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K B. Poondacha & Ors v. K.D. Ganapathi and Anr
AIR 2011 SC 1353, 2011 AIR SCW 1737
Judges: G.S. Singhvi and Ashok Kumar Ganguly
Date of Decision: 22-02-2011
An application by the respondent to cite the name of advocate of appellant as witness was rejected by the trial court as no good reasons for what purpose he is citing him as a witness and examining in his favour was given. Respondent challenged the order in the High Court under Articles 226 and 227 of the Constitution and was set aside by simply observing that reasons are not required to be assigned to justify the summoning of a particular person as a witness. Aggrieved by the order of High court, appellants filed this appeal before the Hon’ble Court.
- Whether summon under the Order 16 Rule 1(1), (2) read with S. 151 was maintainable or not?
- Whether an indication for the purpose of issuing a summon is necessary?
At the outset, learned counsel for the appellant argued that the respondents were not entitled to cite and summon the advocate representing the appellants as no justification was given for doing so. In reply, learned counsel for the respondents submitted that the reason for citing name of the witnesses are not required at the stage of filing the list of witnesses.
After, deep analysis of the submissions made by the parties and scope of the High Court’s power under Articles 226 and 227 of the Constitution, Hon’ble Court has outlined that the High Court failed to exercise the principles and parameters laid down under Articles 226 and 227 qua an interlocutory against the order passed by the subordinate court, specifically with respect to the jurisdiction of court.
It is worth to draw attention to the nature of relationship of the lawyer and his client, which is solely founded on trust and confidence. A lawyer cannot pass on the confidential information to anyone else. It is his duty to fulfil all his obligations towards his client with care and act in good faith and under the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness and loyalty as he is a fiduciary of his client.
Thus, when court allowed the party to include the name of the advocate representing the other side as a witness, then the other party would be deprived of the services of his advocate. Therefore, it should be the prudent practise of discretion by the court to insist parties to briefly indicate the purpose of summoning the particular person as a witness to avoid any unscrupulous litigants.
From the above observation, it would be clear that application under the Order 16 Rule 1 (1), (2) of the CPC would not be maintainable. Hence, appeal was allowed and the order of trial court was restored.
Thus, the respondent was precluded from citing name of the advocate as witness of other party without assigning sufficient cause to avoid prolonged delay.
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