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TMI Blog1993 (4) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that he had not executed the questioned promissory note. It was also alleged that, the plaintiff forged the said promissory note, at Ex. 33, by re-using the signed four revenue stamps on another promissory note, which was satisfied. A revenue stamp, known as 'refugee stamp', was also alleged to have been subsequently affixed. He also questioned the liability for payment of interest at the rate of 12 per cent per annum. 4. Pursuant to the pleadings of the parties, issues came to be framed, at Ex. 24. Upon analysis and examination of the evidence adduced by the parties in the course of the proceedings, the trial Court reached to the conclusion that the defendant had executed the questioned promissory note, Ex. 33, and the plaintiff is entitled to recover the amount of promissory note with interest at the rate of 6 per cent per annum from the date of the suit till realisation with costs and passed the decree. Hence, this appeal. 5. Having examined the facts and circumstances and the evidence emerging from the record of the present case, the impugned judgment and decree are not sustainable and supportable. The observations of the trial court with regard to the executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file the suit on behalf of the plaintiff. It appears clearly from his evidence that, when the plaintiff approached him with promissory note, Ex. 33, he found that except the printed version, there were no hand writings thereon. Even the refugee revenue stamp was not affixed thereon at the time when it was shown to him by the plaintiff. 9. The question, which now falls into sharp focus, at this stage, is as to whether the testimony of Mr. Giriani, at Ex. 50, is hit by the 'provisions of Section 126 of the Indian Evidence Act, 1872 (Evidence Act) or any other provisions thereof. Section 126 of the Evidence Act deals with all professional communications between a legal advisor and a litigant or a client, which are protected from disclosure. 10. It would be, therefore, at this stage, very relevant to have a close look into the provisions of Section 126, which read as under :-- 126. Professional communications :-- No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil by or on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be permitted to disclose any communications made to him in the course and for the purpose of professional employment of such legal adviser or to state the contents or condition of any documents with which any such person has become conversant in the course and for the purpose of such employment. The aforesaid provisions are, undoubtedly, enacted for the protection of the interest of the client and obviously not of a lawyer. It is also based on the impossibility of conducting legal business without the professional assistance and on the necessity in order to render that assistance effectual of securing full and unreserved communication between the adviser and the client. Instructions to counsel or legal advisers are also privileged documents. 14. No doubt the privilege afforded under the aforesaid provisions to a legal adviser is of a very limited character. It protects only such communications as are made to the legal adviser in confidence in the course and for the purpose of his employment. No doubt, it is true that mere absence of litigation or prospect thereof, at the time the confidential communications are made will not constitute an excuse for its disclosure, The obliga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has given, the client may then be compelled to disclose such communications. It should also be noticed that, whereas, Section 129 protects from disclosure only confidential communications, Section 126 protects all communications made in the course and for the purpose of professional employment. 18. The privilege contemplated in the aforesaid provisions is a privilege of the client and not of the professional adviser. The legal adviser, therefore, is bound to claim the privilege unless the client has given consent. The privilege does not depend upon the client being a party to the proceeding. When the client is not a party, neither party to the proceeding can claim the privilege. Disclosure of professional communications without the client's consent may amount to professional misconduct. 19. It is very clear from the aforesaid provision of Section 126 that nothing therein shall protect from disclosure -- (1) Any such communication made in furtherance of any illegal purpose. (2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. 20. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the commencement of the proceedings is also not protected from disclosure. 23. Having examined the facts and the circumstances emerging from the record of the present case and the aforesaid legal set up, the evidence of advocate Mr. Giriani, which is discarded by the trial Court, cannot be said to be forming privileged communication. It is obvious from the evidence on record that the plaintiff, after approaching the said advocate Mr. Giriani, desired to obtain a decree for money on the basis of a promissory note which was not genuine. The contention of the plaintiff that he had never engaged Mr. Giriani as his advocate is also falsified. It is crystal clear from the evidence of uncle of the plaintiff, Gulabrai, who had taken him to advocate Mr. Giriani, that Mr. Giriani was engaged by the uncle of the plaintiff in Civil Suit No. 1002 of 1972. Therefore, the plea of the plaintiff that he had never approached advocate Mr. Giriani and he had never sought any advice from him in connection with the questioned promissory note is without any substance and unacceptable. It appears from the record and evidence of advocate Mr. Giriani that, no writing except the printed form was found when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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