Mathew Sebastian,Advocate vs Paulose

Kerala High Court

Mathew Sebastian,Advocate vs Paulose on 21 May, 2024

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
              THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
        TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                          RP NO. 447 OF 2024
AGAINST THE JUDGMENT DATED 29.02.2024 IN OP(C) NO.545 OF 2024 OF
HIGH COURT OF KERALA
REVIEW PETITIONER/3RD PARTY:

            MATHEW SEBASTIAN,ADVOCATE
            AGED 78 YEARS
            S/O. SEBASTIAN, PONOTH ROAD, KALOOR, ERNAKULAM,COCHIN,
            PIN - 682017
            BY ADVS.
            M.BALAGOVINDAN
            LAL KUMAR N.


RESPONDENTS/PETITIONER/RESPONDENTS:

    1       PAULOSE
            AGED 60 YEARS
            S/O. VARKEY, PALAKKUNNEL HOUSE, KADAKKANADU KARA,
            MAZHUVANOOR VILLAGE, KUNNATHUNADU, ERNAKULAM,
            PIN - 686669
    2       P.V.THOMAS
            AGED 75 YEARS
            S/O. VARKEY, PALAKKUNNEL HOUSE, KADAKKANADU KARA,
            MAZHUVANOOR VILLAGE, KUNNATHUNADU, ERNAKULAM,
            PIN - 686669
    3       FR BABU JOHN
            AGED 52 YEARS
            S/O. JOHN, PALAKKUNNEL HOUSE, KADAKKANADU KARA,
            MAZHUVANOOR VILLAGE, KUNNATHUNADU, ERNAKULAM,
            PIN - 686669
    4       RAJU
            AGED 60 YEARS
            S/O. OUSEPH PALAKKUNNEL HOUSE, KADAKKANADU KARA,
            MAZHUVANOOR VILLAGE, KUNNATHUNADU, ERNAKULAM,
            PIN - 686669
    5       KURIACHAN.P.P.
            AGED 63 YEARS
            S/O PAULOSE, PUTHUSSERRY MOLE HOUSE, KADAKKANADUKARA,
            MAZHUVANOOR VILLAGE, KUNNATHU NADU, ERNAKULAM.,
            PIN - 686669
    6       GEORGE
            AGED 77 YEARS
 R.P.No.447 of 2024
                              ..2..



         S/O PAULOSE, KPUTHUSSERY MOLEL HOUSE, KADAKKANADU
         KARA, MAZHUVANOOR VILLAGE, KUNNATHUNADU,
         ERNAKULAM., PIN - 686669
    7    MARIAMMA
         AGED 67 YEARS
         W/O. ULAHANNA, KATTUCHIRAYIL HOUSE, KADAKKANADU
         KARA, MAZHUVANOOR VILLAGE, KUNNATHUNADU,
         ERNAKULAM-, PIN - 686669
    8    KUMARAN
         AGED 60 YEARS
         S/O. AYYAPPAN, PALLATTUKUDIYIL HOUSE, KADAKKANADU
         KARA, MAZHUVANOOR VILLAGE, KUNNATHUNADU,
         ERNAKULAM-, PIN - 686669
    9    SIVAN
         AGED 65 YEARS
         S/O. LATE AYYAPPAN, PARAKKAL HOUSE,
         KADAKKANADUKARA,MAZUVANOOR
         VILLAGE,KUNNATHUNADU,ERNAKULAM., PIN - 686669
   10    KUMARI
         AGED 60 YEARS
         W/O. SIVAN, PARAKKAL HOUSE, KADAKKANADU KARA,
         MAZHUVANOOR VILLAGE, KUNNATHUNADU, ERNAKULAM,
         PIN - 686669
   11    TINTO
         AGED 37 YEARS
         D/O. SIVAN, PARAKKAL HOUSE, KADAKKANADU KARA,
         MAZHUVANOOR VILLAGE, KUNNATHUNADU, ERNAKULAM-,
         PIN - 686669
   12    ANEESH
         AGED 40 YEARS
         H/O. TINTO PARAKKAL HOUSE, KADAKKANADU KARA,
         MAZHUVANOOR VILLAGE, KUNNATHUNADU, ERNAKULAM.,
         PIN - 686669
         ADV.P.THOMAS GEEVARGHESE - R1
     THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
21.05.2024,   THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 R.P.No.447 of 2024
                             ..3..




