( 1 ) THE question raised in this revision petition is whether a party to a suit has a right under Rule 17 of Order 18 CPC (hereinafter referred to as Rule 17), to recall a witness for the purpose of further examining, cross-examining or re-examining, and that question arises in the following circumstances:

( 2 ) THE petitioner and the first respondent are brothers and the second respondent is the minor son of the first respondent. On 24-8-1966 the petitioner, the first respondent and their father Thimmanna Bhat divided their family properties under a registered partition deed (Ext. P-2) of even date, and one of the terms in- that partition deed was that the said Thimmanna Bhat was entitled to collect by way of 'owelty' 520 kgs. of arecanut from the petitioner and the first respondent. Then thimmanna Bhat bequeathed his right to collect 'owelty', after his death, from the first respondent in favour of the petitioner under a Will Ext. P1.

( 3 ) AFTER the death of the said Thimmanna Bhat, the petitioner filed a suit against the respondents in O. S. No. 133 of 1970 on the file of the munsiff at Buntwal, South Kanara, for recovery of the value in cash of the 'owelty'. The respondents resisted that suit and inter alia contended that the right given to Thimmanna Bhat to collect by way of 'owelty' 520 Kgs. of arecanut was not a heritable right and that he was entitled to the same only during his life time, and it is unnecessary to refer to his other contentions.

( 4 ) IN view of the stand taken by the respondents, one of the issues 'framed in that suit was whether Thimmanna Bhat had a heritable right to collect 'owelty' so as to bequeath the same. The respondents in support of their case, examined one Shanker as DW. 2 who is one of the attestors of the partition deed Ext. P2. Long after his evidence was recorded the first respondent filed an application, I. A. VI, under S. 151 CPC to recall dw2 for the purpose of further examining him; what was stated in that application was that though DW. 2 deposed in his evidence that thimmanna Bhat was entitled to collect 'owelty' during his life time, that fact does not find a place in his deposition and that it was hence necessary to further examine him to elicit that fact for a just decision of the case.

( 5 ) THE petitioner resisted that application and denied that DW. 2 deposed to the said fact in the course of his evidence. He contended that the prayer made in I. A. VI was misconceived and untenable.

( 6 ) THE learned Mrmsiff declined to accept the version of the first respondent viz. , that DW. 2 deposed to the said fact, and in so declining this is what he stated in the impugned order:"the notes of the examination in chief of DW. 2 made by Sri K. K. Bhat during DW. 2's evidence do not disclose that DW. 2 stated in his examination in chief that the owelty was payable only during the life time of Thimmanna Bhat. Under these circumstances, I see no force in the contention that the material point on which DW2 spoke during his evidence has been accidentally omitted by the Court while recording his evidence. "despite taking that view, he allowed I. A. VI on the ground that the said fact might not have been elicited from DW. 2 due to inadvertance and he should be permitted to elicit the same. However, in allowing that application and in passing the impugned order which is extracted below, the view he took was that the right to reca. ll a v/itness for the purpose of further examining, cross-examining or re-examining is traceable to Rule 17 and not to Section 151 CPC. :"i. A. No. 6 is allowed and the defendants are permitted to recall and examine DW. 2 subject to the condition that they pay costs of rs. 40 to the plaintiff by the next date of hearing. The plaintiff is allowed to further cross-examine DW. 2. "

( 7 ) THE said order is attacked by Sri Ganapathi Bhat learned counsel for the petitioner on two grounds. Firstly it was contended by him that under Rule 17 it is only the Court which can suo m

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