' Both the appeals captioned above are being disposed of by this order. The controversy involved has arisen in the following way. Muhammad Yaqub Khan, appellant in Civil Appeal No, 8/M. R. Of 1978, purchased 158 kanals 14 marlas of land vide sale-deed registered on 14th January, 1965 from one Mst. Sarwar Jan. Adalat Khan (respondent to this appeal) and Mst. Feroze Begum, appellant in Civil Appeal No, 9/M. R. Of 1978, sought to pre-empt the sale through two separate suits. The suits were consolidated and disposed of by the learned trial Judge by one judgment on 30th July, 1967.
Feroze Begum's suit, for her failure to prove her perferential right, ended in dismissal while a pre- emption decree was recorded for Adalat Khan, the rival pre-emptor.
2. Both Mst. Feroze Begum (pre-emptor) and Muhammad Yaqub Khan (vendee), to assail the judgment of the Sub-Judge, appealed to the District Judge, Mirpur, who, vide order dated 30th January, 1971, framed two additional issues and remitted the same to the Sub-Judge, Mirpur, for trial and report which was accordingly done.
3. The District Judge, after receipt of the report from the Sub-Judge, vide his judgment dated 13th November, 1974 felt advised to accept the appeal of Muhammad Yaqub Khan (vendee) and a pre- emptive decree thus was recorded in his favour. Mst. Feroze Begum's appeal, however, was disallowed. It may be stated that during the pendency of the suit in the trial Court. 24 kanals out of the suit land was acquired by the Government for the construction of Mangla Dam reservoir. The District Judge opined that Muhammad Yaqub Khan, vendee, for this acquisition, was saved from the mischief of pre-emption laws under some notification made in this behalf.
4. To assail the finding of the District Judge two appeals -one by ,Adalat Khan, pre-emptor, and the second by Mst. Feroze Begum, rival pre-emptor were moved before the High Court. Mr. Justice Saraf (Retired), the learned Chief Justice of the time. Vide judgment dated 27th December, 1975 accepted the appeal of Adalat Khan and passed a decree of preemption in his favour. About Mst.
Feroze Begum, the rival pre-emptor, it was held that Adalat Khan, being relative of vendee in nearer degree, excludes Mst. Feroze Begum and thus she was non-suited. The learned Judge in the High Court further opined that Muhammad Yaqub Khan, vendee, cannot be said to be a Mangla Dam affected person because a portion of the very land, which was subject of the pre-emption suits, was acquired and the spirit of the law is that a person whose land, originally owned by him and not the land whose sale is being pre-empted (as the case is before me), had been acquired for purpose of construction of Mangla Dam, can only be protected under notifications touching the issues.
5. These appeals by leave seek to impugn the said judgment of the High Court. Leave, on 8th November, 1977, was granted to consider the following points :-
(i) Whether in view of the notifications issued at different times under section 6(2) of the Right of Prior Purchase Act, pre-emptors in this case, namely, Adalat Khan and Mst. Feroze Begum lost the right of pre-emption and how ?
(ii) When during the pendency of a suit a portion of land is acquired what would be its effect on the rights of the parties ?
(iii) Whether there was no basis for the inferences drawn regarding the respective rights of the pre- emptors ? And
(iv) Whether there is any bar against the hearing of a case by a Judge who had been a counsel in the case before his elevation ?
6. The learned counsel for the parties, however, made an agreed submission that point No, (iv), reflected above, which is to the effects `whether there is any bar against the hearing of a case by a Judge who had been a counsel in the case before his elevation', may be decided first because! If the decision on the issue vitiates the judgment of the High Court, it would warrant a remand of the case and in these circumstances in alll fairness the remaining points ought to be left unresolved so that the High Court may have unfettered hand in deciding them.
7. I have considered the submissions. The submissions as would be seen carry weight and are to be accepted. This brings me to decide the issue. The sole question which falls for determination is as to whether the judgment recorded by Mr. Justice (Retd.) M. Y. Saraf, for his being the B counsel on behalf of Mst. Feroze Begum before his appointment as a Judge of the High Court, stands vitiated or it would be said that it does not affect the propriety of the report.
8. Before I go to the point I may, at the very outset, state that Mr. Justice Saraf's good faith cannot be impugned and I have no reason to think that in acting, as he did, he was aware of the fact that he, before his elevation to the Bench, had acted as a counsel on behalf of Mst. Feroz Begum.
Advocates elevated to the Bench, after some time, are not expected to recollect or remember all cases they dealt with before their elevation. In my view the conduct of Mr. Justice Saraf is not in any way in departure from the due and orderly administration of justice and it has not been even argued before me that knowing that he was the counsel of a party Mr. Justice Saraf still proceeded to hear and decide the appeal in the High Court.
9. Apart from the above I am of the considered view that it cannot be argued that the mere fact that a Judge happened to be the counsel of a. Party would create in the mind of a Judge such bias as to prejudice his mind1 from rightly adjudicating on the merits of the dispute. Despite this the' matter is essentially one of propriety and good sense because the situation, like the present one.
May look entirely outside the principle that 'justice should not only be done but should manifestly appear to be done'. This golden principle so often said has deep roots in all the judicial systems of the countries and is to be respected. The question, therefore, as to whether the decision made by Mr. Justice Saraf had in fact occasioned failure of justice is not important and hardly arises for consideration.
