No.5 in the aforesaid suit as well as Regular Civil Suit No.668 of 1995, which was disposed of in the year 2007, for which he could not be summoned in view of Section 126 of the Act.
31. As stated hereinabove, the notice and title clearance certificate are already on record and not disputed by any of the defendants. So, plaintiffs cannot be allowed to question the advocate in relation to any communication taking place between the original defendant Nos. 1 to 3 with respondent Page 13 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined No.5, being a privy communication between client and attorney.
32. At this stage, it is apt to refer and rely upon the decision of the Honorable Supreme Court of India in the case of Kokkanda B. Poondacha and others vs. K.D. Ganapathi and another reported in 2011 (12) SCC 600, wherein, considering the scope, ambit, and power of the High Court while exercising its power under Article 227 of the Constitution, and in relation to a similar controversy that arose, it observed thus:-
"12. 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 fulfil 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.
13. 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 Page 14 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined 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."
14. An analysis of the above reproduced Rules shows that one of the most important duties 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.
15. 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: (SCC p. 319, para 31) "31. 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 the 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 Page 15 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined 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."
16. 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 abovenoted 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 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.
17. 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 a one-line observation that the respondents were not required to give reasons for summoning the particular person as a witness."
(Emphasis Supplied)
33. It is also apt to refer and rely upon the decision of High Page 16 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined Court of Madras in the case of K. Pnnammal vs. A Loganathan reported in 2009 LawSuit (Mad) 1556, wherein it has been held as under:-
"[9] Section 126 of the Evidence Act was introduced to serve dual purpose. This provision protects the party as well as the counsel. The Counsel is not expected to disclose or divulge the communication which he has received from his client in his capacity as a lawyer. However this is not applicable to a communication made in furtherance of any illegal purpose or in respect of a crime or fraud noticed by him in the course of his employment as a professional. It would be possible for the Counsel to disclose the confidential communication with the permission of the party. This would also help the client to keep the information only with his Counsel without exposing the risk of others coming to know of such information. The obligation as per the mandate of Section 126 continues even after the cessation of the engagement as a counsel. Therefore the Counsel is obliged to protect the interest of the client during the subsistence of the professional engagement and even thereafter.
[10] This protective umbrella also saves the Counsel from unwanted and unnecessary proceedings. In case the Counsel was made to disclose the professional communication which he receives from his client in strict confidence, it would cause difficulties to the Counsel as well as to the client. The Counsel would be exposed to the risk of appearing as a witness in the proceedings in which his client was a party even after cessation of his engagement. After all the Counsel is only carrying the brief of the client. He has no personal interest in the matter. He is a member of a noble profession and the Society considers him as indispensable. It is true that the lawyer has to show utmost care while dealing with the case of the clients. The lawyers cannot be identified with parties. Similarly for the fault committed by the parties, lawyer cannot be punished. In case proceedings are also taken against the lawyer for the acts or omission committed by their clients, no lawyer would be able to discharge his function without fear. This is an independent profession and as such the lawyer should be permitted to discharge Page 17 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined his function without any external pressure. Therefore Section 126 was intended to take care of such situation."
(Emphasis Supplied)
34. Thus, after analyzing the aforesaid provisions of law vis- à-vis the facts appearing from the record, it clearly suggests that the plaintiffs have wrongly sought for witness summons of respondent No.5, who happens to be the lawyer of defendant Nos. 1 to 3 in the suit, for the act undertaken by him as a lawyer on behalf of defendant Nos. 1 to 3, including issuing a public notice and giving a title clearance certificate for the suit property.
35. The act of the plaintiff is mischievous and prima facie appears to derail the trial of the suit instituted in the year, 1995, thereby consuming the civil court's as well as this court's time on the issue, which is not part of the pleadings of the plaint. This type of frivolous and mischievous endeavor made by the litigant requires to be curbed, otherwise, the civil court may not be in a position to complete the trial of a civil suit in a stipulated time.
36. Having found that there is no merit in the petition, this court would like to impose costs upon the petitioner for wasting the precious time of the civil court as well as this court, which is quantified to Rs.10,000/-, to be deposited by the petitioner-plaintiff within a period of four weeks from the Page 18 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025 NEUTRAL CITATION C/SCA/12919/2024 ORDER DATED: 31/01/2025 undefined date of receipt of the copy of order with the District Legal Service Authority, Gandhinagar.
37. The Trial Court is requested to see that the plaintiff shall deposit such an amount of costs and submit its receipt in the suit. After that, the plaintiff may be allowed to place his evidence, if not done and/or exercise their right to cross- examine defendants and/or their witnesses.
CONCLUSION
38. After examining the controversy involved in the impugned application, I am in complete agreement with the reasons assigned by the Trial Court while allowing the impugned application filed by respondent No.5 below Exhibit 200 in Special Civil Suit No.381 of 1995 pending before the Principal Senior Civil Judge, Gandhinagar.
39. Respondent No.5, being an advocate of original defendant Nos. 1 to 3 in Special Civil Suit No.381 of 1995, was not required to be called upon as a witness in relation to his act undertaken by him on behalf of his client in relation to suit proceedings and not required to divulge any information or communication between defendant Nos. 1 to 3 and respondent No.5 in relation to public notice and title clearance certificate in question, which are neither part of the pleadings of the plaint nor submitted by the plaintiff as the case may be.
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40. The Trial Court has correctly extended the benefit of Section 126 of the Indian Evidence Act to respondent No.5 while allowing his impugned application filed below Exhibit-
200.41. Thus, in view of the aforesaid observations, discussions, and reasons, I do not find any merit in the present petition. Even otherwise, in view of the ratio of Sameer Suresh Gupta (Supra) and Garment Craft (supra) apply to the facts of the present application, the petition lacks merit, thereby this court would not like to entertain the present application, which requires to be dismissed with costs as aforesaid. Hence, the present application is hereby DISMISSED with costs of Rs.10,000/- to be deposited by the petitioners - plaintiffs as directed hereinabove.
(MAULIK J.SHELAT,J) MOHD MONIS Page 20 of 20 Uploaded by MOHD MONIS(HC01900) on Wed Feb 12 2025 Downloaded on : Sat Feb 15 01:10:07 IST 2025