B. Venkataswami, J.
1. The question that arises for consideration in this revision is whether a Civil Court can determine the 'Vakalathnama' of an advocate on the ground that he is likely to be called as a witness on behalf of the party to the suit.
2. The above question has arisen in this way:
The plaintiff in O. S. No. 42/1969 on the file of the Civil Judge, Chitradurga, preferred an application, purporting to be under Section 151, Civil P. C. to the effect that the Advocate namely Mr. O. Veera Basappa who is appearing on behalf of the defendant in the suit, should be called upon to withdraw from the suit. The ground alleged is that the Advocate had participated in a 'Panchayathi' held in connection with the differences that had arisen regarding a portion of properties between the plaintiff on the one hand and the father of the defendant on the other. There were other panchayatdars too. As to what transpired at such 'Panchayati' and whether any decisions of a binding character were arrived at, the allegations are singularly vague.
3. This application was opposed by the learned Advocate concerned. He has averred with emphasis that the allegations in question were false and mala fide. The application came to be dismissed by the learned Civil Judge. Hence this revision.
4. Sri B. K. Ramachandra Rao, the learned counsel appearing in support of the petition, fairly enough, contented himself by taking the Court through the order under revision and inviting attention to certain decided cases, bearing on the question. I do not feel called upon to refer to them in any detail, and, in my view, the position emerging from them in so far as it relates to the question on hand, briefly summarised, will be as follows:--
5. Every litigant before a court of law has a right to engage the services of a counsel of his choice. A counsel, though in pursuit of a profession is an officer of the Court assisting in the administration of justice by it. He cannot be both a witness and counsel in one and the same suit. The court has the power to determine the 'Vakalatnama' of a counsel in case of misconduct on the part of such counsel or when his appearance in a suit is likely to embarrass a fair trial of such suit. Broadly speaking in cases where a counsel is also called upon to figure as a witness, the situation arising therefrom may be said to belong more properly to the sphere of professional etiquette, and a counsel in such cases is a better Judge of the manner in which his discretion ought to be exercised.
But, if he is a witness in regard to a material fact, and still persists in retaining both the capacities, that of a witness as well as counsel, his attitude may amount to misconduct, in which event, the Court can step in and remedy the situation by determining the 'Vakalatnama' in his favour.
There may be cases on the border lines. In such cases-, the court had to see whether the party, desiring such a result, is actuated by oblique motives of depriving the opponent of the services of a counsel of its choice. It is equally clear that it is not open to a counsel to withdraw or to a party to terminate services of its counsel without the leave of the Court. Generally speaking, it is only in exceptional circumstances that a counsel can be forbidden from appearing for any party. In this connection, one may usefully refer to certain observations in the following reports:
6. In Halsbury's Laws of England, Simonds Edition, Vol. 3, at p. 68, it is observed thus;
'A barrister should not act as counsel and witness in the same case; and he should not accept a retainer in a case in which he hag reason to believe 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 ought not to continue to appear as counsel if he can retire without jeopardising his client's interests.
In subsequent proceedings counsel can, if he chooses give evidence of what he has seen or said in court when engaged as counsel. If counsel is called as a witness by his client, he cannot, it seems, refuse to give evidence. Counsel should not give a proof of evidence of what occurred at a hearing in which he was professionally engaged.'
7. In re: C. S. Venkatachariar, AIR 1942 Mad 691 (SB), a Special Bench of the Madras High Court has observed at p. 692 of the report thus:
'A person who is appearing as counsel should not give evidence as a witness. If in the course of the proceedings it is discovered that he is in a position to give evidence and it is desirable that he should do so, his proper course is to retire from the case in his professional capacity.'
8. Turning now to the case on hand, what has been alleged is merely that the counsel had participated in a previous 'Panchayathi' in regard to the division of properties concerned in the present suit. There are no clear or specific allegations as regards the result of such deliberations. It is not also alleged whether any decision or conclusion of a binding nature was arrived at therein. It is only when such circumstances exist will it be reasonable to postulate that the fact concerned is of some materiality in the decision of the suit. The Counsel concerned has in clear terms denied the alleged 'Panchnyathi' and his participation therein. It is not also clearly indicated on behalf of the plaintiff that the counsel would he likely to be called as his witness.
Even when such a desire on the part of the plaintiff is made known, it would still be a matter for the court to exercise its discretion, which must and ought to be exercised only after taking into consideration the nature and relevance of the fact which is expected to be spoken to by the counsel and the bearing it may have on any material issue in such suit. If the fact to be spoken to is of materiality, it is then that it can be said that the court has exercised the discretion reasonably and properly, while calling upon the counsel to withdraw from the suit.
But, Sri B. K. Ramachandra Rao, in the course of his submission, referred to certain affidavits of the other 'Panchayatdars' and sought for permission to produce them. I do not think I will be justified in allowing such production at the stage of revision. Even if they are allowed to be produced, the question will still have to be considered in the light of the principles aforementioned. It is relevant to observe in this connection, that if a party makes a pretence of calling a counsel for the other party as a witness and ultimately fails to examine him as such, without any just or reasonable excuse, he will be rendering himself liable to the imposition of heavy and exemplary costs, as he will then have laid himself open to a charge of having prevented a counsel from pursuing his profession by a ruse.
9. For the above reasons, I am of the view that the petition is without merit and has to be dismissed. It is accordingly dismissed with costs.