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Sardar Jasbir Singh Vs. Malik MukhbaIn Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 42 of 1968
Judge
Reported in5(1969)DLT418
ActsCode of Civil Procedure (CPC), 1908 - Sections 51
AppellantSardar Jasbir Singh
RespondentMalik MukhbaIn Singh
Advocates: Harish Chandra,; S.C. Dhanda and; D.R. Malhotra, Advs
Cases ReferredAlt India Reporter Ltd. v. G. D. Moghe
Excerpt:
.....of an advocate from a case--exercise of--to be exercised with reserve and caution ; that the inherent power to exclude an advocate from appearing, if the court comes to the conclusion that the trial would be embarrassed by such appearances is a part of regulation of the proceedings in court and nto an exercise of disciplinary jurisdiction over an advocate.; that the exercise of such power calls for a great reserve and caution as it is likely to be misused.; during the course of the judgment hon'ble mr justice kapur made the following pertinent observations :--; 'in the high traditions of the bar, apart from the rules of law and conduct, it is desirable that an advocate placed in a situation like this, should voluntarily offer to withdraw and, in fact should withdraw, from the..........has relied on alt india reporter ltd. v. g. d. moghe, as authorising a court in exercise of its inherent power to direct withdrawal of a counsel, from a case if the court comes to the conclusion that withdrawal is conducive to the proper trial. the learned counsel for the petitioner principally relied on chenna reddi vena reddi and another v. chillakwu rama chandra reddi and another, (andhra pradesh high court). in that case an advocate was prohibited from appearing on behalf of one of the petitioners. mohammed mirza, j. held that- 'i think the contention of the learned counsel is justified. sections 30 and 32 under which the learned magistrate is purported to have acted are nto applicable and the court has no power to prohibit the appearance of any advocate under the said sections of.....
Judgment:

S.K. Kapur, J.

(1) This is a petition under Article 227 of the Constitution directed against an order of the 1t Additional Rent Controller, Delhi, dated 5th March, 1968, requiring the petitioner's counsel to withdraw from the ejectment proceedings pending against the petitioner. The view that I am taking of the matter renders it unnecessary to state the facts very elaborately.

(2) Malik Mukhbain Singh, respondent herein, (hereinafter referred to as 'the landlord'), filed a petition for ejectment against the petitioner, which is pending in the Court of the 1st Additional Rent Controller, Delhi. The petitioner was, and is being, represented by Sardar Janak Singh, Advocate. The Advocate, when called upon to admit or deny certain documents, admitted some but denied the rest. The landlord then made an application that the Advocate be examined as a witness. It is the claim of the landlord that before doing so he even issued interrogatories to the petitioner to admit or deny those documents but the interrogatories were nto answered. Having failed to secure the admission and/or denial of the documents, which consist of pleadings and depositions in suits filed by the petitioner against his tenants, the landlord filed the application for examination of the Advocate as a witness. It appeals that at least one of the grounds adduced by the landlord in seeking ejectment of the petitioner is the personal bona fide requirement of the premises and the landlord wanted to prove certain depositions and pleadings in suits filed by the petitioner against his own tenants in in another building. Order dated 17th October, 1967, passed by the 1st Additional Rent Controller, records that :-

'I was reluctant to grant this prayer (prayer to examine the Advocate as a witness) but Shri Janak Singh Advocate, who is representing respondent has stated that petitioner may if he so likes examine him as witness. Under the circumstances I allow the application and permit petitioner to examine Shri Janak Singh as witness as documents to be proved from his statements are quite relevant in the case.'

(3) A faint suggestion was made on behalf of the petitioner that the depositions and pleadings being public documents could be proved by producing certified copies. That is nto a matter which calls for decision in this petition for the fact remains that the Advocate did appear as a witness. Moreover, it is doubtful whether all those documents could be proved by producing certified copies. It is in these circumstances that the petitioner has impugned the order of the 1st Additional Rent Controller, Delhi, dated 5th March, 1968, and he says that the order deprives the petitioner of the services of the Advocate in whom he has a great faith and confidence. The 1st Additional Rent Controller has relied on Alt India Reporter Ltd. v. G. D. Moghe, as authorising a Court in exercise of its inherent power to direct withdrawal of a counsel, from a case if the Court comes to the conclusion that withdrawal is conducive to the proper trial. The learned counsel for the petitioner principally relied on Chenna Reddi Vena Reddi and another v. Chillakwu Rama Chandra Reddi and another, (Andhra Pradesh High Court). In that case an Advocate was prohibited from appearing on behalf of one of the petitioners. Mohammed Mirza, J. held that-

'I think the contention of the learned counsel is justified. Sections 30 and 32 under which the learned Magistrate is purported to have acted are nto applicable and the Court has no power to prohibit the appearance of any Advocate under the said sections of the Advocates Act. The Bar Council is an autonomous body and section 7 of the said Act makes it clear that the Bar Council constituted under the Act shall lay down standards of professional conduct and etiquettes for Advocates and, thereforee, the Court was nto justified in exercising its inherent powers.'

