Chameleon Resources Limited vs Tata Tea Limited
2012 Latest Caselaw 523 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 25.01.2012


+     CM(M) 33/2010 & CM Nos.412/2010 & 3618/2010 AND
      CM(M) 42/2011 & CM No. 771/2011


CHAMELEON RESOURCES LIMITED         ..... Petitioner
                Through  Mr. Arvind Shah, Adv.

                    versus


TATA TEA LIMITED                                   ..... Respondent
                            Through     Mr. Samir Sagar Vashishta,
                                        Advocate.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

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 In view of this aforenoted factual scenario, the petition

being CM (M) No. 33/2010 which has assailed the interim orders

dated 19.03.2008 and 10.12.2009 has now become infructuous as

the suit finally stand dismissed; this suit had been dismissed on

merits; it is the 'decree' within the meaning of Section 2 (2) of the

Code and the regular first appeal has to be filed against the said

judgment and decree which has admittedly not been filed. The

remedy sought by the petitioner was seeking a recall of the order

dated 03.03.2010 which was not by way of a review petition but

by an application under Section 151 of the Code. This application

had been dismissed on 05.05.2010. These two orders i.e. order

dated 03.03.2010 and order dated 05.05.2010 are the subject

matter of the petition being CM(M) No. 42/2011.

4 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.

5 The judgment dated 03.03.2010 suffers from no infirmity.

There was no evidence in the trial Court and as such in these

circumstances there was no option left with the Court but to

dismiss the suit which had accordingly been dismissed. The order

recalling this judgment also could not be through a remedy by

way of an application under Section 151 of the Code; no appeal or

review of the said judgment had admittedly been filed. The Court

had in the factual scenario of the present case rightly not invoked

its inherently discretionary powers. The judgment in Mulraj

(Supra) relied upon by learned counsel for the petitioner is

distinct on its facts and was inapplicable.

6 Counsel for the respondent has also drawn attention of this

Court to the averments made in the present petition i.e. CM(M)

No. 42/2011 where the petitioner has contended that a written

application for adjournment had been filed by the petitioner in the

trial Court on 21.01.2010 which from the perusal of the order

dated 21.01.2010 is not substantiated; there was no such

application. In the petition, it has further been stated that on

03.03.2010, the junior counsel of the petitioner had informed the

trial Court about the stay order passed by the High Court on

03.03.2010 and requested for an adjournment but his request had

not been accepted; this averment in the petition is clearly a lie;

before this Court, learned counsel for the petitioner has fairly

conceded that the order dated 03.03.2010 passed by the High

Court staying the proceedings in the trial Court was not and could

not be communicated to the trial Court on the same day.

7 These petitions have been lingered on; they are against

orders passed as way back as the year 2008; they are an abuse of

the process of the Court. Petitions are dismissed with costs

quantified at Rs.10,000/-.

                                        INDERMEET KAUR, J
JANUARY       25, 2012
A