IMPORTANT POINT
No petition to recall the witness can be allowed, merely to fill up lacunae in evidence let in by
them.

R. Mala, J.—The present civil revision petition has been filed challenging the fair and decretal order dated 14.6.2013 made in IA No. 332 of 2013 in O.S. No. 646 of 2005 on the file of the learned Additional District Munsif, Namakkal.

The revision petitioner as plaintiff has filed the suit in O.S. No. 646 of 2005 for partition and separate possession of his share in the property and also for other consequential relief’s. After the filing of the written statement and after framing the issues, the evidence on the side of the plaintiff was closed and the defendants DW1 to DW4 were examined.

At that juncture, the defendants came forward with an application in I.A. No. 332 of 2013 to recall PW 1 and PW 2 for further cross-examination on their behalf. In the said application, the petitioner herein filed a detailed counter-affidavit. The learned Trial Judge after considering the arguments advanced by both sides, allowed the application against which the present civil revision petition has been preferred.

2. Challenging the impugned order, the learned Counsel for the petitioner would submit that the suit was filed in the year 2005. After framing the issues, the trial commenced on 2.1.2012 and the evidence on the side of the plaintiff was closed on 30.8.2012 and the matter was posted for evidence on the side of the defendants on 4.9.2012. The defendants DW1 to DW4 were examined on 10.12.2012. For further examination of DW4, the matter was posted on 13.12.2012. At that juncture, the defendants came forward with the application in I.A. No. 332 of 2013 to recall PW1 and PW2 for further cross-examination, which clearly shows that to fill up the lacuna, the defendants had come forward the said application. The said factum has not been considered by the Trial Court, while allowing the application, even though the petitioner herein raised the plea that without filing the application to re-open the case, the application to re-open the evidence is not maintainable. Further, the Trial Court in its order has also held that it is not necessary to give particulars in respect of what documents, the defendants wanted to cross-examine

PW1 and PW2 and that it is obligatory on the part of the defendants to file a reopen petition as well as a petition to recall the witnesses at the stage of closing their evidence. It was also held that the procedure is only a handmaid of justice and in the interest of justice, it is inclined to give one more opportunity to the defendants, which is against the law.

3. The learned Counsel for the petitioner further submitted that only with a view to fill up the lacuna, the defendants had come forward with the said application and the Court cannot permit the parities to the proceedings to file an application to recall the Witnesses belatedly to fill up the gaps in his evidence. To substantiate his argument the learned Counsel for the petitioner relied upon the following decisions:

(i) Vadiraj Naggappa Vemekar (D) Through L.Rs. v. Sharad Chand Prabhakar Gogate, 2009(4) SCC 410

(ii) Bagai Construction v. Gupta Building Material Store, 2013(3) MLJ 185; and prayed for allowing of the civil revision petition.

4. Resisting the same, the learned Counsel for the respondent would submit that the without filing an application to re-open the case, the application to recall the witnesses is maintainable. The Trial Court has considered this aspect in proper perspective and has rightly allowed the application. To substantiate his argument, he relied upon the decision in V.I. Yacoob v. Big Mosque, 2013(5) CTC 39, and prayed for the dismissal of the civil revision petition.

5. Considered the rival submissions made by both sides and perused the entire materials available on record.

6. The admitted facts are that the petitioner herein as plaintiff has filed the suit for partition. After contest, the evidence on the side of the plaintiff commenced on 2.1.2012. On the said date, PW1/Ramaswamy was examined on proof affidavit and E