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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s).2015 OF 2011 (Arising out of SLP(C)No.20821/2010)

KOKKANDA B. POONDACHA AND OTHERS          Appellant(s)

                 VERSUS

K.D. GANAPATHI AND ANOTHER               Respondent(s)

J U D G M E N T

Leave granted.

Whether the respondents (defendant Nos.5 and 6 in  

the suit filed by the appellants), could cite the advocate  

representing the appellants as a witness in the list filed  

under Order XVI Rule 1 (1) and (2) read with Section 151 of  

the Code of Civil Procedure (CPC) without giving an iota of  

indication about the purpose of summoning him in future is  

the question which arises for consideration in this appeal  

filed against order dated 24.02.2010 passed by the learned  

Single Judge of the Karnataka High Court whereby he set  

aside the order passed by the trial Court partly dismissing  

the application of the respondents.  

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Appellant Nos.1 to 3 and one Parvathy filed suit,  

which  came  to  be  registered  as  O.S.  No.75  of  1996,  for  

partition and separate possession of 1/6th share each in the  

suit property and also for grant of a declaration that sale  

deed dated 10.7.1997 executed by defendant Nos.2 to 4, who  

were,  later  on,  transposed  as  plaintiff  Nos.5  to  7  

(appellant Nos.4 to 6 herein), was not binding on them.  

Defendant  Nos.5  to  7  (including  respondent  Nos.1  and  2  

herein) filed written statement on 19.2.1998.  Respondent  

Nos.1 and 2 filed additional written statement on 9.8.2002.  

After two years and seven months, they filed an application  

dated 11.3.2005 under Order XVI Rule 1 (1) and (2) read with  

Section 151 C.P.C. supported by an affidavit of respondent  

No.1 for permission to file the list of witnesses, which  

included the name of Shri N. Ravindranath Kamath, Advocate,  

who was representing the appellants in the suit from the  

very beginning.

The trial Court partly allowed the application of  

respondent Nos.1 and 2 and granted leave to them to file the  

list of witnesses but rejected their prayer for permission  

to cite Shri N. Ravindranath Kamath as witness No.1. The  

reasons assigned by the trial Court for partially declining  

the prayer of respondent Nos.1 and 2 are extracted below:

“......................While  citing  advocate  of  the opposite party as a witness, the defendants 3

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and 4 ought to have given reason for what purpose  they are citing him as a witness and examining him  in  their  favour.   Once  the  advocate  for  the  opposite party is cited as a  witness in the list,  the opposite party losses precious service of his  advocate.  In that circumstances, the party will  suffer.  Under the circumstances, so as to know  for  what  purpose  the  defendant  no.2  and  3  are  citing and examining the N.R. Kamath advocate for  the  plaintiff  in  their  favour  have  to  assign  reason.   The  Court  has  to  very  cautious  and  careful while considering such an aspect of the  matter of examining and citing the advocate for  the opposite party in their favour.  The Court has  to determine as to whether the evidence of said  advocate is material for the decision of the case  or  not?   Unless  defendant  no.2  and  3  assigned  reason in the application or in the affidavit as  to  why  they  are  citing  the  advocate  for  the  opposite party and examining in their favour, the  application filed by defendant no.2 and 3 is not  maintainable  and  the  said  application  is  not  sustainable  under  law.   In  the  above  said  Judgment, in para 2, it is clearly held that, “but  appellants  then  filed  a  petition  seeking  permission to cite the advocate of the respondents  as  a  witness”.   But  herein  this  case,  the  defendant no.2 and 3 are not seeking permission to  cite the advocate for the plaintiff as a witness.  Defendant  no.2  and  3  not  only  have  to  seek  permission of this Court to cite the advocate for  the Plaintiff as a witness, but also he has to  give good reasons for what purpose he is citing  him  as  a  witness  and  examining  in  his  favour.  Without assigning any reasons and without seeking  permission to cite the advocate for the Plaintiff  as a witness in the witness list, application to  that extent is not tenable and same is liable to  be dismissed to that extent.”

The respondents challenged the order of the trial  

Court by filing a petition under Articles 226 and 227 of the  

Constitution  insofar  as  their  prayer  for  citing  Shri  N.  

Ravindranath Kamath as a witness was rejected.  The learned

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Single Judge allowed the petition and set aside the order of  

the trial Court by simply observing that reasons are not  

required  to  be  assigned  to  justify  the  summoning  of  a  

particular person as a witness.

