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Peary Mohun Das Vs. Donald Weston and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in9Ind.Cas.509
AppellantPeary Mohun Das
RespondentDonald Weston and ors.
Cases ReferredSullivan v. Norton
Excerpt:
cross-examination - question reflecting on third party--jurisdiction of court to report--evidence act (i of 1872), sections 146 and 150--counsel, instructions to--privileged document--full bench--jurisdiction to direct or hold inquiry about conduct of counsel--division bench, whether has got power. - orderfletcher, j.1. yesterday morning, during the cross-examination of a witness, mr. k.b. dutt put to the witness that a certain document which he (mr. k.b. dutt) alleges to be a forgery was put forward by the witness in conspiracy with the defendants weston and the moulvie and mr. hadrill, the attorney who is instructing the counsel for the defendants in this case.2. at the time the question was put to the witness no 'objection was taken to it but after the mid-day adjournment an application was made to me by the advocate general and mr. norton, on behalf of mr. hadrill, asking (a) that mr. k.b. dutt should be called upon to state whether he put the question above referred to on instructions and if so what those instructions were, (b) that i should direct an inquiry into the conduct of.....
Judgment:
ORDER

Fletcher, J.

1. Yesterday morning, during the cross-examination of a witness, Mr. K.B. Dutt put to the witness that a certain document which he (Mr. K.B. Dutt) alleges to be a forgery was put forward by the witness in conspiracy with the defendants Weston and the Moulvie and Mr. Hadrill, the Attorney who is instructing the Counsel for the defendants in this case.

2. At the time the question was put to the witness no 'objection was taken to it but after the mid-day adjournment an application was made to me by the Advocate General and Mr. Norton, on behalf of Mr. Hadrill, asking (a) that Mr. K.B. Dutt should be called upon to state whether he put the question above referred to on instructions and if so what those instructions were, (b) that I should direct an inquiry into the conduct of Mr. Hadrill and Mr. K.B. Dutt. On the first of these grounds it appears to me, as no objection was raised to the question at the time it was put and as the question reflects not on the witness but on a third party, Section 150 of the Evidence Act, which must be referred back to Section 146, can have no application. Sitting here as a Single Judge on the original side, ray jurisdiction there ends.

3. On the second ground of the application, viz., that I should direct an inquiry on the ground that Mr. K.B. Dutt has exceeded the license given to Counsel so that an enquiry should be held into the conduct of Mr. Hadrill, it has been decided in the Courts in India and the practice is, that applications of this nature must be made to the Court itself and a rule, if granted, must be heard by a Full Bench. In support of this statement it is only necessary for me to refer to two authorities. The first authority is a case Sullivan v. Norton 10 M. 28 which was a petition presented by Mr. Sullivan to the Madras High Court under Clause 10 of the Letters Patent (which relates to the suspension and removal of Advocates and Attorneys) against an Advocate in respect of certain statements made by him as Counsel. In that case the statements made by the Advocate were of the gravest nature. The Advocate's answer was that he acted upon instructions which contention was upheld by the Court. It does not appear from the report whether the Court called upon the Advocate to produce his instructions but apparently it did not do so. The instructions to Counsel are a privileged document belonging to the client and Counsel is prohibited from disclosing what is contained in those instructions as being of a confidential nature.

4. But the case above cited establishes clearly that the question as to whether a Counsel has exceeded the license given to him for the purpose of conducting his client's case is one that can only be dealt with by a Full Bench. The other case that I would refer to is the case of Bhaishankar v. Wadia 2 Bom. L.R. 3. That was the case of an Attorney who complained of the conduct of an Advocate regarding certain references that the Advocate had made relating to him during the conduct of a case in Court and is, therefore, very similar to the present. But the rule in that case was issued by the Court itself and the inquiry held before a Full Bench.

5. These two cases establish beyond doubt that, sitting here on the original side, I have no jurisdiction either to direct or hold the inquiry asked for.

6. The only remedy that I am aware of that Mr. Hadrill has in this case is to go into the witness-box and deny the imputations that have been made against him.

7. Mr. Norton has referred me to a statement in Pulleyn on Attorneys as to the powers of the Judge trying a case in England. But in the case of Sullivan v. Norton 10 M. 28 the question was definitely raised as to whether even a Division Bench of the High Court could issue a rule of this nature. The powers of the Judges of the High Courts in India are governed by the Letters Patent, the Rules of the Court and the orders passed by the Chief Justice under the provisions of the Indian High Courts Act, under none of these have I the power to direct or hold the inquiry now asked for. I, therefore, refuse the application.


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