The negligence of a party's counsel should not be attributed to the party, and the party should not be denied justice as a result.

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 XVIII Rule 17A of the Code 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 applications were moved on behalf of the petitioner. One related to the amendment of the written statement which was allowed against which the plaintiffs 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. Aggrived 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 by him was likely to fall on that ground alone. He further contended that in civil litigation costs are the panacea and the plaintiff-respondents should be compensated by payment of heavy costs. Moreover, the rules of procedure are meant to do justice between the parties and not to hamper the same. On the other hand, the learned counsel for the plaintiffs-respondents, contended that no revision petition was maintainable against the impugned order and in support of his contention, he referred to D.L.F. Housing and Construction Co. (P) Ltd V/s. 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/s. 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 questions 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