Kokkanda B. Poondacha And Ors vs K.D. Ganapathi And Anr

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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.