It appears from the materials on record that, the examination of petitioner's lawyer as a witness in the present proceeding is meant for eliciting certain essential facts in disproof of allegations of fraud. The essential facts include the answers of the lawyer as to whether the client signed in her presence and she had explained to her the terms and conditions of the agreement before it was signed. The witness, in our opinion, cannot withhold such essential answers claiming privilege under Section 126 of the Act. Such information are very valuable for the decision of the matter in dispute before the Family court and can never be taken as offending the bar against disclosure of the professional communications saved by law. They do not have any bearing or relevance to the matters connected with the engagement of a lawyer for conduct of the litigation.
11. The impugned order of the lower court in I.A. 1833/2018 permitting examination of petitioner's lawyer cannot therefore, be said to suffer from any illegality warranting our interference. Same is the view that we take in respect of order on I.A. 1832/2018 also as we deem it just and proper to give the respondent one more opportunity to re-examine P.W. 1 with respect to the facts he had omitted during her former examination.
12. Learned counsel for the petitioner submitted that, if the courts tend to allow the parties to cite and examine the lawyer on the opposite side as witness, it would be very embarrassing and also demeaning to the practitioners of law. We are of the clear view that the courts have necessarily to avoid such embarrassment being caused to the lawyers and this could be ensured by permitting examination of lawyers only in cases where their testimony in court is absolutely essential and inevitable. The court shall be circumspect in summoning lawyers cited as witnesses, whether by their own clients or opposite parties, except when their examination is unavoidable. The request for examination should not be granted mechanically and for mere asking. If a particular matter or information could be effectively proved by other evidence, the courts could certainly decline to order examination of the lawyer to the extent possible. No hard and fast rule, however, could be laid in this respect and it is ultimately what a court informed by prudence and wisdom would decide in a particular case before it, depending on the facts and circumstances of each case.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP (FC) No. 228 of 2018
Decided On: 15.01.2019
Reshma Majeed Vs. Shameer Babu
Hon'ble Judges/Coram:
C.K. Abdul Rehim and T.V. Anilkumar, JJ.
Citation: AIR 2019 Kerala 89
