IMPORTANT POINT
Witnesses can be recalled for examination or re-examination as the case may be, by invoking the provision of section 151 of the Code since said inherent power is not affected by provisions of order 18 Rule 17 of the Code.

S.S. Shinde, J.—Rule. Rule made returnable forthwith. By consent, heard finally.

2. This writ petition takes exception to the order dated 08.11.2011, passed by the learned C.J.S.D. Nilanga below Exh.51 in Special Civil Suit No.44 of 2010.

3. A limited grievance, raised in this petition, is that the application filed by the petitioners herein for recalling the witnesses i.e. PW1 and PW2 for cross examination after filing of written statement by original defendants i.e. petitioners herein has been rejected on the ground that once the witnesses are cross-examined, there is no power vested in the Court to call the witnesses for examination or re-examination by the plaintiff or defendants, as the case may be.

4. The learned counsel for the petitioners submitted that the Supreme Court in case of K.K.Velusamy v. N. Palanisamy, 2011(2) Apex Court Judgments 065 (S.C.), 2011(11) SCC 275 had an occasion to deal with the provisions of Order18, Rule 17 and has taken a view that the inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness, to enable the Court’ to put such question to elicit any clarifications. It is submitted, even in the facts of that case, the Supreme Court held that even the powers u/s. 151 of the CPC can be exercised for reopening the evidence or for recalling the witnesses. Therefore, relying upon the said decision of the Supreme Court, the Counsel for the petitioners submits that the writ petition may be allowed.

5. On the other hand, the learned counsel for the respondents submits that under Oreder 18, Rule 17 of the Code of Civil Procedure, the parties to the proceedings cannot file an application for recalling the witness for examination or cross-examination. The powers under Order 18, Rule 17 of the Code are to be exercised by the Court in appropriate cases, if it is felt necessary by the concerned Court. However, the power under Order 18, Rule 17 is to-be exercised by the Court itself by asking the questions or clarification from the witness. However, the said powers under Order 18, Rule 17 cannot be invoked or exercised allowing the parties to examine or cross-examine the witness. The learned Counsel submitted that the powers conferred upon the Court to permit a party under Order 18, Rule 17-A to produce additional evidence, has been taken away by the legislature by deleting the said provision from the Code. Therefore, according to the learned Counsel for the respondents, in the instant case, the trial Court has rightly rejected the application. The learned Counsel for the respondents invited my attention to the judgment of this Court in case of Balkrishna Shivappa Shetty v. Mahesh Nenshi Bhakta and others, 2003(3) Mh. LJ. 47 and submitted that the provisions contained in Order 18, Rule 17 of CPC do not empower the Court to recall the witness for the purpose of examination or cross-examination by either of the parties though it does permit recall the witness for the purpose of examination of the Court itself. The learned Counsel, therefore, would submit that there is no merit in the petition and the same deserves to be dismissed.

6. I have given due consideration to the rival submissions. It is true that on plain reading of provisions of Order 18 Rule 17 of the Code, it appears that only the Court is empowered to recall the witness to put such questions to elicit any clarification. However, the Supreme Court in case of K.K. Velusamy (supra) had an occasion to consider the provisions of O.18 R.17 and also the provisions of Section 151 of the Code. Upon considering the said provisions, the Supreme Court in para 9 of the judgment held that, the inherent powers of the court u/s.151 of the Code is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the Court to put such question to elicit any clarifications. The Supreme Court, in para 11 of the jud