The High Court of Punjab and Haryana has ruled that purely “factual information” between an Advocate and his Client cannot be termed as “privileged” and the Lawyer in such matters can appear as a witness for the other party.

The ruling by Justice Arun Monga came in a case where “factual information” regarding an alleged compromise between the parties was being sought from an erstwhile lawyer”. It was alleged by one of the parties that the Lawyer had remained their counsel and could not appear as a witness against them. It was also argued that the act was contrary to Section 126 of the Indian Evidence Act.

The party’s case was that the exchange of information between the erstwhile lawyer and the client was privileged. As such, the immunity envisaged under Section 126 debarred the erstwhile lawyer to appear as a witness against the client.

Justice Monga asserted Section 126 indeed prohibited a lawyer from divulging any communication or professional information disclosed to him by his clients even after the professional relationship between the two ceased to exist. The only exception was consent by the client for the disclosure of the information.

Justice Monga added a fact witnessed or observed by an advocate regarding fraud having been committed was, however, not protected. As such, the immunity envisaged under Section 126 did not provide an absolute bar on the lawyer of the adversarial party from being summoned in all circumstances and certain exemptions had been provided.

“What is being sought here from the erstwhile lawyer is merely the factual information with regard to an alleged compromise between the parties and/or whether the lawyer ever witnessed any such compromise and/ whether his client entered into compromise in his presence or signed the same etc. None of this factual information can be termed as privileged information having any trappings of the immunity envisaged under Section 126”.

Justice Monga made it clear that the trial court would ensure that any information sought from the erstwhile lawyer at the time of testimony was not in contravention of Section 126 so as to protect the interest of his former client. 

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