High Court of Himachal Pradesh: While deciding a petition filed under Article 227 of the Constitution challenging the order passed by the learned Civil Judge whereby application filed under Section 151 CPC on behalf of the petitioners-defendants for leading additional evidence was dismissed, a Single Judge Bench of Sandeep Sharma, J. did not find any reason to differ with the findings returned by the learned trial court and dismissed the petition.

Respondent-plaintiffs filed a suit for declaration and prohibitory injunction, alleging therein that will dated 20.11.2007, was illegal, null and void and not binding upon the plaintiffs. Defendants, in the application referred to above, contended that inadvertently, they could not examine and produce scribe, marginal witnesses of will dated 19.11.2007 and Registration Clerk of the office of Sub-Registrar while leading the defendant’s evidence, as such, they may be allowed to examine the said persons. Defendants submitted that the mentioned witnesses were material witnesses and their examination was quite necessary for just decision of the case at hand.

The Court discussed the law on the point and held that the power to recall a witness cannot be invoked to fill up omission in the evidence already led by the witness. It cannot also be used to fill up the lacuna in the evidence or to patch up the weak points. In the instant case, there was admittedly no new fact or action of the other party, which had come to the knowledge of the defendants, after closure of their evidence, which would necessitate/justify filing of application for examination of more witnesses.

The Court did not find any reason to differ with the findings returned by learned trial court, while dismissing application under Section 151 CPC, preferred by the defendants. Accordingly, the petition being devoid of merit, was dismissed. [Desh Raj v. Keshav Ram,  2017 SCC OnLine HP 1414, decided on 15.09.2017]

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