The petitioners herein are the defendants in O.S.No.205 of 1999 on the file of the Court of the Junior Civil Judge, Madakasira. The said suit was filed by the respondent herein for partition of the suit schedule property and for separate possession of his 1/4th share and other consequential reliefs. The Revision petitioners/defendants contested the suit and during the course of evidence D.W.1 was examined on their behalf. An affidavit of D.W.1 in lieu of chief-examination was filed and thereafter he was also cross-examined by the counsel for plaintiff in part on 19-7-2007 during which EX.A-3 document was marked. However, D.W.1 failed to appear for further cross-examination and consequently by order dated 17-8-2007 his evidence was eschewed.

2. Subsequently the plaintiff filed I.A.No.625 of 2007 under Section 151 of C.P.C. to set aside the order dated 17 -8-2007 stating that no sufficient reasons could be shown for non-production of D.W.1 for further cross-examination. Though the defendants filed a counter and opposed the said petition, the Court below by order dated 8-4-2008 allowed I.A.No.625 of 2007 and set aside the earlier order dated 17-8-2007 on payment of costs of RS.200/-.

3. Aggrieved by the said order, the present Civil Revision Petition is filed by the defendants under Article 227 of the Constitution of India contending that the Court below committed a grave error in allowing I.A.No.625 of 2007 thereby compelling DW.1 to subject himself to cross-examination. It is also contended that since the order dated 17-8-2007 eschewing DW.1 has become final, the same cannot be recalled or set aside in exercise of powers under Section 151 of C.P.C.

4. I have heard the learned counsel for the petitioners and perused the material on record. .

5. Despite notice, the respondent did not choose to appear.

6. Admittedly, D.W.1 was partly cross-examined by the counsel for the plaintiff on 19-7-2007 during which a document was marked on behalf of the plaintiffs as EX.A-3. According to the plaintiff, D.W.1 had also made certain material admissions during cross-examination. However, D.W.1 did not make himself available for further cross-examination though the matter underwent four adjournments on 1-8-2007, 3-8-2007, 9-8-2007 and 17-8-2007. I n the circumstances, by order dated 17-8-2007 the evidence of D.W.1 was eschewed.

Thereafter, while the matter was coming up for further evidence on behalf of the defendants and D.W.2 had filed his affidavit in lieu of chief-examination, the plaintiff filed I.A.No.625 of 2007 to set aside the order dated 17-8-2007 and the said petition was allowed observing that the evidence of DW.1 was crucial.

7. Chapter-X of the Indian Evidence Act, 1872, deals with the examination of the witnesses. As per Section 138 of the Evidence Act, a witness shall be first examined in chief and then he can be cross-examined if the opposite party so desires.

In case a witness, after examination-in-chief, failed to make himself available for the cross-examination by the opposite party, may be his evidence in chief can be eschewed since there was no opportunity to the opposite party to test the veracity of the evidence in chief. However, when a witness was already cross-examined by the adverse party to some extent, merely because he failed to make himself available for further cross-examination, the entire evidence cannot be eschewed. It is relevant to note that cross-examination under Section 138 of the Evidence Act need not be confined to the facts to which the witness testified in his examination-in-chief but he can be examined as to the whole of the case. Particularly in the present case, EX.A-3 document was marked on behalf of the plaintiff through DW.1 and according to the plaintiff certain material admissions were also made by D.W.1 during his cross-examination. In the circumstances, the eschewal of the entire evidence of D.W.1 causes prejudice to the plaintiff. It is also relevant to note that setting aside such an order d