Kabeer s/o P.M. Hameed v Nazrin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938** **OP (FC).No. 702 of 2016 (R)** **----------------------------** **(AGAINST THE ORDER DATED 3/9/2016 IN IA NO.1396/2015 IN OP NO.137/2010 OF THE FAMILY COURT, THIRUVANANTHAPURAM)** **PETITIONER(S)/RESPONDETN:** **------------------------** **KABEER S/O.P.M.HAMEED, AGED 44 YEARS, PADATHU HOUSE, MYTHRI NAGAR, P.O.PARALAM, THRISSUR TALUK, THRISSUR DISTRICT** **BY ADVS.SRI.M.PREMCHAND SRI.C.S.SUMESH** **RESPONDENT(S)/PETITIONER: -------------------------** **NAZRIN D/O.NIZAR, AGED 42 YEARS, HOUSE NO. 609, PRASANTH NAGAR, ULLOOR MEDICAL COLLEGE PO, THIRUVANANTHAPURAM DISTRICT 695011** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 0501-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No. 702 of 2016 (R) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 TRUE COPY OF THE OP.NO. 137/2010 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM** **EXHIBIT P2 TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER IN OP.NO. 137/2010 BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM** **EXHIBIT P3 TRUE COPY OF THE IA.NO. 1396/2015 IN OP.NO.137/2010** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 10.06.2016 IN OP(FC) 92/2016 OF THIS HON'BLE COURT** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 03.09.2016 IN IA.NO. 1396/2015 PASSED BY THE FAMILY COURT, THIRUVANANTHAPURAM** **EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT PETITION & WITNESS SCHEDULE LIST DATED 28.10.2016 SUBMITTED BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM IN OP.NO. 137/2010** **RESPONDENT(S)' EXHIBITS NIL** **-----------------------** ## **Rp** ## **//TRUE COPY//** **P.S. TO JUDGE** ## **A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.** =========================== OP(FC) No. 702 of 2016 ================== Dated this, the 5[th] day of January, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This original petition is filed challenging Ext.P5 by which an application filed by the petitioner herein for removing the counsel appearing on behalf of the respondent from representing the respondent has been rejected by the Family Court while dismissing IA No.1396/2015 in OP No.137/2010 as per order dated 3/9/2016. 2. The main contention urged by the petitioner was that in terms of Rule 6 of the Bar Council of India Rules, there is a prohibition for an Advocate to appear on behalf of a party to the _lis_ if any member thereof is related to the Advocate or comes within the relationships mentioned therein. Further, it is contended that the petitioner intends to examine the Advocate as a witness in the case and therefore the Advocate should not be permitted to appear on behalf of the respondent. OP(FC) No.702/16 -:2:- 3. The respondent objected to the above contentions and filed their objection inter alia contending that there is no reason warranting change of lawyer as contended by the petitioner. 4. The Family Court after elaborately considering the matter observed that the facts involved in the case do not require examining the Advocate as a witness and further it was held that no valid grounds are established to show that the counsel appearing for the respondent is a material witness to prove the contentions raised in the written statement. 5. Learned counsel for the petitioner however places reliance upon the written statement filed in the matter to contend that the Advocate was involved in an issue relating to the matrimonial dispute. Para 11 is pointed out to indicate that the counsel appearing for the respondent along with certain others had participated in removal of certain items of movable property from the petitioner's house and therefore, according to the petitioner, the counsel is a proper witness. 6. The original petition was filed seeking for a declaration OP(FC) No.702/16 -:3:- in regard to the right of the first petitioner over plaint A and B schedule properties and for recovery of amounts. 7. The short question to be considered in the matter is whether the lawyer who is appearing for a party can be removed at the instance of the opposite party. Learned counsel for the petitioner places reliance upon judgment of this Court in _**Abdhu**_ _**v. Veeravu**_ (1991 (1) KLT 116). In the said case, the question considered was whether a counsel appearing in a case can be summoned as witness by the opposite party. While considering the said matter, this Court also considered the question whether the Court can direct the Advocate to relinquish the vakalath and withdraw from the case. It was held at para 7 as under:- “ _7. The next aspect that falls for consideration is whether the court can direct the Advocate to relinquish the vakalath