IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.453 of 2010 Date of decision: 7.4.2011 Praveen Kumar and ors. …. Petitioners Versus Naranjan Singh through LRs and anr. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioners: Mr.Deepak Kaushal, Advocate. For the respondents: Mr.Rupinder Singh, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) 1. This petition is directed against the order dated 20.11.2010 passed by the learned Civil Judge (Jr.Division), Nahan, District Sirmaur whereby he dismissed the application filed by the petitioners (hereinafter referred to as the ‘plaintiffs’) for permitting them to lead rebuttal evidence. 2. Briefly stated the facts of the case are that the plaintiffs filed a suit for injunction. The 2 defendants not only contested the suit but also filed a counter claim in which it was averred that the predecessor of the plaintiffs had executed an agreement of sale in their favour and prayed that a decree for specific performance be passed in their favour. 3. The plaintiffs in their affirmative evidence only submitted a copy of the revenue record and did not lead any oral evidence. The defendants led evidence on all issues. Thereafter, the learned counsel for the plaintiffs made a statement that he does not want to lead any evidence in rebuttal and the evidence of the plaintiffs was closed. This order was passed on 16.8.2010. Thereafter, on 6.9.2010, an application was filed by the plaintiffs wherein it was stated that the counsel of the plaintiffs remained under impression that no counter claim had been filed and it was in these circumstances that he had made the aforesaid statement. In this application which was signed by the counsel, it was stated that the plaintiffs should not suffer for the bona fide and inadvertent mistake of their counsel and they may given a chance to lead evidence in rebuttal. This 3 application was contested and was dismissed by the impugned order. 4. A Division Bench of this Court as far back as in the year 1980 in Bish Ram and anr. Vs. Smt.Kalawati and ors. 1980 (9) ILR 49 held that when a party takes all reasonable care by engaging counsel and acts in good faith, it should not suffer for the mistaken advice given by the counsel. 5. The approach of the learned Trial Court was hyper technical. Courts are not meant only to decide the cases but must ensure that the cases are decided in accordance with law and justice is done to the parties. In case, litigants are denied justice, then the faith in the judicial system itself shall stand eroded. When the counsel was candidly admitting his mistake that he had closed the evidence under the mistaken belief that no counter claim had been filed, the Court should have granted an opportunity to the plaintiffs to lead evidence. 6. Therefore, the present petition is allowed subject to payment of Rs.1000/- as costs and the petitioners-plaintiffs are granted one opportunity to bring their evidence. It shall be the responsibility of 4 the plaintiffs to serve and produce their witnesses. In case any witness does not appear despite service then the Court shall take coercive steps. The assistance of the Court can obviously be taken for serving the witnesses. It is also made clear that since the plaintiffs are being permitted to lead evidence in rebuttal, they shall not be allowed to lead evidence on issues No.1 and 2, the onus to prove which was on them and rebuttal evidence can only be led in respect of issues No.3 to 6. 7. The parties through their counsel are directed to appear before the learned Trial Court on 18.5.2011 and thereafter, the learned Trial Court shall give one opportunity to the plaintiffs to lead rebuttal evidence as indicated hereinabove. 8. The petition is disposed of in the aforesaid terms. April 7, 2010 ( Deepak Gupta ) (m) Judge