JUDGMENT Kamlesh Sharma, J.—This Revision petition is directed against the order dated 22-8-1991 whereby the application under Order 18, Rule 17-A, C. P C. of the petitioners-plaintiffs for additional evidence was dismissed. 2. The petitioners-plaintiffs are seeking permission to examine one witness Basti Ram son of Chananoo Ram by way of additional evidence. Basti Ram is one of the marginal witnesses of the will which is subject matter of dispute in the suit being tried by the Senior Sub-Judge. The first application dated 30-8-1990 filed by the petitioners-plaintiffs was allowed by the trial Court vide its order dated 7-9-1990, which was set aside by this Court on 31-10-1990 on the ground that it was not a speaking order. The application was also found vague and not strictly in accordance with Order 18, Rule 17-A, C. P. C. However, the petitioners-plaintiffs were permitted to file a fresh application and the trial Court was directed to decide it on merits- It was in this background that second application dated 16-11-1990 was filed by the petitioners-plaintiffs which stands rejected by the impugned order, on the ground that the reason given in the second application for not producing Basti Ram as their witness earlier is contrary to the reason given in the first application. In the first application, the reason was that they were under the impression that the witness being marginal witness will be examined by the respondents-defendants but in the second application the additional reason given is that they did not know about the whereabouts of the witness till they closed their evidence It was after due diligence that they could locate him and wanted to produce him by way of additional evidence. According to the trial Court "this plea was not convincing as the address of the witness is on the will already on the record." 3. I have heard the learned Counsel for the parties and gone through the record- Sh. Naresh Sood appearing vice learned Counsel for the petitioners-plaintiffs, submits that the Senior Sub-Judge has dismissed the application on wrong grounds without applying the well settled principles of allowing additional evidence. According to Sh. Kuthiala the requirements of Order 18 Rule 17-AC. P. C. are satisfied on the averments made in the application and additional evidence of Basti Ram, one of the marginal witnesses to the will, may be allowed in the interest of justice.
According to Sh. Kuthiala the requirements of Order 18 Rule 17-AC. P. C. are satisfied on the averments made in the application and additional evidence of Basti Ram, one of the marginal witnesses to the will, may be allowed in the interest of justice. He urges that if the petitioners-plaintiffs are found negligent, the respondents-defendants may be compensated by awarding reasonable costs. On the other hand, Sh, Bhupender Gupta, learned Counsel for the respondents-defendants, has supported the impugned order and has pointed out that the reason given in the application for not producing Basti Ram as their witness is prima facie incorrect as his address could be ascertained by the petitioners-plaintiffs from the will on record He has relied upon the judgment in Joginder Singh v Baru Mal, 1990 (1) SLJ 469 to make his submissions that additional evidence should not be allowed if requirements of Order 18 Rule 17-A C. P. C. are not strictly satisfied. 4. The judgment in Joginder Singhs case (supra) is on its own facts where the Court had found that the plaintiff could produce expert witness if he had exercised due diligence. In the present case, the trial Court has disallowed the prayer of additional evidence solely on the ground that the reasons given in the earlier application and the present application are contradictory and are also not correct. The trial Court has not considered whether either of the reasons given in the application constitutes a ground for allowing additional evidence under Order 18, Rule 17-A, C. P. C. Under this provision, discretion has been given to the Court to allow evidence even after it is closed by the parties for two reasons. Firstly, if any evidence was not within the knowledge of a party at the time that party was leading its evidence. Secondly, if the party could not produce that evidence at the time it was leading its evidence, But for both these reasons, a party must exercise due diligence. In the present case the second reason does exist as the petitioners-plaintiffs could not produce Basti Ram under the impression that he will be examined by the respondents-defendants being one of the marginal witnesses of the will and this they had done after exercising due diligence.
In the present case the second reason does exist as the petitioners-plaintiffs could not produce Basti Ram under the impression that he will be examined by the respondents-defendants being one of the marginal witnesses of the will and this they had done after exercising due diligence. Above all, Order 18 Rule 17-A C. P. C. is a rule of procedure which is meant to advance the cause of justice and not to thwart it. These provisions are not to be interpreted in a manner which defeats the ends of justice. Even if it is found that a party has been negligent in not producing evidence which is necessary for deciding the dispute between the parties, in the ends of justice and fair play such evidence should be allowed and the opposite party can be compensated by payment of costs. In the present case, even if one of the reasons given In the application is incorrect, permission for producing additional evidence should not be refused on that ground alone. In order to decide whether the will in question was a genuine document, evidence of one of the marginal witnesses not produced by the respondents-defendants, propounders of the will, is necessary to advance the ends of justice. 5. In the result, the Revision petition succeeds the order dated 22-8-1991 of Senior Sub-Judge, Solan, is set aside and the application under Order 18 Rule 17-A C. P. C for additional evidence of the petitioners is allowed subject to payment of Rs 500 as costs. There is no order as to costs of this petition. The records be sent to the trial Court immediately and parties are directed to appear before it on 15-1-1992. Revision petition allowed.