ASHOK AGGARWAL Vs. REENA AGGARWAL

JUDGEMENT

(1.) By way of present petition filed under Article 227 of the Constitution of India, there is challenge to order dated 25th May, 2010, passed by Additional District Judge, Delhi. Vide impugned order, petitioners' evidence was closed.

(2.) Brief facts as per petitioners lists of dates and events are that in April, 2003, respondents no. 1 and 2 herein (petitioners in trial court) filed suit for possession, recovery of rent, damages and permanent injunction against present petitioners and others (defendants in trial court). During the trial respondents examined Mr. Pawan Aggarwal (PW1)and after his examination-in-chief, matter was kept for cross-examination. At that point of time, petitioners were constrained to change their counsel. The new counsel due to paucity of time, complexities of various inter se litigations, non adjustment of diary through his associates requested the trial court to adjourn the matter. Trial court without considering the requests on behalf of petitioners, closed the opportunity of the petitioners to cross-examine PW-1 vide its order dated 27th January, 2010. Petitioners thereafter, filed an application for recalling of order dated 27th January, 2010. Trial court without issuing notice on this application, kept the same for 25th May, 2010. On that date, vide impugned order trial court closed the evidence of petitioners. It is contended by learned counsel for petitioners that in the absence of opportunity to lead evidence of the petitioners and also in the absence of cross-examination of PW, the matter would become a one side affair and the petitioners should not suffer for no-fault on their part. Trial court wrongly closed the right of the petitioners to cross-examine the witness. It is also contended that no order was passed on the application of the petitioners for recalling of order dated 27th January, 2010 for cross-examining the witness. . 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. . In Waryam Singh and another vs. Amarnath and another, 1954 AIR(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, 1951 AIR(Cal) 193', 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."

(3.) 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. As apparent from the record, application for recall of PW-1 for the purpose of cross-examination has not yet been disposed of by the trial court and the same has been kept pending which is apparent from order dated 14th May, 2010 passed by trial court. Relevant portion read as under; "At this stage, counsel for the defendant presses his application moved earlier to cross-examine the plaintiff's witness. It is stated that copy of this application is on the file. Ld. Counsel for the plaintiff shall collect copy of this application in evening from the Ahlmad of this court. Plaintiff shall file reply to this application on the next date of hearing. However, it is made clear to all the parties that this application shall be disposed of after conclusion of DE of DW-1."