CHAMELEON RESOURCES LIMITED Vs. ATA TEA LIMITED

JUDGEMENT

(1.) THIS order shall dispose of both the aforenoted petitions. The impugned orders are dated 19.03.2008, 10.12.2009, 03.03.2010 and 05.05.2010.

(2.) THIS case has a checkered history. Present suit has been filed by Chameleon Resources Ltd. against Tata Tea Ltd. for recovery of certain amounts. In the course of proceedings, an affidavit by way of evidence of the plaintiff namely David Allan Tucker, a citizen of England had been filed. THIS affidavit was filed in October, 2005. On 04.10.2005, this Court had recorded that the affidavit filed by David Allan Tucker has been furnished to the defendant's counsel; it had been noted that the witness is not present as he is a resident of England and since he is likely to come in the month of November, 2005, the matter may be adjourned. On 03.05.2007 i.e. almost two years later, an application had been filed by the plaintiff seeking cross- examination of this witness through the facility of video conferencing. THIS was an application under Section 151 of the Code of Civil Procedure (hereinafter referred to as the 'Code'). The averments made in this application have been perused. It states that David Allan Tucker is ready and willing to be cross- examined but being a resident of England, he be permitted to be cross-examined through video conferencing. THIS application was opposed. Vide order dated 19.03.2008, this application had been dismissed. The Court had noted that the witness in the course of cross-examination has to be confronted with various documents and thus it is not feasible that cross-examination of this witness through video conferencing be permitted. THIS prayer was accordingly declined on 19.03.2008. A review petition had been filed against this order dated 19.03.2008 which was dismissed on 10.12.2009. The petition being CM (M) No. 33/2010 was filed against these orders. Admittedly no interim order was passed in this petition. The case had proceeded in the trial Court. Matter was fixed for final arguments and on 03.03.2010, the judgment was pronounced by the trial Court dismissing the suit of the plaintiff. An application seeking recall of this order was filed on 21.04.2010 which was dismissed on 05.05.2010.

(3.) LEARNED counsel for the petitioner has drawn attention of this Court to an order passed by this Court on 03.03.2010 which had stayed the proceedings in the trial Court. Admittedly this order is dated 03.03.2010 which was also the date when the trial Court had dismissed the suit. LEARNED counsel for the petitioner has fairly conceded that the order passed by this Court on 03.03.2010 staying the proceedings in the trial Court could not and was not communicated to the trial Court on the said date i.e. on 03.03.2010 and as such the trial Court proceeding to deal with the case on its merits on 03.03.2010 has committed no illegality. His vehement contention is that an injustice has been suffered by him and injustice could have been cured only by a recall of that order and for this proposition, he has placed reliance upon a judgment of this Court reported as AIR 1967 SC 1386 Mulraj Vs. Murti Rahunath Maharaj. There is no dispute to the legal proposition that the inherent powers available with the Court can do justice wherever the Court deems it fit to be a case of injustice; this is a discretionary power which is available with the civil courts. However, each case has to be viewed in its factual scenario; checkered history of this case has been detailed as supra. That apart the suit was dismissed on merits vide judgment and decree dated 03.03.2010 against which admittedly no appeal has been filed; the remedy available to such a litigant was either to file an appeal or seek a review of the said judgment which would be within the parameters of Order 47 of the Code. None of this was adhered to. Instead inherent powers were sought to be invoked under Section 151 of the Code. A specific remedy being available to the petitioner, he chose not to avail this remedy.