Mrs.  Kiran  Suri,  learned  counsel  for  the  

appellants relied upon the judgment of this Court in Shalini  

Shyam Shetty vs. Rajendra Shankar Patil (2010) 8 SCC 329 and  

argued that the order under challenge is liable to be set  

aside  because  the  High  Court  committed  serious  error  by  

interfering  with  the  order  of  the  trial  Court  without  

recording a finding that the said order is vitiated due to  

want of jurisdiction or any patent legal infirmity in the  

exercise of jurisdiction and that refusal of the trial Court  

to  permit  the  respondents  to  cite  Shri  N.  Ravindranath  

Kamath as a witness had prejudiced their cause.  She further  

argued that the respondents are not entitled to cite and  

summon as a witness the advocate representing the appellants  

because in the application filed by them, no justification  

was offered for doing so.  In support of this argument, Mrs.  

Suri relied upon the judgment of this Court in Mange Ram vs.  

Brij Mohan (1983) 4 SCC 36.    

Shri  S.N.  Bhatt,  learned  counsel  for  the  

respondents argued that even though his clients had filed  

application belatedly, the trial Court was not justified in

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declining  their  prayer  for  citing  Shri  N.  Ravindranath  

Kamath as a witness merely because he was representing the  

appellants.  Learned counsel submitted that at the stage of  

filing the list of witnesses, the plaintiffs or for that  

reason  the  defendants  are  not  required  to  disclose  the  

nature of the evidence to be given by the particular witness  

or its relevance to the subject matter of the suit etc. and  

the trial Court had grossly erred in not granting leave to  

the respondents to cite Shri N. Ravindranath Kamath as one  

of their witnesses.  Shri Bhatt relied upon the judgment in  

Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675  

and argued that even after amendment of Section 115, C.P.C.,  

the High Court can, in exercise of supervisory power under  

Article 227, correct the error of jurisdiction committed by  

the Subordinate Court.

We have considered the respective submissions.  We  

shall first consider the question whether the High Court  

could interfere with the order of the trial Court without  

considering the question whether the said order was vitiated  

due to want of jurisdiction or the trial Court had exceeded  

its  jurisdiction  in  deciding  the  application  of  the  

respondents  and  the  order  passed  by  it  has  resulted  in  

failure of justice.  In Surya Dev Rai's case (supra), the  

two  Judge  Bench,  after  detailed  analysis  of  the  various

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precedents on the scope of the High Court's powers under  

Articles 226 and 227 of the Constitution  culled out nine  

propositions including the following:-

“(2) Interlocutory  orders,  passed  by  the  courts  subordinate  to  the  High  Court,  against  which  remedy  of  revision  has  been  excluded  by  CPC  Amendment Act 46 of 1999 are nevertheless open to  challenge  in,  and  continue  to  be  subject  to,  certiorari  and  supervisory  jurisdiction  of  the  High Court.

(3)  Certiorari,  under  Article  226  of  the  Constitution,  is  issued  for  correcting  gross  errors  of  jurisdiction  i.e.  when  a  subordinate  court  is  found  to  have  acted  (i)  without  jurisdiction  –  by  assuming  jurisdiction  where  there  exists  none,  or  (ii)  in  excess  of  its  jurisdiction  –  by  overstepping  or  crossing  the  limits  of  jurisdiction,  or  (iii)  acting  in  flagrant  disregard  of  law  or  the  rules  of  procedure or acting in violation of principles of  natural  justice  where  there  is  no  procedure  specified,  and  thereby  occasioning  failure  of  justice.

(4) Supervisory jurisdiction under Article 227 of  the  Constitution  is  exercised  for  keeping  the  subordinate  courts  within  the  bounds  of  their  jurisdiction.   When  the  subordinate  Court  has  assumed a jurisdiction which it does not have or  has failed to exercise a jurisdiction which it  does have or the jurisdiction though available is  being  exercised  by  the  Court  in  a  manner  not  permitted by law and failure of justice or grave  injustice has occasioned thereby, the High Court  may  step  in  to  exercise  its  supervisory  jurisdiction.

(5) Be it a writ of certiorari or the exercise of  supervisory  jurisdiction,  none  is  available  to  correct mere errors of fact or of law unless the  following  requirements  are  satisfied:  (I)  the  error is manifest and apparent on the face of the  proceedings  such  as  when  it  is  based  on  clear  ignorance or utter disregard of the provisions of

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law, and (ii) a grave injustice or gross failure  of justice has occasioned thereby.”