and withdraw from the case. This Court in Marikar (Motors) Ltd. v. Ravikumar (1988 (2) KLT 986) held that the advocate shall not be asked to relinquish the vakalath if the court or the authority concerned, after enquiry in the lines suggested above, is of the opinion that the disengagement of the Advocate from the case would jeopardise the interests of the party for_ OP(FC) No.702/16 ## -:4:- _whom the advocate appears. It was further held that if the court or the authority finds that an examination of the advocate as a witness is indispensable and hence the disengagement of the advocate from the case would not jeopardise the interest of the party for whom he appears, then the court or the authority concerned can ask the advocate to relinquish the vakalath. A Division Bench of the Patna High Court had occasion to consider this aspect in Chhatrapati Shivaji v. State (AIR 1990 Patna 157). It was held: “If it appears that the evidence to be given by the counsel is of formal nature, or that the application has been made with the intention of depriving the party of that counsel’s assistance or with some ulterior motive, then such an application is liable to be rejected. Close scrutiny and examination of the situation is a must in this case. But if the Court finds that the prayer for the withdrawal of the counsel for the case is bona fide and without any ulterior motive and not to cause prejudice, but to advance the cause of justice, then it will be the duty of the court to order that the lawyer who has become a relevant and material witness should not appear as a counsel in the case further more”. It has not been shown that the withdrawal of the advocate for defendant from the case would jeopardise the client’s interests. The court has therefore every right to direct the advocate to_ OP(FC) No.702/16 ## -:5:- _relinquish the vakalath and withdraw from the case for appearing as a witness on the side of the plaintiff. The order passed by the court below earlier permitting the plaintiff to summon the Advocate for the defendant as a witness has therefore to be restored.”_ 8. Therefore, it is clear that if the Court has to issue a direction to the Advocate to relinquish the vakalath, necessary enquiry in that regard has to be conducted and the Court will have to form an opinion that the disengagement of the Advocate from the case would not jeopardize the interest of the party for whom the Advocate appears. Further, it was held that if the Court or the authority finds that an examination of the Advocate as a witness is indispensable and therefore disengagement of the Advocate from the case would not jeopardise the interest of the party for whom he appears, then the Court concerned can ask the Advocate to relinquish the vakalath. 9. Two conditions therefore have to be complied with for directing an Advocate to relinquish his vakalath. One is that the direction to relinquish the vakalath by the counsel appearing OP(FC) No.702/16 -:6:- should not jeopardise the interest of the party for whom he appears and secondly the examination of the Advocate as a witness is indispensable and that the disengagement would not jeopardise the interest of the party for whom he appears. In the case on hand, the Family Court had come to the conclusion that the petitioner had not filed any witness list citing Advocate as witness on his side and secondly in order to consider the reliefs sought for, there is no necessity to examine the Advocate appearing on behalf of the respondent as he is not a material witness to prove the contentions raised in the written statement. Further, it is also held that if the counsel is directed to relinquish the vakalath, it will jeopardise the interest of the respondent. That apart, evidence of witnesses on behalf of the petitioner was also over. 10. Going by the findings of the Family Court, we do not find error on the part of the Family Court to enable us to interfere with the said order. Though it is stated in Ext.P3 that the Advocate is likely to be examined as a witness in regard to theft OP(FC) No.702/16 -:7:- of certain articles, it is open for the petitioner to prove the theft of articles even without examining the counsel. In para 11 of the written statement, it is stated that several other persons were there at the time of alleged theft. Even otherwise, no complaint had been filed regarding the allegation of theft. Nothing prevents the petitioner from proving the said fact if it all it was in existence by adducing other evidence. Hence, we do not think it necessary to interfere with the impugned order. OP(FC) is dismissed. ## Sd/- **A.M. SHAFFIQUE, JUDGE** Sd/- **K.RAMAKRISHNAN, JUDGE** Rp5/1/2017 //True Copy// P.S to Judge