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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF DECEMBER 2015
BEFORE
THE HON’BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.32762-32765 OF 2013 (GM-RES)
BETWEEN:
Mr. V. Damothiran,
Son of Mr. A. Venkatesan,
Aged 37 years,
Residing at No.124/1-26,
Venkatapura, 2nd Cross,
Koramangala,
Bangalore 560 034.
…PETITIONER
(By Shri H.N.Narendra Dev, Advocate)
AND:
1. Karnataka Medical Council (KMC),
No.70, 2nd Floor,
Vaidyakeeya Bhavan,
K.R.Road,
Basavanagudi 560 004,
Represented herein by its President.
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2. Dr. Annamma Thomas,
Wife of Dr. Reji Koshy Thomas,
Aged 49 years,
St. John’s Medical College and Hospital,
Sarjapur Road,
Bangalore 560 034.
3. Prof. Gopinath N Shenoy,
No.199, G.K.Marg,
Lower Parel,
Mumbai 400 013.
[respondent no.3 impleaded
Vide court order dated 18.11.2014]
… RESPONDENTS
(By Shri D.S.Hosmath, Advocate for Respondent No.1;
Shri Narayana Reddy .M, Advocate for Respondent No.2;
Shri Gopinath M Shenoy, for Respondent No.3)
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These Writ Petitions filed under Articles 226 and 227 of the
Constitution of India, praying to quash the order dated May 23,
2013 passed by the first respondent in ENQ.No.29/12 vide
Annexure-C and quash the order dated June 27, 2013, passed by
the first respondent in ENQ.No.29/12 vide Annexure-J and to
expunge the recording of the depositions of the petitioners in the
proceedings of May 23, 2013 as recorded by the first respondent,
in ENQ.No.29/12, vide Annexure-C.
These Writ Petitions having been heard and reserved on
31.10.2015 and coming on for pronouncement of Orders this day,
the Court delivered the following:-
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ORDER
Heard the learned Counsel for the petitioner and the learned
Counsel for the respondents.
2. The petitioner was married to Smt.Rani, who is said to
have been a patient of the second respondent, a Gynaecologist. It
is alleged that on account of negligence on the part of the said
respondent in performing a Laparoscopic procedure on Smt Rani,
she is said to have died after much suffering, on 28.7.2013. On a
complaint by the petitioner before the jurisdictional police, apart
from initiating criminal proceedings against respondent no.2, the
police are said to have forwarded the case papers to Karnataka
Medical Council, Bangalore, (Hereinafter referred to as the
‘KMC’, for brevity), which is said to have initiated suo motu
proceedings and an enquiry is on against respondent no.2 before
the said authority.
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It is stated that the parties were represented by counsel
before the KMC and the pleadings are complete. The petitioner is
said to have filed an affidavit in evidence and the matter was
scheduled for his cross-examination as on 23.5.2013. On that day,
the third respondent is said to have filed a power of attorney to
enter appearance on behalf of respondent no.2. The petitioner's
counsel is said to have protested and had pointed out that an
application under Section 32 of the Advocates Act, 1961
(Hereinafter referred to as the ‘1961 Act’, for brevity) or under
Order III Rule 2, of the Code of Civil Procedure, 1908
(Hereinafter referred to as the ‘CPC’, for brevity), was not
forthcoming, to enable the said respondent to enter appearance.
The said objection having been overruled by the KMC, the
witness was partly cross-examined and the matter stood adjourned
to 27.6.2013.
It transpires that the petitioner had, by the next date, learnt
that the third respondent was a practising Obstetrician and
Gynaecologist and that he conducts cases of medical negligence
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across various consumer fora and State Medical Councils and has
adopted it as his profession. This is admitted by the third
respondent himself in published articles posted on the internet.
The petitioner had hence filed an interlocutory application
on 27.6.2013, seeking that the power of attorney filed by the third
respondent be rejected and to expunge all action and proceeding
undertaken pursuant thereto. The KMC had merely adjourned the
matter for further cross examination on 1.8.2013. As this was a
virtual rejection of the petitioner's prayer, the present petition is
filed.
3. It is contended that where a person, being a power of
attorney seeks to represent a party to a proceeding on a standalone
basis and not as a matter of practice, such party ought to file an
application under Section 32 of the 1961 Act, and the court may
permit such representation, if deemed appropriate. That the first
respondent has, vide impugned order dated 23.5.2013, permitted a
power of attorney holder, who is not an advocate, to represent the