JUDGMENT :

Biswanath Rath, J.

This Civil Miscellaneous Petition involves a challenge to the impugned order at Annexure-6 rejecting an application at the instance of the defendant Nos. 2 to 5 under Order 18 Rule 17 of C.P.C read with 151 of C.P.C.

2. Short background involved in the case is that after examination of D.W. 6 finding inadvertent omission in the affidavit in evidence submitted on behalf of the D.W. 6, an application under Order 18 Rule 17 of C.P.C. read with Section 151 of C.P.C was filed with a prayer to recall the D.W. 6 for his further examination in chief on the points indicated therein. On their appearance the defendant Nos.8 & 9 filed objection challenging the maintainability of the application and further, resisting the attempt of the petitioners on the premises that in the event of allowing such an application the defendant No.5 will be allowed to fill up the lacunas, which is not permissible in the eye of law. There was no objection by the other defendants except plaintiffs and defendant nos.8 & 9.

Considering the rival contentions of the parties, learned trial Court further taking into consideration a decision of the Hon’ble Apex Court in the case in between Ram Rati v. Manage Ram (D) Through Lrs. as reported in 2016 (Supp.-I) OLR (SC) 938 rejected the application giving rise the present Civil Miscellaneous Petition.

3. Assailing the impugned order, referring to the response in paragraph No.8 of the written statement so also referring to the application under Order 18 Rule 17 read with Section 151 of C.P.C learned counsel for the petitioners submitted that though the examination of D.W. 6 is over but there has been bona fide omission of certain questions. Sri Baug, learned counsel for the petitioners further submitted that though the application considered in the impugned order was nomenclated as an application under Order 18 Rule 17 read with Section 151 of the C.P.C but looking to the prayer made therein, it appears, the application was to be treated as an application under Section 151 of the C.P.C. The trial Court on the premises that application at the instance of the petitioners being filed under Order 18 Rule 17 referring to a decision of the Hon’ble Apex Court dealing a matter strictly involving provision at Order 18 Rule 17 of C.P.C rejected the application without considering the fact that the petitioners have moved an application following Section 151 of C.P.C.

Referring to a decision in the case in between Salem Advocate Bar Association, T.N. v. Union of India as reported in 2005(VI)SCC344 particularly referring to the paragraph No.13 of the said decision, learned counsel for the petitioners submitted that the test of the moment was to find out whether the party satisfied that even after exercise of due diligence that part of the evidence was not within his knowledge or could not be produced when the party was leading evidence, the Court may permit for leading of such evidence at a later stage on such terms appears to be just.

4. Further, referring to a decision of the Hon’ble Apex Court in the case in between K.K. Velusamy v. N. Palanisamy as reported in (2011) II SCC 275 particularly referring to paragraph Nos.3, 10 & 11 of the said decision, Sri Baug, learned counsel submitted that for the observation of the Hon’ble Apex Court that for the request in such contingency, the matter should have been considered in exercise of power under Section 151 of C.P.C rather than confining the consideration under the provisions of Order 18 Rule 17 of C.P.C.

5. Referring to another decision of this Court in the case in between U.K. Ghosh v. M/s. Voltas Ltd., and another as reported in AIR 1994 Orissa 131 particularly referring to the paragraph No.4 of the judgment learned counsel for the petitioners submitted that this Court had only observation that this nature of application cannot be entertained for the reason there is an attempt to fill up the lacunas.

6. Challenging the order, referring the judgment of the Hon’