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State Bank of India Vs. Mrs. J.K. Sohan Singh - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. Petn. No. 56 of 1962
Reported inAIR1963P& H27
ActsCode of Civil Procedure (CPC) , 1908 - Order 11, Rule 1 - Order 26, Rule 5; Evidence Act - Sections 92 and 126; Transfer of Property Act - Sections 55(4)
AppellantState Bank of India
RespondentMrs. J.K. Sohan Singh
Appellant Advocate S.K. Kapur,; N.N. Goswami and; T. Barral, Advs.
Respondent Advocate H.R. Sodhi, Adv.
DispositionPetition allowed
Cases ReferredAnderson v. Bank of British Columbia
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........which are objected on behalf of the plaintiff it was asked whether mr. deeks had admitted to his counsel mr. mullick that the 'charge on the property sold had been excluded by a mutual understanding between the vendor mr. deeks aforesaid and mrs. sohan singh defendant'. in the 5th and the last question, it has been asked whether mr. mullick 'talked about the said admission to sardar sohan singh when he visited lahore in the year 1948.' 4. it appears that the letter of request for the examination of mr. mullick was not issued for a long time and it was so pointed out to the court in the application submitted on behalf of the plaintiff on 16th of august, 1961. an order was passed by the senior subordinate judge on 12th of september, 1961, to the effect that the commission had been issued.....

Shamsher Bahadur, J.

1. This is a rule directed against the order of the Senior Subordinate Judge, Simla, passed on 12th of September, 1961, and the question of law that arises for determination is whether the Court had any warrant to issue a commission for examination on interrogatories of Mr. M. S. K. Mullick, an Advocate, now practising in West Pakistan.

2. By a sale deed executed on 29th of September, 1947, the property known as 'Villette' in Simla was sold to the respondent Mrs. J. K. Sohan Singh, for a sum of Rs. 75,000/- by William Gordon Deeks. It was recited in the document that a sum of Rs. 25,000/- had already been paid by a cheque drawn on Lloyds Bank Limited Simla on 22nd of September, 1947, and another sum ot Rs. 25,000/- was paid before the Sub-Registrar on the day when the deed was executed, again by a cheque on Lloyds Bank. The balance of Rs. 25,000/- was to be payable by the vendee to the vendor 'as soon as possble but at a time when the former was in a position to make the payment.....' The property was immediatelytaken possession of by the vendee and admittedly the balance has not been paid. After the sale, the vendor settled in Natal, South Africa, and after his death the present suit was brought by the State Bank of India, Simla, one of the executors of the vendor's estate, on the strength of the letters of administration granted to it on 18th of February, 1959. In the suit it was claimed that a sum of Rs. 42,250/- was payable by the respondent as principal and interest, but the plaintiff gave up of its own accord a sum of Rs. 8,250/- and the present suit was brought on 21st of September, 1959, for recovery of Rs. 34,000/- Rs. 25000/- as principal and Rs. 9,000/-as interest. A charge is claimed on the property known as 'Villette* Simla East, as the vendee had taken possession of it without making the full payment. It may be stated at once that there is no mention of this charge in the sale deed itself.

3. in the written statement of the defendant filed on 22nd of November, 1959, various pleas of a technical nature were raised and it was asserted that the defendant's husband had been duped into the bargain. As regards the charge on the property, it was averred in paragraph 4 of the written statement that the counsel for the vendor wrote to the counsel for the vendee for the creation of charge on the property on ths ground that relevant term about payment of the balance of Rs. 25,000/- was vague and indefinite. The vendee, however, declined to accede to this request and 'by an Implied agreement the alleged charge sought to be enforced was thus excluded'. It was pleaded that no question of enforcement of any charge could possibly arise. The issues which were framed on 1st of April, 1960 were subsequently amended on 17th of May, 1950. Later, the Court on the request of the vendee made an order for the issue of a commission to Mr. M. S. K. Mullick, Advocate, Lahore, who acted as a counsel for the vendor W. G. Deeks, who had gone to live at Lahore for some time after the partition. In all, five questions were put in the interrogatories filed on behalf of the defendant's counsel. The second question related to the issue ot a legal notice by Mr. Mullick to Mrs. Soban Singh in August, 1948, on the instructions of Mr. Deeks. This notice which was sent on 23rd of August, 1948 was admitted by the counsel. In the next questions which are objected on behalf of the Plaintiff it was asked whether Mr. Deeks had admitted to his counsel Mr. Mullick that the 'charge on the property sold had been excluded by a mutual understanding between the vendor Mr. Deeks aforesaid and Mrs. Sohan Singh defendant'. In the 5th and the last question, it has been asked whether Mr. Mullick 'talked about the said admission to Sardar Sohan Singh when he visited Lahore in the year 1948.'

