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Code of Civil Procedure, 1908 – Order XVI, Rules 1 and 2 r/w s.151 – Partition suit – Defendants filed application for permission to file a list of witnesses, which included the name of the plaintiff’s Advocate – Trial Court granted the defendants the leave to file the list of witnesses but rejected their prayer for permission to cite the plaintiff’s advocate as a witness on ground that no reason therefor was assigned in the application – Justification of – Held: Justified – 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 insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness – In the instant case, the concerned advocate was engaged by the plaintiffs almost 11 years prior to the filing of application by the defendants – During this long interregnum, the defendants never objected to the appearance of the plaintiff’s advocate by pointing out that he was interested in the subject matter of the suit – The prayer made by the defendants for being allowed to cite the plaintiff’s advocate as a witness was not only misconceived but also mischievous ex-facie with an oblique motive of boarding him out of the case. Constitution of India, 1950 – Articles 226 and 227 – Interlocutory order passed by Subordinate Court – Challenge to – Exercise of powers under Arts. 226 and 227 – Scope – Held: In the instant case, the High Court totally ignored the principles and parameters laid down by this Court for exercise of power u/Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason. Advocates – Relationship between lawyer and his client – Duty imposed upon an Advocate – Discussed – Held: An Advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client – If an Advocate has reason to believe that he will be a witness in the case, he should not accept a brief or appear in the case – Principles of `uberrima fides’ – Bar Council of India Rules, 1975 – Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV. Appellant Nos.1 to 3 and one other person filed suit for partition and separate possession of 1/6th share each in the suit property and also for grant of a declaration that sale deed dated 10.7.1997 executed by appellant Nos.4 to 6 was not binding on them. Respondent Nos.1 and 2 filed written statement, and subsequently, also filed an application under Order XVI Rule 1(1) and (2) read with Section 151 C.P.C. supported by an affidavit of respondent No.1 for permission to file the list of witnesses, which included the name of `NRK’, the Advocate who had been representing the appellants in the suit from the very beginning. The trial Court partly allowed the application of respondent Nos.1 and 2 and granted them leave to file the list of witnesses but rejected their prayer for permission to cite `NRK’ as a witness on ground that no reason therefor was assigned in the application. The respondents challenged the order of the trial Court by filing a petition under Articles 226 and 227 of the Constitution insofar as their prayer for citing `NRK’ as a witness was rejected. The High Court allowed the petition and set aside the order of the trial Court holding that reasons were not required to be assigned to justify the summoning of a particular person as a witness. In the instant appeal, the questions arising for consideration were: 1) whether the High Court committed serious error by interfering with the order of the trial Court without recording a finding that the said order was vitiated due to want of jurisdiction or any patent legal infirmity in exercise of jurisdiction; and 2) 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 cannot 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. =Allowing the appeal, the Court HELD:1. The High Court totally ignored the principles and parameters laid down by this Court for exercise of power under Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason. [Para 10] [427-H; 428-A-B] Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675 and Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC 329 – relied on. 2.1. The relationship between a lawyer and his client 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. [Para 12] [428-F-G] 2.2. 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. Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV of the Rules, regulate the duty of an advocate to the client. An analysis of the above 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. [Paras 13, 14] [428-H; 429-A-B; H; 430-A] 2.3. If the prayer made by the respondents for being allowed to cite `NRK’ as a witness is critically scrutinized in the backdrop of the duties of an advocate towards his client, it is clear 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 `NRK’ 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 `NRK’ 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 Single Judge of the High Court ignored that the respondents had included the name of `NRK’ 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. [Para 15] [430-G-H; 431- A-D] 2.4. 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 insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness. The impugned order of the High Court 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. [Para 16] [431-E-H] Mange Ram v. Brij Mohan (1983) 4 SCC 36 and V. C. Rangadurai v. D. Gopalan (1979) 1 SCC 308 – relied on. Case Law Reference: (2010) 8 SCC 329 relied on Para 6, 9 (1983) 4 SCC 36 relied on Para 6, 11 (2003) 6 SCC 675 relied on Para 7, 8 (1979) 1 SCC 308 relied on Para 14 CIVIL APPELLLATE JURISDICTION : Civil Appeal No. 2015 of 2011. From the Judgment & Order dated 24.2.2010 of the High Court of Karnataka at Bangalore in W.P. No. 2610 of 2007 (GM-CPC). Krian Suri for the Appellants. S.N. Bhat for the Respondents.

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REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s).2015 OF 2011
(Arising out of SLP(C)No.20821/2010)

KOKKANDA B. POONDACHA AND OTHERS Appellant(s)
VERSUS

K.D. GANAPATHI AND ANOTHER Respondent(s)
J U D G M E N T

Leave granted.

