KOKKANDA B. POONDACHA AND OTHERS versus K.D. GANAPATHI AND ANR.

Citation: [2011] 4 S.C.R. 417 · Decided: 22-02-2011 · Supreme Court of India · Bench: G.S. SINGHVI, A.K. GANGULY · Disposal: Appeal(s) allowed
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Judgment (excerpt)

• 
[2011] 4 S.C.R. 417 
KOKKANDA B. POONDACHA AND OTHERS 
A 
v. 
K.D. GANAPATHI AND ANR. 
(Civil Appeal No. 2015 of 2011) 
FEBRUARY 22, 2011 
[G.5. SINGHVI AND ASOK KUMAR GANGULY, JJ.] 
Code of Civil Procedure, 1908 - Order XVI, Rules 1 and 
B 
2 r/w s.151 - Partition suit - Defendants filed application for 
permission to file a list of witnesses, which included the name C 
of the plaintiff's Advocate - Tdal Court granted the defendants 
the leave to file the list of witnesses but rejected their prayer 
for permission to cite the plaintiff's advocate as a witness on 
ground that no reason therefor was assigned in the application 
- Justification of- Held: Justified - If the parties to the litigation 
D 
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 
E 
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 insist that the party filing 
the list of witnesses should briefly indicate the purpose of F 
summoning the particular person as a witness - In the instant 
case, the concerned advocate was engaged by the plaintiffs 
almost 11 years prior to the filing of application by the 
defendants - During this long interregnum, the defendants 
never objected to the appearance of the plaintiff's advocate 
G 
by pointing out that he was interested in the subject matter of 
the suit -
The prayer made by the defendants for being 
allowed to cite the plaintiff's advocate as a witness was not only 
417 
H 
• 
418 
SUPREME COURT REPORTS 
[2011] 4 S.C.R. 
A misconceived but also mischievous ex-facie with an oblique 
motive of boarding him out of the case. 
Constitution of India, 1950...:. Articles 226 and 227 -
Interlocutory order passed by Subordinate Court - Challenge 
8 
to - Exercise of powers under Arts. 226 and 227 - Scope -
Held: In the instant case, the High Court totally ignored the 
principles and parameters laid down by this Court for exercise 
of power u/Articles 226 and 227 of the Constitution qua an 
interlocutory order passed by the Subordinate Court and set 
C aside the order of the trial Court without assigning any tangible 
reason. 
Advocates - Relationship between lawyer and his client 
- Duty imposed upon an Advocate - Discusseq -c Held: An 
Advocate cannot ordinarily withdraw from engagement without· 
D sufficient cause aod without giving reasonable and sufficient 
notice to the client- If an Advocate has reason to believe that 
he will be a witness in the case, he should not accept a brief 
or appear in the case - Principles of 'uberrima fides' - Bar 
Council of India Rules, 1975 - Rules 12, 13, 14 and 15 of 
E Section II, Chapter II of Part IV. 
-
Appellant Nos.1 to 3 and one other person filed suit 
for partition and separate possession of 1/Gth share each 
in the suit property and also for grant of a declaration that 
sale deed dated 10.7.1997 executed by appellant Nos.4 
F to 6 was not binding on them. Respondent Nos.1 and 2 
filed written statement, and subsequently, also filed an 
application 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 'NRK', the 
Advocate who had been representing the appellants in 
the suit from the very beginning. 
The trial Court partly allowed the application of 
• 
KOKKANDA B. POONDACHA AND ORS. v. K.D. 
419 
GANAPATHI AND ANR. 
respondent Nos.1 and 2 and granted them leave to file 
A 
the list of witnesses but rejected their prayer for 
permission to cite 'NRK' as a witness on ground that no 
reason therefor was assigned in the application. The 
respondents challenged the order of the trial Court by 
filing a petition under Articles 226 and 227 of the 
B 
Constitution insofar as their prayer for citing 'NRK' as a 
witness was rejected. The High Court allowed the petition 
and set aside the order of the trial Court holding that 
reasons were not required to be assigned to justify the 
summoning of a particular person as a witness. 
c 
In the instant appeal, the questions arising for 
consideration were: 1) whether the High Court
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