TaxTMI 
TaxTMI 
1993 (10) TMI 375
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....ss. 2. In the suit filed by the applicant-original plaintiff for certain directions and reliefs, it was contended by the plaintiff that on 30th December, 1991 oral agreement was entered into between the present applicant and the respondents-original defendants as regards the sale of the suit property. In the plaint filed by the applicant, more particularly Para 9 he averred to the effect: "The Plaintiff submits that thereafter on 30th December, 1991 the final meeting was held in the office of the Plaintiff's Advocate when Shri Khandeparkar, Architect and Defendant No. 1 along with his Advocate Shri N. N. Vaishnav were present. Thereafter it was finally agreed in the said meeting that the plaintiff shall purchase from Defendants ....
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.... cannot be allowed to given evidence in the suit. 5. After hearing both the sides, the trial Court allowed the application dated 7-10-1993. It is this decision which is the subject matter of this civil revision application. 6. Shri Reis, learned Counsel for the applicant, contended that from the pleadings it is clear that there was a meeting between the applicant on one hand and the respondents on the other hand on 30th December, 1991 wherein Advocate Shri Vaishnav was one of the persons who attended the said meeting. Advocate Shri Vaishnav in fact drafted the written statement on behalf of the respondents-original defendants. Since with the knowledge Advocate Shri Vaishnav decided to act as an Advocate, under law he cannot retire from th....
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....conduct in such matters is likely to be impugned, but finds in the course of the case that it is so impugned, he ought not to continue to appear in the case unless he cannot retire without jeopardizing the interests of his client." By relying on the aforesaid observations, it was contended on behalf of the applicant that in fact if the counsel knows or has reason to believe that he will be an important wiliness he should not accept the position of Advocate for and on behalf of the party. 9. On the other hand, Shri Pungalia, learned Counsel for the respondents, contended that even as per this authority if Advocate comes to know that subsequently he is likely to be cited as a material witness of fact, then in that event he can retire a....
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....a matter to which a counsel deposes in other than formal, he should testify either for or against the party whose case lie in conducting." 12. In the present case admittedly Shri Vaishnav was not a formal witness and, therefore, as discussed above, once he has elected to be an Advocate on behalf of the respondents, he cannot, at a subsequent stage, come as a witness for and on behalf of the respondents-original defendants after retiring from the suit. 13. Shri Reis has also relied on one more authority in re C. S. Venkatachariar, First Grade Pleader and R. S. Second Grade Pleader, AIR 1942 Mad 691, wherein it has been held that: "A person who is appearing as Counsel should not give evidence as a witness, if in the course of th....
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....hat 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 facts, he should not continue to appear as an advocate if he can retire without jeopardizing his client's interest." 18. According to me, however, Advocate's duty of utmost good faith or trusteeship will prevent him as Advocate and witness in the same case unless he is formal witness. In law Advocate owes duty to his client as well as to the rival party and also to the Court and, therefore, it is undesirable that he should testify either for or against the party whose case he is conducting. 19. In the facts and circumstances of this case, since Advocate Shri Vaishnav knew full well that he could have bee....