4. it appears that the letter of request for the examination of Mr. Mullick was not issued for a long time and it was so pointed out to the Court in the application submitted on behalf of the plaintiff on 16th of August, 1961. An order was passed by the Senior Subordinate Judge on 12th of September, 1961, to the effect that the commission had been issued but had not come back executed. Certain objections were raised regarding the issue of the commission, and these were summarily dismissed as they were in its view of a ''technical nature'. The objections which were summarily put away as being technical went to the root of the question whether the commission could at all have been issued. It was pointed out at the very outset in the application of 16th of August, 1961 that as had been objected once before, the vital questions for Mr. Mullick could not be put to him under Sections 92 and 126 of Indian Evidence Act. These are the two questions to which objections had been taken.

It is plain that Mr. Munich who was acting as a counsel of Mr. Deeks could not be asked questions in regard to matters in the nature of communications between him and his client. Questions Nos. 4 and 5 of the interrogatories concern an admission which is said to have been made by Mr. Deeks to his counsel Mr. Mullick regarding a term which is not contained in the sale deed and cannot ordinarily be received in evidence under Section 92 of the Indian Evidence Act which places an interdict on the admissibility of parole evidence in variance or in contradiction of the terms of a registered document in writing. In any event, the admission relates to a professional communication about which no evidence can be led under Section 126 of the Indian Evidence Act which says that no advocate shall at any lime be permitted without his client's express consent to disclose any communication made to him in the course and for the purpose of his employment as such. Such an obligation subsists even after the employment has ceased. Mr. Deeks is now dead and there is no question of his express consent to the disclosure of the admission which the interrogatories seek to draw from Mr. Mullick.

It has been ruled in Harishankar Jebhai v. Narayan Karsan ILR 18 Bom 260 by a Division Bench of Sir Charles Sargent Chief Justice and Telang J. at page 271 that the law in India as contained in Section 126 of the Evidence Act appears to be the same as the law in England which has been established by many decisions through a long course of years. It was held by the House of Lords in Bullivant v. Attorney General for Victoria, (1901) AC 196, that the privileged nature of the communication betwean solicitor and client does not terminate with the death of the latter. The obligation to keep the communication confidential subsists even after the death of the client and the solicitor cannot be called upon to disclose it. The nature of this privilege was expounded in Minet v. Morgan, (1873) 8 Ch A 361, in which the basis' of the rule as stated by Lord Cottenham was expressed thus :-

'The true principle on which that case proceeds, is, that parties are to be at liberty to communicate with their professional advisers with respect to matters which become the subject of litigation, without restriction, and without the liability of being afterwards called upon to produce or discover what they shall so have communicated.'

As stated by Jessel, M. R., in Anderson v. Bank of British Columbia (1876) 2 Ch D 644, a client should be 'able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent) that he should be enabled properly to conduct hislitigation'. The explanation to Section 126 makes it plain that the obligation subsists even after the termination of the employment, and there can be no manner of doubt that Mr. Mullick in the present instance could not be called upon to give evidence about the communication of an alleged disclosure which his client made to him.

5. it is to be observed that the balance of Rs. 25,000/- became payable in the year 1947 by the vendee to the vendor. Fifteen years have now passed and it is contended that the respondent cannot 'be heard to say, as has been urged by Mr. Sodhi, that the liability could arise when and if the vendee was in a position to pay. The sum of Rs. 25,000/- was to be paid 'as soon as possible' and though some concession was made to the vendee to pay the sum when she was able to do so, it cannot be construed to be an indefinite postponement. I do not wish to say anything on the merits of these contentions in this petition which only raises the limited question whether the commission should at all have been issued.

6. it seems to me that the questions embedied in the interrogatories constitute evidence on points which are at variance with the pleas raised in paragraph 4 of the written statement. The case of the plaintiff is based on Sub-section (4) of Section 55 of the Transfer of Property-Act by which a seller is entitled to a charge upon the property where its ownership has passed to the buyer before payment of the full price. Though, of course, nothing is mentioned in the sale deed the' defendant seeks to place reliance on parole evidence of a lawyer who had been engaged by Mr. Deeks to claim payment of the balance from the vendee. Such evidence cannot be led opposed as it is to the general policy of law and the pleadings of the defendant in the case. In my opinion the Court exceeded its jurisdiction in issuing interrogatories to Mr. Mullick who is an Advocate in Pakistan.

7. I would accordingly allow this petition for revision, set aside the order made for the evidence on commission of Mr. Mullick and direct the trial Judge to proceed with the case expeditiously in accordance with law.The patties have been directed to appear before the trialJudge on 25th June, 1962. The costs will abide theevent.

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