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
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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
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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.
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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
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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
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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
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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
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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
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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
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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,
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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
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order, or for that matter, in the judgment
rendered in the Original Petition.
Sd/-
C. JAYACHANDRAN
JUDGE
08/01/24
TR
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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
