The main legal point established in the judgment is the interpretation of Order XVIII Rule 17 of the Code of Civil Procedure and the permissible circumstances for recalling a witness for cross-examination.

Rule. Rule made returnable forthwith. Heard finally with the consent of learned Counsel for the parties.

2. This petition takes an exception to the order dated 30/10/2015 passed below Exh.178 by learned Joint Civil Judge Senior Division, Nagpur in Special Civil Suit No.543/1999.

3. The facts giving rise to petition may be stated in brief as under :

I. Petitioner is the original plaintiff. Suit for specific performance of contract came to be filed before learned Civil Judge Senior Division, Nagpur.

Respondents are the defendants in suit. On 21/09/2013, PW-1 Madhukar Ukey was crossexamined by defendants 1 to 3. Defendants 4 to 6 remained absent. None represented them and, therefore, order of 'no cross' was passed by the trial court.

II. Thereafter an application [Exh.152] was presented by defendants 6 & 7 for setting aside 'no cross' order. The same was allowed. On the same day, a pursis came to be filed on behalf of defendants 6 & 7 adopting cross-examination of witness by defendants 1 to 3.

III. After filing pursis, another application [Exh.178] was filed by defendants 6 & 7 for recalling PW-1 Madhukar Ukey for cross-examination. The main ground raised in application was that pursis was passed without seeking instructions from them. Application was objected by plaintiff. Upon hearing the parties, trial court vide impugned order dated 30/10/2015 granted permission to defendants 6 & 7 to cross-examine plaintiff's witness. It is this order which is the subject matter of present writ petition.

4. Heard Shri S.P. Dharmadhikari, learned Senior Counsel for petitioner and Shri A.G. Gharote, learned Counsel for respondents 2, 3, 6 & 7.

5. Learned Senior Counsel submits that defendants 6 & 7 adopted cross-examination of the witness by pursis and the same amounts to an admission. Submission is that after filing pursis and adopting the cross-examination made by defendants 1 to 3, they cannot turn around and say that their case was not put up in the cross-examination by learned Counsel for defendants 1 to 3.

6. On the ambit and scope of Order XVIII Rule 17 of the Code of Civil Procedure, learned Senior Counsel placed reliance on the decision of the Hon'ble Apex Court in Bagai Construction vs. Gupta Building Material Store – [(2013) 14 SCC 1] and Vadiraj Naggappa Vernekar vs. Sharadchandra Prabhakar Gogate – [(2009) 4 SCC 410]. Referring to the above decisions, it is submitted that power conferred upon Court under Order XVIII Rule 17 of the Code of Civil Procedure cannot be used to fill up the lacuna, as trial Court in it's order has clearly observed that there is no substance in the contention of defendants 6 & 7 that they have not instructed their counsel. Learned Senior Counsel submits that considering the scope of Order XVIII Rule 17 of the Code of Civil Procedure, recalling of witness in the circumstances of the present case is not permissible and the impugned order being erroneous and illegal needs to be interfered with in extraordinary jurisdiction.

7. Per contra, Shri A.G. Gharote, learned Counsel for respondents 6 & 7 referred to application [Exh.178] and submitted that defendants never instructed their counsel to pass such pursis and adopt cross-examination made by defendants 1 to 3. According to the learned Counsel, defendants 6 & 7 have raised a specific defence that they are bona fide purchasers and suit is barred by limitation. It is submitted that defence raised by defendants 6 & 7 was never put to witness by learned Counsel for defendants 1 to 3 and for want of cross-examination on the defence raised by defendants 6 & 7, their interest is going to be adversely affected in case witness is not recalled and not further cross-examined. In support of submission, learned Counsel placed reliance on the judgment of the Hon'ble Supreme Court in Himalayan Coop. Group Housing Society vs. Balwan Singh and others – [(2015) 7 SCC 373] and of this Court in Writ Petition No.741/2016, dated 21/04/2016.

8. With the assistance of the learned Co