IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO No.151 of 2006. Date of decision : 16.06.2008. Sita Devi & Ors. …..Appellants. Versus Mohan Lal & Ors. …..Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the Appellants: Mr.G.D. Verma, Senior Advocate with Mr.B.C. Verma, Advocate. For Respondents 1 to 55: Mr.Ramakant Sharma, Advocate. Dev Darshan Sud, J. This appeal has been preferred by the appellants herein who were the plaintiffs in the learned trial Court. The learned Civil Judge (Senior Division) granted a decree in their favour restraining the defendants by a permanent prohibitory injunction from causing interference in the irrigation rights in respect of Kuhal No.2 and Kuhal No.4 (stream of water as described in the plaint). The defendants-respondents appealed. In appeal, the learned appellate Court held that the 1 Whether Reporters of Local Papers are allowed to see the judgment? 2 statement made by the learned counsel appearing for the defendants-respondents herein, Shri K.L. Gupta, deceased, on 19.7.1993 that:- “Since the summoned record, as per the reports, is not available in any office and the defendants do not possess any certificate or carbon copy of the documents, therefore, it is impossible to procure the summoned record, hence I close the evidence regarding such record”. did not constitute waiver of the rights of the defendants-respondents to lead evidence in the matter. The learned Court also allowed the application under Order 41 Rule 27 of the code of Civil Procedure filed by the defendants-respondents for leading additional evidence which was allowed. Two other applications under Order 18 Rule 18 and Order 6 Rule 9 of the code of Civil Procedure were dismissed by the learned appellate Court in view of the fact that the matter was remanded to the learned trial Court for decision afresh in accordance with a further observation that the plaintiffs, appellants herein, shall be granted an opportunity to lead evidence in rebuttal to the evidence brought on the record by the defendants. The decision has been challenged by the appellants-plaintiffs on a number of grounds. Primarily, it was urged that the learned appellate Court has made out a new case in favour of the 3 respondents herein, the evidence of the defendants had been closed on their own volition by a voluntary act fully understanding the meaning of the statement given by their learned counsel and that no grievance on this count could be made by the respondents-defendants. The learned trial Court had rightly held that the defendants had abandoned their right to lead any evidence. No case for additional evidence was made out in this appeal. Learned counsel appearing for the appellants placed reliance on a decision of the Supreme Court in N.Kamalam (Dead) and another vs. Ayyasamy and another, (2001)7 SCC 503, holding therein that the petition under Order 41 Rule 27 cannot be resorted to at the whims of a party and that adopting a justice oriented approach did not mean reopening the entire case for retrial. I have heard learned counsel for the parties and have gone through the record of the case. I cannot persuade myself to accept the contentions as put forth by the learned counsel appearing for the appellants. In Badi Ram vs. M/s.R.S. Company, AIR 2002 HP 150, this Court interpreting the provisions of Order 41 Rule 27 and applying the principle as laid down in the Constitutional Bench of the Supreme Court in K. Venkataramiah vs. A.Seetharama Reddy, AIR 1963 SC 1526 holding that additional evidence can be admitted where it is required for clearing doubt in any controversy 4 pending adjudication between the parties. However, in the facts of the present case, the defendants- appellants before the learned appellate Court were seeking an opportunity to lead evidence as, according to them, their right had been closed on a wrong interpretation of the statement made by the learned counsel. I cannot find any flaw of reasoning of the learned appellate Court where it holds that the defendants-respondents herein had not abandoned their right to lead evidence nor made a statement to that effect through their learned counsel in the Court below. On the other aspect of the matter that the state of the evidence was unsatisfactory and even the revenue Authorities had been unable to establish the true and proper identity of the revenue record purporting to confer rights on the plaintiff, cannot be faulted with. In such a situation, the only course open to the appellate Court would have been to remand the case which it has done so. A justice oriented approach, giving ample opportunity to both the parties to establish their case, has been granted. The judgment of the learned appellate Court is affirmed. The appeal is dismissed with the following directions:- 1. That the parties shall appear before the learned District Judge, Solan on 5.9.2008 before which date the records of this case 5 shall be placed before the learned Court below. 2. On that date the learned District Judge shall fix a date for appearance before the learned trial Court, the records of the case shall be sent to it which shall then proceed to determine the controversy in accordance with law and as directed by the learned appellate Court with due expedition. 3. The parties of-course, shall be at liberty to assail the decision so arrived at by the Courts below in accordance with law. There shall be no order as to costs. June 16, 2008. (Dev Darshan Sud) (aks) Judge.