(4) The learned counsel for the petitioner contended that- (1) no Court has any inherent power to deprive a party of his Advocate; (2) in any case, such power, even if it , existed, stands excluded after the enactment of the Advocates Act, 1961 ; (3) The 1st Additional Rent Controller is net a Court and. thereforee, he had no inherent power in exercising of which an Advocate could be excluded from appearing in a case.

(5) Elaborate arguments were addressed on both sides on these questions Though I am nto expressing any final opinion regarding the impact of the Advocates Act, 1931, on the powers of the Court to exclude a counsel, yet I may say that the inherent power to exclude an Advocate from appearing, if the Court comes to the conclusion that the trial would be embarrassed by such appearances, is a part of regulation of the proceedings in Court and nto an exercise of disciplinary jurisdiction. over an Advocate. It is ture that a party to litigation is entitled to select an Advocate in whom he has faith and confidence and the other party cannto destroy that right or fetter that choice by serving a subpoena on the Advocate as a witness but that would be a matter touching on the merits of each individual case. Be that as it may, in the decision of the Nagpur High Court, on which considerable reliance has been placed by the learned counsel for the respondent and which decision concedes power in favor of the Court to exercise such jurisdiction, it was observed that this power should nto be lightly exercised and should be exercised only when the Court is of the opinion that withdrawal of a counsel will be conducive to the proper trial. The fact that the Advocate appeared as a witness and touched on the merit- of the case also in his statement but that, in the circumstances of this case and by itself, was nto sufficient for directing the Advocate to withdraw. Even if it be assumed that the Court has such a power and that power vests in the Rent Controller as well, which point I am nto deciding, the exercise of power calls for a great reserve and ca.ution as it is likely to be misused. I can think of some cases in which there is a bulk of evidence and if in such cases the Court feels that by reason of the conflict between Advocate's duty and interest the advocate may nto be able to render proper assistance, the Court may (of Course if it has such a power) direct withdrawal of the counsel. This is nto a case of that type. The Advocate's statement is a short one and even if it be assumed that the Advocate will nto be in a proper position to refer to that statement in support of his client's plea, the other side will, and in any case should, find no embarrassment in criticising that statement. The mere fact that the Court may be called upon to believe or disbelieve that statement, which is a short one, should also cause no embarrassment to the trial. If at all, it may prejudice the petitioner who is himself anxious to retain the services of the Advocate. I am nto unmindful of the fact that it would be an unpleasant duty for a Judge to perform. Judges are neither angels nor impersonal calculating machines and when faced with such duty there may be an element of embarrassment. At the same time, that is a function entrusted to the Judges and, I think, the function must be performed fearlessly and without any embarrassment. If a Judge comes to a conclusion that a statement of an Advocate should nto be accepted .there should be no impediment in his way and I am sure there would be none in the mind of the 1st Additional Rent Controller. Having regard to the circumstances of this case, thereforee, I am of the opinion that the 1st Additional Rent Controller should nto have directed the Advocate to withdraw. I cannto help expressing a feeling of dissatisfaction that an Advocate should insist on appearing for a party in the face of such circumstances. I do nto know whether the Advocate will still insist on appearing but the fact that he did appear and this petition had to be filed in this Court leaves no doubt in my mind that the Advocate has been insistent on representing the petitioner. In the high traditions of the bar, apart from the rules of law and conduct, it is desirable that an Advocate placed in a situation like this, should voluntarily offer to withdraw and, in fact should withdraw, from the case. The Courts have consistently disapproved the practice of a counsel continuing in a case if he is a material witness and I express my respectful agreement with the catena of authorities on this subject. His appearance .for the petitioner is also likely to prejudice the case of the petitioner as an Advocate can never be in a position to properly place his own statement before the Court in support of his client is case. If an Advocate is a material witness, prejudice to his client must necessarily result. I do nto expect the members of the bar to disregard high traditions to which the bar has adhered in the face of all difficulties and to which it is expected to adhere for all times to come. I, thereforee, need nto decide the larger question, namely, whether the Rent Controller is a Court and has inherent power which it has exercised.

(6) With these observations I allow the petition and quash the order of the 1st Additional Rent Controller, Delhi, dated 5th March, 1968, but with no order as to costs.


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