Delhi High Court
Shri Mohd. Razqeen & Ors. vs Smt. Iqbal Bana @ Balo on 23 July, 2010
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
CM (M)No. 921/2010
% Judgment reserved on: 22nd July, 2010
Judgment delivered on: 23rd July, 2010
1. Shri Mohd. Razqeen,
S/o Late Haji Mohd. Ashqueen.
2. Shri Mohd. Shajuddin,
S/o Late Haji Mohd. Ashqueen.
3. Ms. Qamar Jahan
D/o Late Sh. Haji Mohd. Ashqueen.
All R/o 1933, Gali Rajan,
Kucha Challan, Darya Ganj,
New Delhi-110002.
....Petitioners
Through: Ms. Alka Srivastava with Mr.
Shafiullah, Adv.
Versus
Smt. Iqbal Bano @ Balo,
R/o 95/25, Haleem Compound,
Chamda Mandi, Nai Sarak,
Kanpur, U. P.
....Respondent
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
CM (M) No.921/2010 Page 1 of 5
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, challenging order dated 8th July, 2008, passed by Civil Judge,
Delhi, vide which application of petitioners seeking permission to cross-
examine PW Iqbal Bano i.e. respondent, was dismissed.
2. Suit filed in the year 2004 by respondent against present petitioners,
is pending in the Court of Civil Judge.
3. It is contended by learned counsel for petitioners that on 17th
November, 2007, counsel for petitioners could not appear and cross-
examine the defendant, as he was suffering from sickness and severe throat
infection and right of petitioners to cross-examine the defendant was closed.
Thereafter, petitioners filed an application for seeking permission to cross-
examine the respondent, but the same was dismissed vide impugned order.
4. It is further contended by learned counsel for the petitioners that,
cross examination of respondent is essential for ends of justice especially
when petitioners have very good defence to demolish respondent‟s case. It
was due to sickness, counsel for petitioners could not cross-examine the
respondent.
5. 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.
6. 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."
7. 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.
8. Impugned order was passed on 8th July, 2008, whereas, present
petition has been filed on 20th July, 2010 i.e. more than two years after the
impugned order was passed. There is no explanation as to why there is
delay of two years in filing of this petition. Filing of present petition after
more than two years of the passing of order itself shows that the effort of
the petitioners is to prolong the proceedings and not to allow the
proceedings to proceed.
9. Even otherwise, order of the trial court is well reasoned and no
illegality can be found in the same. It is the petitioners who have been
delaying the matter and did not cross-examine the respondent, inspite of
various opportunities granted to the petitioners, as apparent from impugned
order. Relevant portion of impugned order reads as under;
"I have perused the order sheet despite last
opportunity, defendant did not cross examine the
plaintiff on 17.11.2007 and cost was also not paid on
17.11.2007 and right of defendant no. 1 to 4 to cross
examine the plaintiff was closed on 17.11.2007 Proxy
counsel for defendant no. 1 to 4 had appeared and he
sought adjournment on the ground that the counsel is
not available and in the present application, it is stated
that his counsel was not well on that day and hence
plea taken by the answering defendants is not tenable.
Even otherwise no medical certificate of the counsel
has been filed along with the present application. Even
the application is not supported with an affidavit.
In view of the submissions made above, the
present application is dismissed being devoid of
merits."
10. In Puja Kakar Vs. Arjun Kakar, 2010 (115), DRJ 224, this court
observed;
"A host of frivolous applications are moved and a lot
of time first of trial Court and then the High Court is
wasted in entertaining petitions. A case which
normally should not take more than one year in
decision keeps dragging for years and years. The
witnesses keep on appearing in the Courts and
adjournments are granted in the name of strike or in
the name of elections or in the name of personal
difficulty of the Senior Counsel or in the name of
personal difficulties of briefing Counsel or because the
two Counsel agree for adjournment. This whole
culture of adjournment is one of the big reasons that a
case or a petition which should be decided in two or
three hearings keeps pending for more than 100
hearings."
11. Hence, after going through the record, it is apparent that it is the
petitioners who are delaying the matter and they themselves are to be
blamed for not cross examining respondent. Moreover, petitioners even did
not pay the adjournment costs, imposed by the trial court.
12. Thus, there is no illegality, infirmity or irrationality in the impugned
order passed by the trial court. Present petition is frivolous and meritless.
The same has been filed just to waste the time of this Court. Accordingly, it
is dismissed with costs of Rs.5000/- (Five Thousand).
13. Petitioners are directed to deposit the costs with Registrar General of
this court, by way of cross-cheque within four weeks from today.
14. List for compliance on 30th August, 2010.
23rd July, 2010 V.B.GUPTA, J.
ab
