- SECTION 126 – Daya Shanker Dubey v. Subhas Kumar
- Bench: Justice N Mithal
Facts:
The petitioner in this case was appointed as the panel lawyer to take up certain cases on behalf of the Tahsil in a Tahsil of Allahabad for a period of three years from 12 Feb 1990. However, a Government Notification made direction that the existing advocates will stay on up until 28th Feb 1990 and post this new appointment should be made. On 9-3-90 the District Collector with reference to the G.O. on 6-2-90 invited applications for appointment of Panel lawyer (Revenue) for Gaon Sabhas in Tahsil Meja, Allahabad. In June, 1990 fresh appointments of Panel Lawyers were made in the State of U.P. The GO upon being questioned was quashed in the Supreme Court in a separate case. The State government in this directed all magistrate to ensure compliance with the orders of the SC towards all General Counsel who were working on 28-2-90 were to be restored to their position unless their appointment was terminated by a fresh order.
Based on this, most of the General Counsel was restored back to their original position. The petitioner however, despite the orders was not given charge of panel lawyer urging him to question the writ petition filed. This resulted in the direction of the State to pass appropriate order in the case of the petitioner within three weeks from the date on which a certified copy of the order was produced before the concerned authority. The petitioner filed a case on the lack of his appointment in the Magistrate which ruled that the write order does not apply to him and tow people cannot be given the same job. This appeal lies in the same matter.
Issues:
Whether the privilege can be claimed of documents in cases where the opposite party has filed the same in Court?
Contentions of the Appellant:
The appellant contended that by not giving the petitioner work and not allowing him to be the panel lawyer, the order was violated. Further, even though the petitioner was not functioning as the panel lawyer as on the date in law, he became entitled to the same by the order and therefore by not assigning work, the same has been violated by the other party and the orders and judgement in the writ petition case were produced as evidence to further this argument where it was allowed for the petitioner to work. This evidence was the petition where in the opinion of the Chief Standing counsel was given in light of the case.
Contentions of the Respondent:
The contention of the respondent was that the there could be no violation of the order as the petitioner was not even working as a panel lawyer during the passing of the order and thus there is no question of interference at all. The evidence of the petition under Annexure 3 was contended as being privileged information and dialogue between the client and advocate. The counsel further stated that the submission made was however not even binding on the Magistrate regarding the order of the SC.
Judgment:
The Court held that the provisions of Section 126 to 129 of the Evidence Act (Professional Communications, privilege, etc.) would apply to a situation like this where in therefore, Annexure 3 cannot be excluded as a point of consideration by the Court. However, it has been accepted by the Court that these statements were merely admissible but not in any manner binding on the Magistrate who can take his decision on the matter. The Court however disagreed with the view of the Magistrate with extent to the treatment of the Government officer in question. The Court otherwise dismissed the petition by stating that an apology without punitive damages by the opposite party would be sufficient to claim the check the balance between the executive and judicial actions that have been taken by both parties in the matter.
The final judgment as to Section 126 is that privilege cannot be claimed if the opposite party is aware of such a document and has submitted the same to the Court.
