K.J. Shaju v. Jerome Edison and Others

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. FRIDAY THE 16[th] SEPTEMBER, 2022 /25TH BHADRA, 1944** ## **WP(C) NO. 28907 OF 2014** ## **PETITIONER/S:** K.J. SHAJU AGED 54 YEARS S/O.LATE K.J.JOSEPH,ADVOCATE,RESIDING AT KALLOLICKAL PUTHENPURA,FAIRLAND,SULTHAN BATHERY,AMSAM,SULTHAN BATHERY.P.O,WAYANAD DISTRICT,PIN-673592. BY ADVS. SRI.M.M.MONAYE SRI.DESI MATTHAI SRI.M.PAUL VARGHESE ## **RESPONDENT/S:** 1 JEROME EDISON PROPRIETOR,SQUARE COMPUTER TECHNOLOGIES,BELOW CATHOLIC SYRIAN BANK LTD,SULTHAN BATHERY,WAYANAD DISTRICT,PIN-673592. 2 SRI.JOBBY SQUARE COMPUTER TECHNOLOGIES,BELOW CATHOLIC SYRIAN BANK LTD,SULTHAN BATHERY,WAYANAD DISTRICT,PIN-673592. 3 SRI.K.J.VIJAYAKUMAR S/O.JANARDANAN NAIR,ADVOCATE SHREESAILAM HOUSE,KARAKKANDY,KUPPARO AMSAM,KUPPARAI.P.O,SULTHAN BATHERY TALUK,WAYANAD DISTRICT,PIN-673592. 4 THE CONSUMER DISPUTES REDRESSAL FORUM WAYANAD,KALPETTA,PIN-673121. BY ADV DR.GEORGE ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.08.2022, THE COURT ON 16TH SEPTEMBER, 2022 DELIVERED THE FOLLOWING: -2- W.P.(C ) No. 28907 of 2014 _CR_ ## MOHAMMED NIAS C.P.,J. …............................................................. W.P.(C ) No. 28907 of 2014 …............................................................ ## Dated, this the 16[th] day of September, 2022 ## JUDGMENT The writ petitioner challenges Ext. P8 order passed by the Consumer Disputes Redressal Forum, Wayanad, in an application filed by him to direct the respondent herein, the counsel appearing for and on behalf of the opposite parties not to appear for them as he was cited as a witness by the complainant. 2. The facts leading to the filing of the writ petition are as follows: The petitioner is the complainant in C.C. No. 41 of 2014 filed before the Consumer Disputes Redressal Forum, Kalpetta, Wayanad District, alleging deficiency in service rendered by the Ist and the 2nd respondent relating to the work done by them for the petitioner. Before filing the complaint on 28-2-2014, the petitioner had specifically alleged in the notice itself dated 24-3-2012, among other -3- W.P.(C ) No. 28907 of 2014 facts that the 3rd respondent, a lawyer's intervention was sought to settle the issue as he is very close to the opposite parties. 3. The first and the 2nd respondent, in response to the notice denied having done any work for the petitioner. The first respondent had denied his acquaintance with the 3rd respondent stating that he is not even known to him. 4. After the exchange of notices, when the complaint was filed as stated above, the 3rd respondent Advocate K.J.Vijayakumar was shown as a witness in the complaint itself. It is to be noted that the complaint was filed nearly after two years after sending the notice, as the petitioner expected some positive response from respondents 1 and 2. After the forum issued notice to the opposite parties, the 3rd respondent Advocate appeared for respondents 1 and 2. This made the petitioner file an application on 12-5-2014 as I.A No. 179/2014 with a prayer to direct the 3rd respondent not to continue his appearance for the opposite parties. A list of witnesses showing the name of the 3rd respondent as well, was also filed on the same day. The 3rd respondent filed a counter denying the allegations made and stating that the petition is misconceived and that he is not aware of the statements made in the affidavit in support of the petition and -4- W.P.(C ) No. 28907 of 2014 averred that the only idea of the petitioner is to prevent him from appearing for the opposite party. It is also alleged that the counsel for the petitioner had stated before the forum that he has no objection in 3[rd] respondent appearing before the forum and argued that such matters cannot be the subject matter before the forum and that it is only the Bar Council that can look into all these aspects. He is duty bound to accept a brief when the client approaches him and the closeness of the 3[rd] respondent to the opposite parties was also denied. The forum considered the application and held that the counsel concerned is not a witness to a material question of fact, and therefore, his appearance as a counsel for the opposite parties will not in any way affect the case of the complainant and accordingly, proceeded to dismiss the application by Ext. P8 order, which is challenged in this Writ Petition. 5. The learned counsel for the respondent argues that the petitioner has an alternate efficacious remedy of filing an appeal before the State Commission and, therefore, the writ petition be dismissed. He relies on the judgment in [Cicily Kallarackal v. Vehicle Factory 2012 (3) KHC 689 and Controller of Examination, Kannur and Another v. Sreya. N. 2021 (5) KHC 537]. The learned counsel for the writ petitioner relies on the judgment of this Court in [Union Bank of -5- W.P.(C ) No. 28907 of 2014 ## India v. K.J. Jose and Others 2022 (2) KHC 739] for the proposition that the writ petition was already admitted and it has come up for hearing after years and, therefore, relegating him to the statutory remedy now would result in injustice. There can be no doubt with the proposition that in ordinary cases, when there exists an alternate efficacious remedy, a writ petition should not be allowed to be used to impugn the orders. In the instant case, taking into account the fact that the writ petition was admitted in the year 2013, an interim order was passed and also reckoning the nature of the dispute involved in this case, I hold that relegating the petitioner to avail the alternate remedy at this distance of time would not serve the ends of justice. 