10, Despite this the fact remains that Mst. Feroze Begum, pre-emptor, especially when she was not present in the Court, may have apprehended that Mr. Justice Saraf might have felt advised to decide the case against her to avoid uncalled for public criticism which he may have to face in the event the matter stands concluded in her favour. My so because MR. Feroze Begum and as a matter of fact every client rightly or wrongly entertains the belief that his counsel would remember him and His case throughout his life, In this view of the matter in this case the principle that 'justice should not only be done but should manifestly appear to be done, may appear to have been impaired and thus adversely affects the legality of of the report under appeal.
11. Let me examine the matter front still another angle. Article 4 of the Code of Conduct for the Judges, of Azad Jammu & Kashmir High Court enjoins upon a Judge of the High Court to refuse to deal with any case I which he has a connection with one party or its lawyer more than the other.
This rule also Stipulates that justice should not only be done but is also to be administered in such a way that it may also seem to have been done. In the instant case. Mr. Justice Saraf, being the counsel of Mst. Feroze Begum, naturally had a better connection with her than the other party. No doubt, as stated earlier, it would be going too far to say that for the simpl reason that Mr. Justice Saraf happened to be the counsel of Mst. Feroz Begum would create in the mind of a Judge such bias as to prejudice hi mind from rightly adjudicating on the merits of the dispute, nevertheles the fact remains that Code of Conduct does not approve decision by a Judg who has a. Connection with a party more than the other and this fact ma give rise to a reasonable apprehension in the mind of any of the parties tha he would not or did not have a fair trial. In this view of the matter also the golden rule that 'justice must not only be done but must manifestly be seen to be done' seems to be adversely affected. For the above stated reasons the judgment cannot sustain.
12. The contention of Ch. Muhammad Sharif Tariq that no such objection was raised before Mr. Justice Saraf while deciding the appeal and that this objection is not available here is without substance. This omission, in my view, would not affect the right of Mst. Feroze Begum in pressing her objection as to the impropriety in the constitution of the Bench especially when Mst. Feroze Begum was not even present in the Court. No agreement by her counsel, if at all there was any, in a matter like this can be held to be binding on her or to preclude her from raising it now. I may repeat here that this would not in the slightest degree cast any reflection on the integrity or impartiality of the Judge. But despite \ this Mst. Feroze Begum stands upon her legal right to call upon me to give effect to the objection which, to me, is valid to hold the constitution of the Bench with Mr. Justice Saraf as illegal and wrong. The judgment, in these circumstances, suffers from such an infirmity that it is to be vitiated.
13. The matter may be looked into still from another angle. Mst. Feroze Begum, after engaging Mr. Justice Saraf as her counsel, would be presumed to give all communications to him for the purpose of his employment as her counsel. Under section 126 of the Evidence Act, which deals with the subject, such communications: a: mot he disclosed by the counsel except the communications made in furtherance of any illegal purpose or to say that any crime or fraud has been committed.
There appears to be a lot of wisdom behind this legislation. The protection granted under this section is absolutely necessary for the administration of justice because if the privilege did not exist a man would hesitate to consult any skilled person or would only dare to tell his counsel half of his case. This is why unrestricted and unbounded confidence in the professional persons is necessary with the legal bar to the effect that such communications shall be kept in secret. All communications conveyed to the counsel by his client under this section are confidential which without his express consent cannot be disclosed or communicated by the counsel in the course and for the purpose of his employment. This view prevailed in `Ayeasha Bi v. Peer-khan Sahib and others'. It has been observed in that case ;- "The privilege is the privilege of the client and not of the legal adviser. The latter is therefore bound to claim the privilege unless it is waived by his client expressly under S. 126 or impliedly under S. 128, e. g., by examining the legal adviser as to the privileged communication. A party cannot be compelled to disclose any confidential communication made to his legal adviser unless he offers himself as a witness. The privilege applies to all communications oral or documentary in the course of and for the purpose of the employment as legal adviser and the privilege continues throughout and does not get terminated by the termination of the litigation or the death of the parties."
14. It is significant that the obligations laid down under section 126 of the Evidence Act continue even after the employment has ceased. So was held in 'Moti Bai v. The State'. Dealing with the point in that case it has been observed :- "It is remarkable that the obligation laid down in this section continues even after the employment is ceased."
15. It would thus appear that there is a legal impediment for a counsel to divulge any communication or information which he happens to receiveE from his client during the course of his employment as such. In this view of the matter, Mst, Feroze Begum is justified to apprehend that whatever communications she may have made to Mr. Justice Saraf as her counsel may have been taken into consideration in dismissing her suit. I say so because it is my experience as an advocate for 27 years that every client may not have good case and thus here the possibility cannot be excluded that Mst. Feroze Begum may have holes in her case which may have been disclosed before Mr. Justice Saraf for plugging if possible. On this view of the matter also the golden rule that 'justice must not only be done but must manifestly seen to be done' is applicable with full force in this case and compels me to discharge the finding recorded by him.
16. In the result without casting any aspersion on the honesty and integrity of Mr. Justice Saraf and while taking into consideration the norms of justice which are to be followed in the even administration of justice I feel myself persuaded to hold that the judgment, for the above-stated reasons, stands vitiated.
' I would, therefore, accept both the appeals, set aside the judgment of the High Court dated 27th December, 1975 and remand the cases back to the High Court with the direction that the appeals may be decided afresh by any of the present learned Judges of the Court. AIR 1954 Mad. 741 AIR 1954 Raj. 241