Whether the respondents (defendant Nos.5 and 6 in

the suit filed by the appellants), could cite the advocate

representing the appellants 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) without giving an iota of

indication about the purpose of summoning him in future is

the question which arises for consideration in this appeal

filed against order dated 24.02.2010 passed by the learned

Single Judge of the Karnataka High Court whereby he set

aside the order passed by the trial Court partly dismissing

the application of the respondents.
2

Appellant Nos.1 to 3 and one Parvathy filed suit,

which came to be registered as O.S. No.75 of 1996, for

partition and separate possession of 1/6th share each in the

suit property and also for grant of a declaration that sale

deed dated 10.7.1997 executed by defendant Nos.2 to 4, who

were, later on, transposed as plaintiff Nos.5 to 7

(appellant Nos.4 to 6 herein), was not binding on them.

Defendant Nos.5 to 7 (including respondent Nos.1 and 2

herein) filed written statement on 19.2.1998. Respondent

Nos.1 and 2 filed additional written statement on 9.8.2002.

After two years and seven months, they filed an application

dated 11.3.2005 under Order XVI Rule 1 (1) and (2) read with

Section 151 C.P.C. supported by an affidavit of respondent

No.1 for permission to file the list of witnesses, which

included the name of Shri N. Ravindranath Kamath, Advocate,

who was representing the appellants in the suit from the

very beginning.

The trial Court partly allowed the application of

respondent Nos.1 and 2 and granted leave to them to file the

list of witnesses but rejected their prayer for permission

to cite Shri N. Ravindranath Kamath as witness No.1. The

reasons assigned by the trial Court for partially declining

the prayer of respondent Nos.1 and 2 are extracted below:

“………………….While citing advocate of
the opposite party as a witness, the defendants 3
3

and 4 ought to have given reason for what purpose
they are citing him as a witness and examining him
in their favour. Once the advocate for the
opposite party is cited as a witness in the list,
the opposite party losses precious service of his
advocate. In that circumstances, the party will
suffer. Under the circumstances, so as to know
for what purpose the defendant no.2 and 3 are
citing and examining the N.R. Kamath advocate for
the plaintiff in their favour have to assign
reason. The Court has to very cautious and
careful while considering such an aspect of the
matter of examining and citing the advocate for
the opposite party in their favour. The Court has
to determine as to whether the evidence of said
advocate is material for the decision of the case
or not? Unless defendant no.2 and 3 assigned
reason in the application or in the affidavit as
to why they are citing the advocate for the
opposite party and examining in their favour, the
application filed by defendant no.2 and 3 is not
maintainable and the said application is not
sustainable under law. In the above said
Judgment, in para 2, it is clearly held that, “but
appellants then filed a petition seeking
permission to cite the advocate of the respondents
as a witness”. But herein this case, the
defendant no.2 and 3 are not seeking permission to
cite the advocate for the plaintiff as a witness.
Defendant no.2 and 3 not only have to seek
permission of this Court to cite the advocate for
the Plaintiff as a witness, but also he has to
give good reasons for what purpose he is citing
him as a witness and examining in his favour.
Without assigning any reasons and without seeking
permission to cite the advocate for the Plaintiff
as a witness in the witness list, application to
that extent is not tenable and same is liable to
be dismissed to that extent.”

The respondents challenged the order of the trial

Court by filing a petition under Articles 226 and 227 of the

Constitution insofar as their prayer for citing Shri N.

Ravindranath Kamath as a witness was rejected. The learned
4

Single Judge allowed the petition and set aside the order of

the trial Court by simply observing that reasons are not

required to be assigned to justify the summoning of a

particular person as a witness.

Mrs. Kiran Suri, learned counsel for the

appellants relied upon the judgment of this Court in Shalini

Shyam Shetty vs. Rajendra Shankar Patil (2010) 8 SCC 329 and

argued that the order under challenge is liable to be set

aside because the High Court committed serious error by

interfering with the order of the trial Court without

recording a finding that the said order is vitiated due to

want of jurisdiction or any patent legal infirmity in the

exercise of jurisdiction and that refusal of the trial Court

to permit the respondents to cite Shri N. Ravindranath

Kamath as a witness had prejudiced their cause. She further

argued that the respondents are not entitled to cite and

summon as a witness the advocate representing the appellants

because in the application filed by them, no justification

was offered for doing so. In support of this argument, Mrs.

Suri relied upon the judgment of this Court in Mange Ram vs.

Brij Mohan (1983) 4 SCC 36.