                   O R D E R

Dated this the 21st day of May, 2024 The petitioner, a stranger to O.P.(C)No.545/2024, seeks review of the judgment dated 29.02.2024 in the said Original Petition. By virtue of the above judgment, Ext.P7 order of the learned Munsiff, Perumbavoor - which rejected the fifth defendant's request to examine a witness, as per a witness schedule - was set aside. The judgment under review permitted the fifth defendant (petitioner in the Original Petition above referred) to examine the review petitioner, who was the counsel appearing for the plaintiffs in the suit originally. The review petitioner/counsel seeks review of the said judgment, essentially on ground that he cannot be compelled to be a witness in view of the privilege under Section 126 of the Evidence Act.

..4..

2. Heard Sri.M.Balagovindan, learned counsel for the review petitioner and Sri.P.Thomas Geevarghese, learned counsel for the contesting 1st respondent.

3. Learned counsel for the review petitioner raised three grounds. The first is based on the privilege under Section 126 of the Evidence Act, which prohibits disclosure of any communication between the client and a lawyer. The second contention stems from Rule 27 of the Civil Rules of Practice, as per which, a vakalath is liable to be attested; and going by Section 68 of the Evidence Act, proof of a document which is required in law to be attested has to be adduced by examining atleast one of the attesting witnesses. Thus, according to the learned counsel, the proper course is to examine an attesting witness; and not to call the counsel for R.P.No.447 of 2024 ..5..

examination straight away. Thirdly, it was pointed out that the counsel, who is sought to be examined has now relinquished the vakalath, which fact is admitted in the Original Petition preferred by the 1st respondent herein. It is further stated in the Original Petition that, the proof to be adduced is by way of examining the attesting witnesses. In short, the submission of the learned counsel for the review petitioner is that, the attesting witnesses are to be examined first and thereafter, if, and only if, it is required, the counsel concerned can be examined.

4. In answer to the above submissions, learned counsel for the 1st respondent would submit that the protection under Section 126 is not available and the instant facts will be governed by the provisos to Section 126. The petitioner in the Original Petition (respondent herein and 5th defendant in the suit) would further urge that his R.P.No.447 of 2024 ..6..

contention is not one pertaining to execution of the vakalath, but with respect to the institution of the suit itself, by filing the plaint. Learned counsel would invite this Court's attention to the specific contention of the 5th defendant (petitioner in the Original Petition) in Ext.P2 written statement (produced along with the Original Petition), at paragraph no.3, which is extracted herebelow:

3) 4-ഉഉം 5-ഉഉം വവാദദികളവായദി പപേര് എഴഴുതദിയദിടട്ടുള്ളവർ അനനവായഉം ഫയൽ ചചെയട്ടുവവാൻ ഉപേപദശഉം ചകവാടഴുകഴുകപയവാ, അനനവായതദിൽ ഒപപ്പ് ഇടഴുകപയവാ ചചെയതദിടദിലല. 4-ഉഉം 5-ഉഉം വവാദദികളട്ടുചട ഒപപ്പ് വനവാജമവായദി ഇടപ്പ് അനനവായഉം പബവാധദിപദിച്ചതദിന് 6-ആഉം വവാദദി പപേരദിൽ കഴുന്നതഴുനവാട പപേവാലലീസ് crime രജദിസ്റ്റർ ചചെയതദിടട്ടുള്ളതവാണ. പമൽ നമ്പർ പകസദിചല 6-ആഉം വവാദദി 4-ഉഉം 5-ഉഉം വവാദദികൾക് എതദിചര ബഹഴു ഈ പകവാടതദിയദിൽ O.S.39/2018-ആഉം നമ്പർ ആയദി അനനവായഉം പബവാധദിപദിച്ചപ്പ് വദിചെവാരണയദിൽ ഇരദികഴുന്നതവാണ.

8-ആഉം വവാദദി മറദിയവാമ്മയഴുഉം അനനവായതദിൽ ഒപപ്പ് ചവച്ചദിടട്ടുള്ളതവായദി എനദികപ്പ് അറദിയദിലല.

5. Thus, according to the learned counsel, the dispute is with respect to the very institution of R.P.No.447 of 2024 ..7..

the plaint and also with respect to the signatures contained therein. The specific contention urged is that, plaintiffs 4 and 5 have not subscribed their hands to the plaint. Nor had they given any instruction to the counsel to institute a case on their behalf. The contention is that the 6th respondent has forged their signatures, in respect of which, a criminal case is pending against him. The 5th defendant in paragraph 3 of the written statement also apprehends that 8th respondent has also not subscribed her hands to the plaint. It was pointed out that, out of the nine plaintiffs, as many as four have either sworn to an affidavit or filed memo before the trial court, specifically indicating that they have not signed the subject plaint. The third contention raised by the learned counsel for the petitioner is that, when the suit itself is originated in fraud in the form of forgery, the 5th defendant has got a right to get the suit dismissed on that count itself, de hors R.P.No.447 of 2024 ..8..

and independent of the merits of the matter, wherefore, the evidence sought to be adduced is material.

