C.R. No. 3837 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3837 of 2008 (O&M) Date of decision: January 12, 2009 Rameshwar Dayal .. Petitioner v. Smt. Sarwan and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. J.P. Sharma, Advocate for the petitioner. Mr. D. S. Nirban, Advocate for the respondents. .. Rajesh Bindal J. Challenge in the present petition is to the orders dated 13.3.2006 and4.6.2008, whereby the application filed by the petitioner for permission to examine him was dismissed. Learned counsel for the petitioner submitted that the petitioner herein filed a suit for possession by way of ejectment against tenant-Satbir from the property in dispute. After the death of tenant-Satbir, his legal representatives have been brought on record. The petitioner was leading his evidence. However, inadvertently the affidavit of the petitioner was not tendered in evidence and upon the statement of counsel for the petitioner, evidence was closed on 13.3.2006. Thereafter, the evidence of the respondents started and during the process, it was noticed that inadvertently, the evidence of the petitioner was not recorded, though the affidavit of the petitioner was prepared on 19.7.2005 for tendering in the court on the next date of hearing, i.e. 20.7.2005. The submission is that it was sheer mistake on the part of the counsel for which the petitioner should not be made to suffer, otherwise the petitioner was not to gain by not leading the evidence or by delaying the suit. The respondents' evidence is still going on and even after tendering of affidavit of the petitioner, the respondents can lead evidence in defence. On the other hand, learned counsel for the respondents submitted that evidence of the petitioner in the present case started on 20.1.2003 which continued upto 13.3.2006, when on the statement of counsel for the petitioner, the evidence C.R. No. 3837 of 2008 [2] was closed and it was not a case where evidence was closed by order of the Court. The application is highly belated. In case of any lacuna, the petitioner should not be made to cover up the same under the garb of filing the present application. There is contradictory stand taken by the petitioner – on the one hand stating that the affidavit of the petitioner was lying in the brief, whereas on the other hand it is stated that it was misplaced. Having heard learned counsel for the parties, I find merit in the submissions of learned counsel for the petitioner. Though in the present case, evidence of the petitioner was closed on the statement of counsel for the petitioner, but the conclusion which can be reached, in the facts and circumstances of the present case, is that it was on account of mistake that counsel for the petitioner closed the evidence by making a statement, whereas the most important witness, i.e., petitioner in the suit had not got his statement recorded. It was so mentioned by the petitioner even in the application filed before the court below that it was by mistake that affidavit of the petitioner could not be tendered in evidence. The original of this was lying in the brief but was mixed up with the papers and the counsel remained under the impression that evidence of the petitioner had been led. In the present case, the petitioner is seeking possession of the property by evicting the respondents-tenants. By not leading the evidence or by delaying the suit, he was not going to gain anything. Another fact, which is important, is that it is not a case where the evidence was closed by order of the court, rather, it was on the statement of the counsel that evidence of the petitioner was closed. Accordingly, on account of any inadvertent mistake by the counsel, the petitioner should not be made to suffer. It is also a fact that presently the evidence of the respondents is going on and whatever is said by the petitioner in the evidence to be led by him, the same can very well be countered by the respondents in the evidence to be led by them. For the reasons mentioned above, the impugned orders passed by the learned court below are set aside. The petitioner is granted one opportunity for getting his statement recorded. However, the same shall be subject to payment of Rs. 5,000/- as costs to the respondents. The revision petition is disposed of in the manner indicated above. (Rajesh Bindal) Judge 12.1.2009 mk C.R. No. 3837 of 2008 [3]