Sudeshna Bhattacharya v. Kamal Dutta & Ors

V.B.GUPTA, J. ab

* HIGH COURT OF DELHI : NEW DELHI CM (M) No. 1142/2010 % Judgment reserved on: 06th September, 2010 Judgment delivered on: 08th ,September, 2010 Dr. Sudeshna Bhattacharya Manisha X-Ray & Ultrasound Clinic, Manisha Pathology Clinic, Manisha Imaging P-10B, C.I.T Road, Kolkata (West Bengal) ….Petitioner Through: Mr. Purbali Bora, Adv. Versus 1. Dr. Kamal K. Dutta, 605, Old Forge Lane, Franklin Lakes, New Jersey 07417, U.S.A. Also at: Tanya Diagnostic Centre Pvt.Ltd. K-61, Basement, Jangpura Extenssion, New Delhi-14. 2. M/s Tanya Diagnostic Centre Pvt.Ltd. K-61, Basement, Jangpura Extenssion, New Delhi-14. 3. Sh. Mukul Chandra Dass, B-25/1-2, Congress Polly, P.O. Bansdrongi, PS. Regent Park, Kolkata-700070. ….Respondents Through: Nemo. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Present petition has been filed under Article 227 of the Constitution of India in which following prayers have been made; (a) Restore the application for re-calling of order dated 28/8/2008 which has been dismissed vide order dated 7/7/2010 by Additional District Judge, Delhi and; (b) Permit the petitioner to lead her evidence. 2. Brief facts are that respondent no. 1 (petitioner before trial court), filed a suit for damages to the tune of Rs.5,10,000/- against present petitioner (defendant no. 2 before trial court) and respondent no. 3 (defendant no. 1 before trial court). 3. Petitioner has been contesting the suit and has filed her written statement. On 28th August, 2008, counsel for petitioner filed an application for withdrawal of the vakalatnama, which was dismissed by trial court, vide order dated 28th August, 2008. 4. Thereafter, petitioner filed application for recalling of order dated 28th August, 2008, which was also dismissed, vide order dated 7th July, 2010 passed by the trial court. 5. It is contended by learned counsel for petitioner that on 28th August, 2008, petitioner could not appear since this date was not known to her. Similarly, non appearance of her counsel on 7th July, 2010 was on account of ill health of the counsel. Counsel has requested one of his fellow colleague to appear in the trial court and seek an adjournment, but unfortunately, he could not appear in time. 6. It is further contended that matter is pending before the trial court since 28th August, 2008 for final arguments and if petitioner is given opportunity to lead evidence, no prejudice would be caused to the opposite party. 7. Present petition has been filed under Article 227 of the Constitution of India. It is well settled that jurisdiction of this Court under this Article is limited. 8. In Waryam Singh and another vs. Amarnath and another, AIR 1954, SC 215, the court observed; "This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in – "Dalmia Jain Airways Ltd. V. Sukumar Mukherjee", AIR 1951 Cal 193 (SB) (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors." 9. In light of principles laid down in the above decision, it is to be seen as to whether present petition under Article 227 of the Constitution of India against impugned order is maintainable or not. 10. As apparent from record, application for recall of order dated 28th August, 2008 was filed on 11th May, 2010, which means about twenty months after the order was passed. 11. Relevant portion of impugned order read as under; "28.8.2008 Present: Shri Kesha Ranjan, proxy counsel for Shri K. S. Pathania, counsel for plaintiff. Shri Umesh Gupta, counsel for defendant no.1. Shri Kirat Singh counsel for defendant no. 2. He has moved an application for withdrawal of the vakalatnama on the ground that defendant is not giving him any further instructions and he has tried