6. In the instant case, right from the stage of notice as well as in the complaint filed two years thereafter, the third respondent's name and involvement was mentioned by the complainant and it is too far-fetched to think that it was done with the objective of ensuring that he does not appear for the opposite parties. The complainant would allege that the involvement of the said advocate was mentioned in notice itself as according to them, he was the one whom the complainant approached to intervene in the matter. In that view of the matter, it will be premature to hold that the advocate concerned is -6- W.P.(C ) No. 28907 of 2014 not a witness on a material question of fact and the said finding in Ext. P8 is liable to be interfered. 7. It is to be noted that the appearance of a counsel in a case where he is cited as a witness is not in accordance with the best interests and traditions of the Bar. Normally, if the advocate is called upon to be a witness in the very case in which he is appearing, then it should be left to the good sense of the advocate to decide whether to continue to appear for them or not. It may even cause embarrassment to the counsel himself nor will he be in a position to address the court as to the credibility of his own testimony. 8. The nature of relationship between a lawyer and his client being solely founded on trust and confidence, a lawyer cannot pass on confidential information to anyone else. One of the most important duties of an advocate is to uphold the interest of his client fearlessly by all fair and honourable means. Resultantly, an advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client. However, if he has a reason to believe that he will be a witness in a case, an advocate should not accept the brief or appear in that case. On the facts of the case, more particularly, when the involvement of -7- W.P.(C ) No. 28907 of 2014 the third respondent was indicated from the stage of notice itself, ideally he should not have accepted the brief of the opposite parties. In this context, it is relevant to extract R. 13 of Chapter 2 of Part VI of the Bar Council of India Rules which reads thus:- “An Advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he can retire without jeopardising his client's interests”. 9. In this case, of particular significance is the fact that the 3[rd] respondent cannot be heard to say that his involvement was mentioned by the complainant only after he was engaged by the opposite parties as right from the stage of issuance of notice, preceding the filing of the complaint, the alleged role of the 3[rd] respondent was mentioned. Thus, I hold that the above rules apply on all fours. The finding of the forum in the instant case, that the 3[rd] respondent cannot be treated as a witness on a material question of fact cannot be upheld in the aforementioned circumstances. His evidence or the lack of it may or may not having a bearing on the case, but as the rule stipulates that when there is reason to believe that an advocate will be a witness even before the commencement of -8- ## W.P.(C ) No. 28907 of 2014 the litigation, it becomes apparent that he may be cited as a witness on a material question of fact, then he should not have continued to appear as an advocate. As held in [R. v. Secretary of State for India in ## Council, ex parte Ezekiel [1941] 2 KB 169]. There is a short observation which the other members of the court desire me to make and with which I agree. It has been brought to the attention of the court that, on the hearing at Bow Street, junior counsel on one side was called as a witness to prove certain aspects of Indian law and continued thereafter to act as counsel in the case. No objection was taken to this by counsel on the other side. We think it right to point out that this was irregular and contrary to practice. A barrister may be briefed as counsel in a case or he may be a witness in a case. He should not act as both counsel and witness in the same case”. The Advocates Act is a self contained code and the authority of the Courts to interfere in such matters is limited. Normally, the practice of citing the counsel for the opposite party as a witness deserves to be discouraged unless the evidence sought to be elicited from the counsel is very material for adjudication. In the light of the discussion above made, I feel bound to order,though I do so with regret, directing the 3[rd] respondent to relinquish the vakalath. I.A. No.179/2014 filed before the forum shall stand allowed. 10. Having found that the rule extracted above applies to the fact situation, Ext. P8 order will have to be set aside and the extreme -9- W.P.(C ) No. 28907 of 2014 step of directing the advocate concerned to relinquish the vakalath is to be ordered. I would have expected the 3[rd] respondent to withdraw from the case and honour the request. That not having happened, this Court is put to the inconvenient task of passing an order to do so. Writ Petition is allowed as above. Sd/-MOHAMMED NIAS C.P., JUDGE. Ani/ /true copy/ -10- W.P.(C ) No. 28907 of 2014 ## **APPENDIX OF WP(C) 28907/2014** PETITIONER EXHIBITS EXT.P1 COPY OF THE COMPLAINT FILED ON 28.2.2014 EXT.P2 COPY OF THE NOTICE DATED 24.3.2012 EXT.P3 COPY OF THE REPLY DATED 30.3.2012 SENT BY THE IST RESPONDENT EXT.P4 COPY OF THE REPLY DATED 30.3.2012 SENT BY THE 2ND RESPONDENT EXT.P5 COPY OF THE PETITION DATED 12.5.2014 EXT.P6 COPY OF THE LIST WITNESSES DATED 12.5.2014 EXT.P7 COPY OF THE COUNTER DATED 16.5.2014 FILED BY THE 3RD RESPONDENT EXT.P8 COPY OF THE ORDER DATED 19.9.2014 IN I.A.179/2014 IN CC.41/2014.