1993 (10) TMI 375 - HC - Indian Laws

Summary

Issues:
- Can an Advocate withdraw from a civil suit and appear as a witness after accepting the brief and conducting the matter?
- Whether an Advocate can be permitted to be a witness in a case where he is acting as an Advocate?
- Interpretation of legal provisions and rules regarding the Advocate's role as a witness in a case.

Analysis:
1. The judgment revolves around the question of whether an Advocate who has accepted a brief and conducted a civil suit can subsequently withdraw and appear as a witness in the same case. The key issue is whether the Advocate, in this case, Advocate Vaishnav, can be allowed to switch roles from Advocate to witness after being aware of the material facts of the case.

2. The plaintiff alleged that a meeting took place on 30th December, 1991, where an oral agreement was reached regarding the sale of the suit property. The plaintiff's Advocate, Shri Vaishnav, was present at this meeting, and the plaintiff contended that a concluded contract was made. The defendants, however, denied the conclusive contract in their written statement.

3. Advocate Vaishnav, who represented the defendants, did not deny the meeting but contested the existence of a concluded contract. Subsequently, the defendants sought to examine Advocate Vaishnav as a witness, which was opposed by the plaintiff.

4. The trial court allowed the defendants' application to have Advocate Vaishnav as a witness, leading to the present civil revision application challenging this decision.

5. The applicant argued that Advocate Vaishnav, having knowledge of the material facts and being likely to be a material witness, should not be allowed to switch roles from Advocate to witness. The applicant relied on legal authorities emphasizing that an Advocate should not accept a brief if they are likely to be an important witness in the case.

6. The respondents contended that there is no legal bar for an Advocate to become a witness if they retire from the case as an Advocate. They cited legal provisions and rules allowing an Advocate to testify if necessary.

7. The court analyzed the facts and circumstances of the case and concluded that Advocate Vaishnav knew or had reason to believe that he would be an important witness. Therefore, once he chose to act as an Advocate, he could not later appear as a witness by retiring from the case.

8. Legal authorities were cited to support the position that an Advocate should not give evidence as a witness in a case where they are acting as an Advocate, unless they are a formal witness. The court highlighted the duty of an Advocate to act in good faith and avoid testifying for or against the party they represent.

9. The court set aside the trial court's decision and rejected the application to allow Advocate Vaishnav to be examined as a witness. The judgment emphasized that an Advocate's duty of good faith and trust prevents them from acting as both Advocate and witness in the same case, except under specific circumstances like being called as a Court witness or being a formal witness.

10. The revision was allowed, and the proceedings in the lower court were stayed to enable the respondents to approach the Supreme Court, if desired.