In Shalini Shyam Shetty vs. Rajendra Shankar Patil  

(supra), the Court again examined the scope of the High  

Court's power under Article 227 of the Constitution and laid  

down the following proposition:

“Article  227  can  be  invoked  by  the  High  Court  suo motu as a custodian of justice. An improper  and  a  frequent  exercise  of  this  power  will  be  counterproductive  and  will  divest  this  extraordinary power of its strength and vitality.  The  power  is  discretionary  and  has  to  be  exercised very sparingly on equitable principle.  This  reserve  and  exceptional  power  of  judicial  intervention  is  not  to  be  exercised  just  for  grant of relief in individual cases but should be  directed  for  promotion  of  public  confidence  in  the administration in the larger public interest  whereas Article 226 is meant for protection of  individual grievances. Therefore, the power under  Article 227 may be unfettered but its exercise is  subject  to  high  degree  of  judicial  discipline.  The object of superintendence under Article 227,  both administrative and judicial, is to maintain  efficiency, smooth and orderly functioning of the  entire machinery of justice in such a way as it  does not bring it into any disrepute.  The power  of interference under Article 227 is to be kept  to  the  minimum  to  ensure  that  the  wheel  of  justice does not come to a halt and the fountain  of justice remains pure and unpolluted in order  to maintain public confidence in the functioning  of the tribunals and courts subordinate to the  High Court.”

The learned Single Judge of the High Court totally  

ignored the principles and parameters laid down by this  

Court for exercise of power under Articles 226 and 227 of  

the Constitution qua an interlocutory order passed by the

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Subordinate  Court  and  set  aside  the  order  of  the  trial  

Court without assigning any tangible reason.

The  next  question  which  needs  consideration  is  

whether a litigant filing the list of witnesses is bound to  

indicate, howsoever briefly, the relevance of the witness to  

the subject matter of the suit etc., and, in any case, one  

party  to  the  proceedings  cannot  cite  the  advocate  

representing the other side as a witness and thereby deprive  

the  latter  of  the  services  of  the  advocate  without  

disclosing as to how his testimony is relevant to the issues  

arising in the case.  In Mange Ram vs. Brij Mohan (supra),  

this Court interpreted Order XVI Rule 1 (1),(2) and (3) CPC  

and observed:

“If  the  requirements  of  these  provisions  are  conjointly read and properly analysed, it clearly  transpires that the obligation to supply the list  as  well  as  the  gist  of  the  evidence  of  each  witness whose name is entered in the list has to  be carried out in respect of those witnesses for  procuring  whose  attendance  the  party  needs  the  assistance of the court.”

At this stage, we may also advert to the nature of  

relationship  between  a  lawyer  and  his  client,  which  is  

solely founded on trust and confidence.  A lawyer cannot  

pass on the confidential information to anyone else. This is  

so because he is a fiduciary of his client, who reposes  

trust and confidence in the lawyer. Therefore, he has a duty  

to fulfill all his obligations towards his client with care

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and act in good faith. Since the client entrusts the whole  

obligation of handling legal proceedings to an advocate, he  

has to act according to the principles of uberrima fides,  

i.e.,  the  utmost  good  faith,  integrity,  fairness  and  

loyalty.   

The  duties  of  an  advocate  to  the  Court,  the  

client, opponent and colleagues are enumerated in Chapter II  

of Part IV of the Bar Council of India Rules, 1975 (for  

short, “the Rules”).  Rules 12, 13, 14 and 15 of Section II,  

Chapter II of Part IV of the Rules, which regulate the duty  

of an advocate to the client, read as under:

“12. An  advocate  shall  not  ordinarily  withdraw  from  engagements,  once  accepted,  without  sufficient  cause  and  unless  reasonable  and  sufficient notice is given to the client.  Upon  his withdrawal from a case, he shall refund such  part of the fee as has not been earned.

13. 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.

14. An advocate shall, at the commencement of his  engagement  and  during  the  continuance  thereof,  make all such full and frank disclosures to his  client relating to his connection with the parties  and any interest in or about the controversy as  are  likely  to  affect  his  client's  judgment  in  either engaging him or continuing the engagement.

15. It  shall  be  the  duty  of  an  advocate  fearlessly to uphold the interests of his client  by all fair and honourable means without regard to

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any  unpleasant  consequences  to  himself  or  any  other.  He shall defend a person accused of a  crime regardless of his personal opinion as to the  guilt of the accused, bearing in mind that his  loyalty is to the law which requires that no man  should be convicted without adequate evidence.”    

