1. The defendant-petitioner has filed this revision petition against the order of the trial court dated September 27, 1980, whereby his application under Order XIII Rule 17A of the ode of Civil Procedure (hereinafter called the Code), for permission to allow additional evidence was dismissed.
2. The litigation between the parties is pending for the last more than three years. In the litigation, one of the issues between the parties is; whether Shri Asa Ram, deceased, executed a valid will in favour of defendant No. 2, Om Pal? If so, to what effect? The defendant--petitioner, in order to prove this document, examined the scribe of the will and also one of the attesting witnesses, Jagdish Chand, and then closed his evidence on September 7, 1979. On February 6, 1980, two application were moved on behalf of the petitioner. One related to the amendment of the written statement which was allowed against the plaintiff came up in revision to this Court, which was ultimately dismissed. However, meanwhile, the proceedings in the trial Court were got stayed by the plaintiffs in that revision petition. After the revision petition was dismissed by the High Court the other application under Order XVIII Rule 17A of the Code, was dismissed by the trial Court by the impugned order, dated September 27, 1980. In that application the petitioner had sought the permission of the court to produce Jagdish Chand an attesting witness of the will, on the point of attestation, as no such question could be put to him inadvertently earlier by the learned counsel for the petitioner. That application was contested by the plaintiffs-respondents. The trial Court dismissed the application mainly on the ground that no sufficient ground for allowing additional evidence had been made out. Aggrieved against the same, the defendant-petitioner has come up in revision to this court.
3. The learned Counsel for the petitioner contended that it was the negligence, if any of the learned counsel for the defendant, in the trial Court, who did not examine the attesting witness Jagdish Chand on the point of attestation, and for the negligence of the counsel, the party should not be allowed to suffer. Moreover, out of the two attesting witnesses, the other witness is dead, and, therefore, the only witness Jagdish Chand is necessary to be examined on the question of attestation, otherwise, the will set up him was likely to fail on that ground alone. He further contended that in civil litigation costs are the panacea and the plaintiff -respondent should be compensated by payment of heavy costs. Moreover, the rules of procedure are meat to do justice between the parties and not to hamper the same. On the other hand, the learned counsel for the plaintiffs-respondent, contended that no revision petition was maintainable again the impugned order ad in support of his contention, he referred to D. L. F. Housing and construction Co. (p) Ltd. V. Sarup Singh, AIR 1971 SC 2324. He further contended that negligence of a party is not a sufficient ground for allowing the production of additional evidence and in support of this contention, he placed reliance on Ghansiram v Municipal Board, Bhopal, AIR 1956 Bhopal 65.
4. After hearing the learned counsel for the parties, at great length, I am of the considered opinion that the impugned order is liable to be set aside as the trial Court had acted illegally and with material irregularity in the exercise of its jurisdiction, resulting in the failure of justice Rules 17 and 17-A of order XVIII of the Code, are reproduced below:--
'17. Court may recall and examine witness. The Court may at any stage of a suit recall any witness who has been examined and may subject to the law of evidence for the time being in force, put such question to him as the Court thinks fit.'
17-A Production of evidence not previously known or which could not be produced despite due diligence.
Where a party satisfies the Court that, after the exercise of due diligence any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just'
Under Rule 17, reproduced above, the Court may recall any witness at any stage of the suit, who has been examined earlier and may put him such question as the Court thinks fit. I the present case, even the provisions of R.17 could be invoked for recalling the attesting witness Jagdish Chand. Even from the language employed in Rule 17-A, it is clear that a party may e allowed to lead additional evidence if he satisfies the court that any evidence could not be produced by him at the time when he was leading his evidence. In any case, issue No. 2 reproduced above, relates to the execution of the wil. A will can only be proved by the persons who attested the same. Out of the two attesting witnesses, one is said to be dead. The other witness, when appeared in the witness-box earlier, was not examined by the counsel for the defendant-petitioner on the point of attestation. Under these circumstances, the lapse, if any, is on the part of the counsel for the defendant -petitioner, as it was the duty of the counsel to examine the said witness on the point of attestation because it was the requirement of law. A party should not be allowed to suffer for any omission of lapse on the part of his counsel when it relates to the requirement of the any law. Moreover it is well known that the rules of procedure are meant to advance the cause of justice. In civil litigation for the lapse on the part of one party, the other party can be easily compensated by payment of costs. It may be mentioned here that the negligence, if any in the present case, cannot be attributed to the party concerned, but to his counsel.
5. Under these circumstances, this revision petition is allowed and the impugned order is set aside and the application of the defendant petitioner to recall Jagdish Chand witness, is allowed on payment of Rs. 300/- as costs.
6. In view of the above discussion, Civil Miscellaneous Application No. 3696-C.II of 1980, stands dismissed.
7. Petition dismissed.