l4 + -t- IN THT] IIIGH COURT OF DELHI AT C.R.P.7l2OTT UNION BANK OF INDIA Through: MANJTJ PANDEY NEW DT]LHI ..... Petitioner Ms. Rama Arora, Advocate versLrs ..... Respondent Mr. (appearance not given), Advocate .a''i o Through: CORAM: HON'BI,Ii] MR. JUSTICE P.K. BHASIN ORDER 04.08.2011 I have heard the counsel for the parties. As stated during the course of hearing today, the petitioner is a defendant in a suit for recovery of money filed by respondent no. t herein on the allegations that some money had been withdrawn from her account with the petitioner bank by the bank offrcials in collusion with hel husband, who was arrayed as defendant no. 1 in the suit. The case was at the stage of evidence of the petitioner bank and it had examined one of its officials who was directed by the trial Court to produce some documents. However, the petitioner bank instead of producing the documents chose to file an affidavit of sornc anothcr official of the bank, who according to the counsel for the pctitioner was ths Bank Manager of the concerned branch where respondent no. 1 had her account, to be considered as his cvidence. The name of that witness Shri V.K. Seth, counscl for the pctitioner submitted, was not included in the list of witncsses filed by the bank after framing of the issues. Vide impugned order of the trial Court the affidavit of the said witness Shd V.K. Seth has been ordered to be taken off the record and the petitioner bank is aggrievcd by that order. 'fhis is whal the lcarncd trial Courl has / c.R.P.7/2011 naqc 1 of4 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified S said i1para nos. 3 and 4 of the impugned order whiel rejccting the affidavit of the new defence witness: "Counsel for defendant no. 2 has stated orally that even though the name of the witness Sh. V.K.Seth, Manager of the bank has not been mentioned in the list of witnesses, that does not debar the defendant no. 2 from examining him. A pelusal of order sheet shows that on l2.l0.09,last and final oppoltunity was granted to defendant no. 2 to conclude his DE. I{owever, on the next date itself, i.e. 07.12.09, adjournment was sought on behalf of defendant and on further next date i.e.02.02.10, affidavit of DW V.K. Seth was filed. It is undoubtedly true that the defendant oan exatnine as many number of witnesscs as he wishes, so far as their deposition is relevant and their evidence is vital and not fiivolous or vexatious. Ld. Counsel for the plaintiff has drawn my attention to the affidavit filed by Sh. V.K. Seth, Manager of UBI and affidavit of Sh. Tek Chand, Assistant Manager of UBI. Pcrusal of the same shows that witness Sh. V.K. Seth wants to depose with respect to Ex' D-l to Ex. D-4, Ex. D-7 to Ex. D-9 and Ex. D-5, Hx. D-6, Ex. D-i0 and Ex. D- 11. In his affidavit, Sh. Tek Chand,'Assistant Managcr, UBI has sought to rely upon the same exhibits. It has been stated by counsel for defendant no. 2 that Sh. V.K. Seth, Managcr, UBI wants to depose in the capacity of an official witness and has nothing to say from his personal knowledge as such. The affidavit filed by Sh. Tek chand and sh. v.K. seth are identical. Defendant ho. 2 has not stated as to how the evidence proposed to bc given by V.K. Seth can fortify the claim of the bak any further when both Sh. V.K. Seth and Tek Chand are deposing on the basis of same records of the bank and none is deposing on the basis of personal knowledge. The evidence of DW-2 Sh. 'I'ek Chand is not completc as yet and DW-2 has not given any satisfactory reason in his reply to the applicalion as to why there is need for examination of the Manager of thc bank when the Assistant Manager of the bank is already deposing in the present case, nor does the affidavit of sh. v.K. seth show that he wants to depose with respect to certain new or differcnt facts or can throw light upon certain new aspects in the prcscnt casc or is acquainted with certain new facts pertaining to this case. 4. In the facts and the circumstances of the case and discussions above, ia m of the considered view that there is no need for examination of Sh. V.K. Seth, thc manager of UBI, when Sh. Tek chand, Assistant Manager, UBI is already being examined in the case on the basis of the same documents and official record. It is the duty of the Court to decline the evidence of a witness when the sarne appears to be frivolous and vexatiotts or merely to delay the proceedings of the Court. The application of the plaintiff is c.R.P.7/2011 page2 of 4 accordingly allowed and affidavit of Sh. V.K. Seth is to be put off the recold.T) It has been contended by learned counsel for the petitioner bank that the evidence of Shri V.K. Seth is rnaterial for proper adjudication of the controversy between the parties and should not have been rejected just because his name was not included in the list of the *itnesses and sorne part of his affidavit contained averments which wele similar to what had bccn stated by the witness of the bank, who had already been examined. Learned counsel for the respondent, on the other hand, submitted that the levision petition itself is not maintainable in view of the proviso to sub-section 1 of Section 115 of the Code of Civil Procedure and furthsr that there was no new fact whatsoever stated by Shri V.K. Seth which had not bcen stated by the witness already examined by the bank and, therefore, learned trial Coult has rightly refused to accept the affidavit of Shri V.K. Seth. Section 115 of the Code of Civil Proccdure reads: ('Bsvlslen- t(l)] The High Couft rnay call for thc record of an case which has been decided by any Court subordinate to such l-ligh Court and in which no appeal lies thereto, and if such suborditlate Court appears-- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdictiott so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, thc }{igh Couft may make such order in the casc as it thinks fit : Provided that the High Court shall no, under this scction, vary or reverse any order rnade, or any order deciditrg au isstte, in tlte course of a suit or other proceeding, except wltere the order, if it had been rnade irr favour of the pafty applying for revision, would have filally disposed of the suit or other proceedings. (2) 'l'he }ligh Court shall not, under this section, vary or reverse any decree or ordcr against whiclr an appeal lies either to the lligh Courl or to any Court subord inate tltereto. (3) A revision shall not operate as a stay of srrit or other proceeding ( c.R.P.7l20rr rrage 3 of 4 before the Court except where such suit or other proceeding is stayed by the High Court. Explanation.-In this section, the expression "any case which has been decided" includes any order nrade, or any order deciding an issue in the course of a suit or other proceeding." I find force in the argument of the lealned counsel for the respondent that the revision petition is liable to be rejected in view of the proviso to sub-section 1 of Section 115 CPC to the effect that no order passed in a suit shall be set aside in revision unless the impugned order would have disposed of the suit finally in case it had been passed in favour of the revisionist. The impugned order is an interlocutory and even if it had been passed in favoru of the petitioner it would not have disposed of the suit, one way or the other. So, I am not inclined to entertain this revision petition on this ground alone. This revision petition is accoldingly dismissed. AUGUST O4,2OI1 pg/sh P.K. BHASIN, J c.R.P.7/2011 paue 4 of 4