Advocate as material witness cannot continue the brief and later testify for the same party, except in limited formal witness cases.

An advocate who knows, at the time of accepting or continuing a brief, that he is likely to be a material witness on a disputed question of fact cannot later withdraw and depose for the same party. Section 120 of the Evidence Act does not bar an advocate's testimony as such, but Bar Council of India Rule 13 requires refusal or cessation of the brief where such a conflict is apparent, save for limited cases involving formal or court witnesses or a later realisation during proceedings. The order permitting the advocate to retire and testify for the defendants was set aside, the application to examine him was rejected, and his earlier evidence was expunged.

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Issues: Whether an advocate, who knew or had reason to believe that he would be a material witness on a disputed question of fact, could continue as counsel and later retire from the case to depose as a witness for the same party.

Analysis: The pleadings showed that the advocate was present at the meeting where the alleged oral contract was said to have been concluded, and the dispute turned on that very meeting. On those facts, he knew at the time of accepting and continuing the brief that he was likely to be a material witness. Section 120 of the Indian Evidence Act, 1872 does not prohibit testimony by an advocate as such, but Rule 13 of the Bar Council of India Rules requires an advocate not to accept or continue a brief when he has reason to believe that he will be a witness on a material question of fact, unless he can retire without jeopardising the client's interests. The Court held that the exception for retirement applies only where the advocate later realises during the course of proceedings that he is likely to be called as a witness, or where he is a formal or court witness.

Conclusion: The advocate could not be permitted to retire from the brief and then be examined as a witness for the defendants; the order allowing such examination was unsustainable.

Final Conclusion: The revision succeeded, the trial court's order was set aside, the defendants' application to examine their advocate as a witness was rejected, and the prior evidence of that witness was directed to be expunged.

Ratio Decidendi: An advocate who knows at the time of accepting or continuing a brief that he is likely to be a material witness on a disputed fact cannot later withdraw from the case and testify for the same party, save in the limited case of a formal or court witness.

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