The High Court upheld a Family court order that had allowed an application seeking to summon and examine former lawyer of opposite party as a witness in the proceeding.

In this case, wife and husband, while a petition seeking permanent custody of the child filed by latter was pending, settled the issues and signed a mediation agreement. Later, the wife approached the Family court seeking to set aside the mediation agreement contending that it did not reflect the true consensus arrived at between the parties and it was only as a result of a fraud played on her. It was in these proceedings, the husband filed application to summon the former lawyer of the wife, who had signed the agreement. As the Family court allowed his application, the wife approached the High Court.

The issue before the High Court was whether summoning the lawyer of the opposite party could be said to be illegal and the request to summon the lawyer of the opposite party if allowed would offend Section 126 of the Evidence Act?

Section 126 of the Evidence Act prohibits lawyers from disclosing professional communications made to them by the clients in the course of their engagement, except with their consent. The court observed: "This protection solely meant for the clients, however, operates subject only to the proviso to Section 126 of the Act. The legal position appears to be that, a lawyer has no obligation to withhold or keep professional communications as confidential when the client himself consents him to disclose. Such a consensus is presumed or implied when the client himself opts to summon the lawyer as his own witness. When a lawyer is cited as a witness by the opposite party, the position, however, changes since no client in such a case could be presumed to consent to disclose what Section 126 of the Act prohibits. Nonetheless the bar under Section 126 ought not to be mistaken as prohibiting the lawyer of opposite party from being summoned as his own witness, in cases where his examination is justified by the circumstances. In such cases, the client's right to protection against disclosure extends only to matters communicated for the purpose of as well as in connection with the engagement of the lawyer. The lawyer has a legal obligation to preserve the information, knowledge and communications gained by him during the subsistence of his engagement as confidential and undisclosed, even after the engagement either ceased or discontinued. Going by the strict letter, the bar to disclosure applies only to such information and communications that are purely professional and made to the lawyer for effective conduct of the litigation of the party who engaged him."

Referring to the decisions cited before it, the bench said that none of them holds that a lawyer of an opposite party cannot be summoned under any circumstances. The bench observed that these decisions only state that the professional communications made to the lawyers by their clients should not be divulged to anyone except with the consent of the party who engaged him.

The court noted that, in this case, husband sought to summon the opposite lawyer as a witness for eliciting certain essential facts in disproof of allegations of fraud. The court said: "The essential facts include the answers of the lawyer as to whether the client signed in her presence and she had explained to her the terms and conditions of the agreement before it was signed. The witness, in our opinion, cannot withhold such essential answers claiming privilege under Section 126 of the Act. Such information are very valuable for the decision of the matter in dispute before the Family court and can never be taken as offending the bar against disclosure of the professional communications saved by law. They do not have any bearing or relevance to the matters connected with the engagement of a lawyer for conduct of the litigation."

The court also addressed the apprehension expressed that if the courts tend to allow the parties to cite and examine the lawyer on the opposite side as witness, it would be very embarrassing and also demeaning to the practitioners of law. In this regard, it said: "We are of the clear view that the courts have necessarily to avoid such embarrassment being caused to the lawyers and this could be ensured by permitting examination of lawyers only in cases where their testimony in court is absolutely essential and inevitable. The court shall be circumspect in summoning lawyers cited as witnesses, whether by their own clients or opposite parties, except when their examination is unavoidable. The request for examination should not be granted mechanically and for mere asking. If a particular matter or information could be effectively proved by other evidence, the courts could certainly decline to order examination of the lawyer to the extent possible. No hard and fast rule, however, could be laid in this respect and it is ultimately what a court informed by prudence and wisdom would decide in a particular case before it, depending on the facts and circumstances of each case."