6. Having heard the learned counsel for the respective parties, this Court finds no admissible cause to review the judgment dated 29.02.2024. As rightly pointed out by the learned counsel for the respondent, the issue in controversy is not one with respect to the execution of the vakalath. Instead, the specific contention, which is seen raised in the written statement, is with respect to the very institution of the suit itself and the filing of the plaint. Defendants 4 and 5 have not subscribed their hands to the plaint is the contention raised. Apprehension is seen expressed in the written statement that the 8 th plaintiff has also not subscribed her hands to the plaint. According to the 5th defendant (petitioner in the original petition), it is the 6th plaintiff who had R.P.No.447 of 2024 ..9..

forged the signatures of plaintiffs 4 and 5. From the affidavits sworn to by plaintiffs 4 and 5, the allegation is that, it is the 1st plaintiff who had forged their signature. In the above referred facts and circumstances, it cannot be held that the attesting witnesses to the vakalath has to be examined first and the counsel need be examined, if and only if, such a course is necessary. There is no attestation contemplated insofar as a plaint is concerned. By any stretch of imagination, the examination of the lawyer concerned cannot be held to be irrelevant or unnecessary, having regard to the peculiar facts circumstances and contentions raised in the suit. The fact that the counsel had relinquished the vakalath will not alter the above referred legal position.

7. This Court will now deal with a contention based on Section 126 of the Evidence Act. Primarily, it requires to be pointed out that the R.P.No.447 of 2024 ..10..

protection under Section 126 is available for the communication between a client and his lawyer. Here, the very status of some of the plaintiffs as clients of the review petitioner/lawyer itself is disputed, wherefore the protection under Section 126 cannot be pressed into service. As regards those among the plaintiffs, who dispute the factum of having engaged the review petitioner as their counsel, there is no admitted client - lawyer relationship. That apart, Section 126 of the Evidence Act cannot be propounded to prevent the examination of a lawyer. All what could be claimed based on Section 126 is that a question which may be put during the course of examination which is tabooed by Section 126 is not legally permissible and hence cannot be allowed. What is interdicted is only the disclosure of any communication between the client and a lawyer. Section 126 cannot be conceived as a complete shield from a lawyer being examined in a court of law, R.P.No.447 of 2024 ..11..

especially in the light of the instant facts and circumstances. The said contention is also therefore repelled.

8. In the circumstances, this review petition will stand dismissed.

9. Learned counsel for the review petitioner would, however, make a request to the effect that, since the counsel, who is sought to be examined, is aged 78 years, he may be examined by a Commission and a date may also be fixed in advance for the same. The first relief is hereby granted and the petitioner in the Original Petition/5th defendant is directed to take out a Commission to examine the review petitioner. The date for examination will be fixed by the trial court and the same will be informed in advance to the said counsel. The suit will be disposed of untrammelled by any of the observations contained in this R.P.No.447 of 2024 ..12..

order, or for that matter, in the judgment rendered in the Original Petition.

Sd/-

C. JAYACHANDRAN JUDGE 08/01/24 TR R.P.No.447 of 2024 ..13..

APPENDIX OF RP 447/2024 PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE PLAINT IN O.S. 233/2017 BEFORE THE MUNSIFF COURT, PERUMBAVOOR DATED 27/06/2017 Annexure 2 TRUE COPY OF THE WRITTEN STATEMENT OF THE 5TH DEFENDANT IN O.S. 233/2017 OF THE MUNSIFF'S COURT, PERUMBAVOOR DATED 23/09/2019 Annexure 3 TRUE COPY OF THE SUMMONS DATED 15/03/2024, PETITIONER RECEIVED A SUMMONS FROM THE MUNSIFF COURT, PERUMBAVOOR DATED 21/03/2024 Annexure 4 TRUE COPY OF THE DEFENDANT'S DEPOSITION DATED 5.7.23 Annexure 5 TRUE COPY OF THE ORDER IN I.A.NO.19/2023 IN O.S. 233 OF 2017 OF THE MUNSIFF'S COURT, PERUMBAVOOR DATED 24/01/2024