An  analysis  of  the  above  reproduced  Rules  show  

that one of the most important duty imposed upon an advocate  

is to uphold the interest of the client fearlessly by all  

fair and honourable means.  An advocate cannot ordinarily  

withdraw  from  engagement  without  sufficient  cause  and  

without  giving  reasonable  and  sufficient  notice  to  the  

client.  If he has reason to believe that he will be a  

witness in the case, the advocate should not accept a brief  

or appear in the case.  In V. C. Rangadurai v. D. Gopalan  

(1979) 1 SCC 308, A.P.Sen, J. outlined the importance of the  

relationship of an advocate with his client in the following  

words:

“Nothing should be done by any member of the legal  fraternity  which  might  tend  to  lessen  in  any  degree  the  confidence  of  the  public  in  the  fidelity, honesty and integrity of the profession.  Lord  Brougham,  then  aged  eighty-six,  said  in  a  speech, in 1864, that the first great quality  of  an advocate  was 'to reckon everything subordinate  to the interests of his client'.  What he said in  1864  about  'the  paramountcy  of  the  client's  interest', is equally true today.  The relation  between  a   lawyer  and  his  client  is  highly  fiduciary in its nature and of a very delicate,  exacting, and confidential character requiring a  high degree  of fidelity and good faith.  It is  purely  a  personal  relationship,  involving  the  highest personal trust and confidence which cannot  be  delegated  without  consent.   A  lawyer  when

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entrusted with a brief, is expected to follow the  norms of professional ethics and try to protect  the interests of his clients, in relation to whom  he occupies a position of trust.  The appellant  completely betrayed the trust reposed in him by  the complainants.”  

If the prayer made by the respondents for being  

allowed to cite Shri N. Ravindranath Kamath as a witness is  

critically scrutinised in the backdrop of the above noted  

statement on the duties of an advocate towards his client,  

we have no hesitation to hold that the same was not only  

misconceived but was mischievous ex-facie. Neither in the  

written statement nor the additional written statement filed  

by  them  before  the  trial  Court,  the  respondents  had  

attributed  any  role  to  Shri  N.  Ravindranath  Kamath  in  

relation to the subject matter of the suit.  The concerned  

advocate was engaged by the plaintiffs-appellants in 1996  

i.e. almost 11 years prior to the filing of application by  

the respondents under Order XVI Rule 1(1) and (2) read with  

Section  151  CPC.   During  this  long  interregnum,  the  

respondents  never  objected  to  the  appearance  of  Shri  N.  

Ravindranath  Kamath  as  an  advocate  of  the  appellants  by  

pointing out that he was interested in the subject matter of  

the suit. Notwithstanding this, the respondents cited him as  

a witness in the list filed along with the application.  The  

sole purpose of doing this was to create a situation in  

which the advocate would have been forced to withdraw from

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the case.  Luckily for the appellants, the trial Court could  

see the game plan of the respondents and frustrated their  

design by partly dismissing the application.  The learned  

Single Judge ignored that the respondents had included the  

name of Shri N. Ravindranath Kamath in the list of witnesses  

proposed to be summoned by them with an oblique motive of  

boarding him out of the case and passed the impugned order  

by recording one line observation that the respondents were  

not required to give reasons for summoning the particular  

person as a witness.

We may add that if the parties to the litigation  

are allowed to file list of witnesses without indicating the  

purpose  for  summoning  the  particular  person(s)  as  

witness(es),  the  unscrupulous  litigants  may  create  a  

situation  where  the  cases  may  be  prolonged  for  years  

together.   Such  litigants  may  include  the  name  of  the  

advocate representing the other side as a witness and if the  

Court casually accepts the list of witnesses, the other side  

will  be  deprived  of  the  services  of  the  advocate.  

Therefore, it would be a prudent exercise of discretion by  

the  Court  to  insists  that  the  party  filing  the  list  of  

witnesses should briefly indicate the purpose of summoning  

the particular person as a witness.     

In  the  result,  the  appeal  is  allowed,  the  impugned

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order is set aside and the one passed by the trial Court is  

restored. The respondents shall pay cost of Rs.50,000/- to  

the appellants.

........................J. (G.S. SINGHVI)             

........................J. (ASOK KUMAR GANGULY)       

NEW DELHI, FEBRUARY 22, 2011.