Delhi High Court
Ratish Bajaj vs Harbans Lal Bajaj & Ors. on 11 February, 2013
Author: Pratibha Rani
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 11th February, 2013
+ CM(M) 993/2012 and C.M.No.15428/2012 (stay)
RATISH BAJAJ ..... Petitioner
Through : Mr.Pramod Ahuja, Advocate.
versus
HARBANS LAL BAJAJ & ORS. ..... Respondents
Through : In person.
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
%
PRATIBHA RANI, J. (ORAL)
1. The present petition has been preferred by the petitioner under
Article 227 of the Constitution of India feeling aggrieved by the order
dated 3.07.2012 whereby the prayer of the petitioner moved under
Section 151 CPC, to examine his brother Mr.Vinod Bajaj as defence
witness, was declined by the Court for the following reasons:-
(i) The case is at the stage of final arguments
(ii) The plaintiff (respondent herein) is a senior citizen aged
about 79 years and fighting this litigation for the last 12
years
(iii) The application has been moved after lapse of 7 ½ years
from the date when D.E was closed
(iv) No explanation was given as to how all of a sudden
Mr.Vinod Bajaj, who is real brother of the petitioner, has
become a material witness
(v) No list of witnesses was filed
(vi) The application is a method to delay the process.
2. Mr.Pramod Ahuja, learned counsel for the petitioner submitted
that Mr.Vinod Bajaj is a material witness in the case. He further submits
that earlier in the application under Section 151 CPC (placed at page-
85 of this petition), in paras-4 & 5, specific averments have been made as
to how the petitioner has come to know that Shri Vinod Bajaj is very
important witness and needs to be examined to resolve the controversy
between the parties once for ever. It is further submitted by learned
counsel for the petitioner that the respondent is uncle of the petitioner,
whereas the witness required to be examined is the real brother of the
petitioner and one opportunity may be granted to the petitioner subject to
any reasonable terms & conditions to examine him as a witness in
defence.
3. The respondent, who appears in person, strongly opposes the
application contending that this application is nothing but to delay the
disposal of the case and he being a senior citizen had been litigating for
more than a decade. He prayed for dismissal of the application in the
given facts and circumstances of the case so that suit can be disposed of
expeditiously.
4. The grounds on which prayer has been made by the petitioner to
examine Shri Vinod Bajaj as a witness in this case are also mentioned in
para-3 of the application, which are reproduced as under:-
"3. That at the time of preparing the arguments the defendant
No.1 & his counsel realized that the evidence of Shri Vinod Bajaj
is very much required in this matter to resolve the controversy and
for the adjudication of the matter between the parties, it is
necessary to call Mr.Vinod Bajaj who is very important witness."
5. Taking into consideration that there is no averment in the
application about any strained relationship between the two brothers and
the litigation being amongst the family members as the petitioner is
nephew of the respondent, the learned Trial Court has rightly declined
his prayer to examine Shri Vinod Bajaj in defence after an inordinate
delay of 7 ½ years from the date when the defence witness was closed.
6. It is settled law that inherent power under Section 151 CPC to
allow additional evidence cannot be invoked just to fill up the lacunae
left in the case of any party or to defeat the claim of a senior citizen by
allowing the litigation to continue for an infinite period on one pretext or
the other. Merely because at the stage of final arguments, the petitioner
became more wise to realise as to who is material witness, in itself is no
ground to allow the prayer of the petitioner to examine his brother in
defence.
7. In M/s. Estralla Rubber vs. Dass Estate (Pvt.) Ltd. AIR 2001 SC
3295, the Apex Court held as under:-
"...........Exercise of power under Article 227 of the Constitution
of India and interfering with the orders of the courts or tribunal is
restricted to cases of serious dereliction of duty and flagrant
violation of fundamental principles of law or justice, where if
High Court does not interfere, a grave injustice remains
uncorrected. It is also well settled that the High Court while
acting under this Article cannot exercise its power as an
appellate court or substitute its own judgment in place of that of
the subordinate court to correct an error, which is not apparent
on the fact of the record. The High Court can set aside or ignore
the findings of facts of inferior court or tribunal, if there is no
evidence at all to justify or the finding is so perverse, that no
reasonable person can possibly come to such a conclusion, which
the court or Tribunal has come to."
8. Finding no illegality, perversity or infirmity in the impugned
order, the present petition is hereby dismissed. All pending applications
are also dismissed.
PRATIBHA RANI, J
FEBRUARY 11, 2013
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