Shri S.N. Bhatt, learned counsel for the

respondents argued that even though his clients had filed

application belatedly, the trial Court was not justified in
5

declining their prayer for citing Shri N. Ravindranath

Kamath as a witness merely because he was representing the

appellants. Learned counsel submitted that at the stage of

filing the list of witnesses, the plaintiffs or for that

reason the defendants are not required to disclose the

nature of the evidence to be given by the particular witness

or its relevance to the subject matter of the suit etc. and

the trial Court had grossly erred in not granting leave to

the respondents to cite Shri N. Ravindranath Kamath as one

of their witnesses. Shri Bhatt relied upon the judgment in

Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675

and argued that even after amendment of Section 115, C.P.C.,

the High Court can, in exercise of supervisory power under

Article 227, correct the error of jurisdiction committed by

the Subordinate Court.

We have considered the respective submissions. We

shall first consider the question whether the High Court

could interfere with the order of the trial Court without

considering the question whether the said order was vitiated

due to want of jurisdiction or the trial Court had exceeded

its jurisdiction in deciding the application of the

respondents and the order passed by it has resulted in

failure of justice. In Surya Dev Rai’s case (supra), the

two Judge Bench, after detailed analysis of the various
6

precedents on the scope of the High Court’s powers under

Articles 226 and 227 of the Constitution culled out nine

propositions including the following:-

“(2) Interlocutory orders, passed by the courts
subordinate to the High Court, against which
remedy of revision has been excluded by CPC
Amendment Act 46 of 1999 are nevertheless open to
challenge in, and continue to be subject to,
certiorari and supervisory jurisdiction of the
High Court.

(3) Certiorari, under Article 226 of the
Constitution, is issued for correcting gross
errors of jurisdiction i.e. when a subordinate
court is found to have acted (i) without
jurisdiction – by assuming jurisdiction where
there exists none, or (ii) in excess of its
jurisdiction – by overstepping or crossing the
limits of jurisdiction, or (iii) acting in
flagrant disregard of law or the rules of
procedure or acting in violation of principles of
natural justice where there is no procedure
specified, and thereby occasioning failure of
justice.

(4) Supervisory jurisdiction under Article 227 of
the Constitution is exercised for keeping the
subordinate courts within the bounds of their
jurisdiction. When the subordinate Court has
assumed a jurisdiction which it does not have or
has failed to exercise a jurisdiction which it
does have or the jurisdiction though available is
being exercised by the Court in a manner not
permitted by law and failure of justice or grave
injustice has occasioned thereby, the High Court
may step in to exercise its supervisory
jurisdiction.

(5) Be it a writ of certiorari or the exercise of
supervisory jurisdiction, none is available to
correct mere errors of fact or of law unless the
following requirements are satisfied: (I) the
error is manifest and apparent on the face of the
proceedings such as when it is based on clear
ignorance or utter disregard of the provisions of
7

law, and (ii) a grave injustice or gross failure
of justice has occasioned thereby.”

In Shalini Shyam Shetty vs. Rajendra Shankar Patil

(supra), the Court again examined the scope of the High

Court’s power under Article 227 of the Constitution and laid

down the following proposition:

“Article 227 can be invoked by the High Court
suo motu as a custodian of justice. An improper
and a frequent exercise of this power will be
counterproductive and will divest this
extraordinary power of its strength and vitality.
The power is discretionary and has to be
exercised very sparingly on equitable principle.
This reserve and exceptional power of judicial
intervention is not to be exercised just for
grant of relief in individual cases but should be
directed for promotion of public confidence in
the administration in the larger public interest
whereas Article 226 is meant for protection of
individual grievances. Therefore, the power under
Article 227 may be unfettered but its exercise is
subject to high degree of judicial discipline.
The object of superintendence under Article 227,
both administrative and judicial, is to maintain
efficiency, smooth and orderly functioning of the
entire machinery of justice in such a way as it
does not bring it into any disrepute. The power
of interference under Article 227 is to be kept
to the minimum to ensure that the wheel of
justice does not come to a halt and the fountain
of justice remains pure and unpolluted in order
to maintain public confidence in the functioning
of the tribunals and courts subordinate to the
High Court.”

The learned Single Judge of the High Court totally

ignored the principles and parameters laid down by this

Court for exercise of power under Articles 226 and 227 of

the Constitution qua an interlocutory order passed by the
8

Subordinate Court and set aside the order of the trial

Court without assigning any tangible reason.

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 cannot 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.”

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
9

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
10

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.”

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 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 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
11

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.”

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
12

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
13

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.

……………………J.
(G.S. SINGHVI)

……………………J.
(ASOK KUMAR GANGULY)
NEW DELHI,
FEBRUARY 22, 2011.

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