The power to recall a witness under Or.18 R.17 C.P.C. is discretionary and should be exercised sparingly, especially in cases of prolonged trials and when similar applications have been previously dismissed.

(Civil Revision Petition filed under Section 115 of C.P.C. against the Fair and Decretal Order dated 09.05.2005 made in I.A.No.110 of 2003 in O.S.No.119 of 1996 on the file of District Munsif - cum - Judicial Magistrate, Keeranur.)

This Revision is preferred against the order of District Munsif-cum-Judicial Magistrate, Keeranur made in I.A. No.110 of 2003 in O.S.No.119 of 1996 dated 09.04.2003 dismissing the Petition filed under Or.18 R.17 read with Sec.151 C.P.C. declining to recall D.W-1 for the purpose of marking the Sale Deed in favour of one Chokka Konar. The Second Defendant is the Revision Petitioner.

2. O.S.No.119 of 1996:- The Suit Property relates to S.No.232/18 – 0.03.0 Ares, Kulathur Taluk, Pudukottai District. The Suit Property belongs to the Plaintiff ancestrally. In the Suit Property, there was Velikaruvai trees. The Plaintiff had been cutting the Velikaruvai trees and in enjoyment of the Suit Property by paying Kist etc. On 31.01.1996, when the Plaintiff was cutting the trees, the Defendants claiming right over the Suit Property prevented the Plaintiff from cutting the trees. The Plaintiff had issued Legal Notice on 05.02.1996. Though the Defendants have received the Notice, they have not sent any reply. Thereafter, the Defendants did not cause disturbance to the Plaintiff's possession of the Suit Property. Few days prior to the filing of the Suit, the Defendants again attempted to tresspass into the Suit Property. Hence, the Plaintiff has filed the Suit for Permanent Injunction.

3. Denying the allegations, the Defendants have filed the Written Statement contending that an extent of four cents originally belonged to one Arumugam Pillai by way of Assignment from the Government. Legal Heirs of the said Arumugam Pillai, namely, Velu Pillai and Shanmugam Pillai have executed a valid registered Sale Deed in favour of one Periyaiah Konar on 21.12.1955. The said Periyaiah Konar had sold the four cents of Suit Property to Chellammal, mother of the Second Defendant on 20.04.1957 by a registered Sale Deed. From the date of purchase, the Second Defendant's mother was in possession and enjoyment of the four cents of Suit Property. After her death, the Second Defendant has been in possession and enjoyment of the Suit Property by implanting stones on all the four sides. The Second Defendant had also put up a thatched shed. He has also raised Eucalyptus trees in the Suit Property. On the Southern Side of D-2's Property, the First Defendant is in enjoyment of about three cents of Suit Property. The First Defendant had also put up a thatched shed and using the same as a kitchen. The Plaintiff has not paid Kist to the Suit Property at any point of time. Since the Plaintiff is not in possession of the Suit Property, he is not entitled to seek the relief for Permanent Injunction.

4. The Trial commenced, Witnesses have been examined on both sides. At that stage, I.A.No.110 of 2003 was filed under Or.18, R.17 read with Section 151 C.P.C. for the purpose of marking the Sale Deed dated 16.04.1970 executed in favour of one Chokka Konar by recalling DW-1.

5. The above Application was resisted by the Plaintiff contending that the Suit has been pending for nearly two years. The Defendants have taken many adjournments for their evidence. The reasons stated to recall D.W-1 is not a genuine one. Earlier similar Application was filed under Section 151 C.P.C. to examine the Witnesses and the same was dismissed by the Court. While so, once again the Second Defendant has filed the Application to recall himself to mark the Sale Deed in favour of one Chokka Konar, which cannot be allowed.

6. The Learned District Munsif-cum-Judicial Magistrate, Keeranur dismissed the Application pointing out that already Chief Examination and Cross Examination of the Witnesses had been completed. The Lower Court was of the view that D.W-1 is not competent to speak about the Sale Deed in favour of Chokka Konar and no valid reasons have been made out to recall