JUDGMENT - KHANDEPARKAR R.M.S., J.:---Heard the learned Advocates for the parties. Perused the records. Rule. By consent, rule is made returnable forthwith.

2. The petitioner challenges the order dated 17-9-2002 passed by the trial Court allowing the application filed by the respondent Nos. 1 to 3 for recall of the defendant No. 1 in the suit for the purpose of cross-examination on behalf of the respondent Nos. 1 to 3. The order is purportedly passed in exercise of powers under Order 18, Rule 17 of the Code of Civil Procedure, 1908, hereinafter referred to as "the Code".

3. Placing reliance in two decisions of this Court one in the matter of (Madhubhai Amthalal v. Amthalal Nanalal and others)1, reported in A.I.R. 1947(34) Bombay 156, and (Steelage Industries Limited and another v. Smt. Chander Bagai)2, reported in A.I.R. 1992 Bombay 406, the learned Advocate for the petitioner has submitted that the trial Court has no jurisdiction to recall the witness for the purpose of cross-examination by either of the parties and the jurisdiction under Order 18, Rule 17 of the Code is limited for the purpose of examination of the witness by the Court itself when such examination of the witness is found to be necessary by the Court. On the other hand, placing reliance in the decisions of the Andhra Pradesh High Court in (Sultan Saleh Bin Omer v. Vijaychand Sirimal)3, reported in A.I.R. 1966 A.P. 295, and of the Madras High Court in (P.S. Pandian v. Annai Velanganni Films represented by its partner, Mrs. Savithri Devaraj, Chennai and another)4, reported in 2002(2) Mh.L.J. 591, it was sought to be contended that in the interest of justice the Court is empowered to permit the parties to cross-examine a witness on being recalled and such a relief can also be granted by the Court by exercising its jurisdiction under section 151 of the Code and therefore no fault can be found with the impugned order, apart from the fact that the impugned order is an interlocutory order and the petitioner is not entitled to seek interference of this Court in the impugned order in writ jurisdiction.

4. As regards interference by this Court in the impugned order in writ jurisdiction, it is well-settled by a catena of decisions of the Apex Court as well as of this Court including the decisions of the Apex Court in the matter of (Dahya Lala and others v. Rasul Mahomed Abdul Rahim and others)5, reported in A.I.R. 1964 S.C. 1320, (Vadivelu v. Sundaram and others)6, reported in 2000(8) S.C.C. 355, and of the learned Single Judge of this Court in (Prabhudas Narayan Gedam and others v. Municipal Council, Bhadrawati)7, reported in 2003(2) Bom.C.R. (N.B.)301 that in case of illegal exercise of jurisdiction as also when there is an error of jurisdiction or violation of the law laid down by the Supreme Court or the High Court, interference in writ jurisdiction under Article 227 of the Constitution is well justified. In the case in hand, it would be therefore necessary to ascertain whether the provisions of law in Order 18, Rule 17 of the Code can be invoked to prevent a party to the suit to recall the witness for the purpose of cross-examination? If not, whether the facts and the circumstances of the case warrant grant of such a relief in exercise of inherent powers under section 151 of the Code?

5. The provisions of law contained in Order 18, Rule 17 of the Code provide that the Court may, at any stage of the suit, recall any witness who has been examined and may, subject to law of evidence for the time being in force, put such question to him as the Court thinks fit. The said provision of law apparently does not deal with the subject of allowing the parties to cross-examine the witness after such witness being recalled in exercise of powers thereunder. In other words, the provisions contained in Order 18, Rule 17 of the Code do not empower the Court to recall the witness for the purpose of cross-examination by either of the parties though it does permit recall of witnesses for t

Click Here to Read the rest of this document