IMPORTANT POINT
Power to recall any witness under Order 18 Rule 17 of CPC can be exercised by Court not to fill up lacunae in evidence of witness which has already been recorded but to clear any ambiguity that may have arisen during course of his examination.

ORDER

This Revision Petition, under Article 227 of the Constitution of India, is preferred against the order, dated 21.06.2023, in I.A.No.288 of 2023 in O.S.No.395 of 2018 on the file of the Court of the Principal Senior Civil Judge, Ongole, Prakasam District filed under Section 151 and order 18, rule 7 of C.P.C seeking to recall DW-1 and DW-3 for further cross examination with regard to payment of consideration and other disputes of Ex.A1 transaction.

2. The petitioner herein is the plaintiff; the respondents herein are the defendants in the suit.

3. The plaintiffs filed the suit in O.S.No.395 of 2018 filed to cancel the Registered Sale Deed dated 11.04.2018 bearing No.1628 of 2018 executed in favour of 1st defendant by the plaintiff for the suit schedule property and same is pending. In the said suit an application in I.A.No. 288 of 2023 has been filed to recall DW-1 and DW-3 for further cross examination. The trial court dismissed the said application on the ground that the petitioner filed the application to fill up the lacunae and it would cause great prejudice to the 1st respondent and there is no justifiable cause to reopen and recall the witnesses after closure of the evidence on the side of defendants. Assailing the same, the present Revision came to be filed.

4. Heard Sri K. Koutilya, learned counsel for the petitioner parties and Sri N. Madhava Reddy, learned counsel for the respondents.

5. During hearing learned counsel for the petitioner would contend that the trial court wrongly came to a conclusion that the application was filed after the suit reserved for Judgment, in fact the matter has been posted for arguments of the plaintiff on 24.07.2023 as per e-courts status. It is further contended that it is primarily to enable the court to clarify any issue or doubt by recalling any witness either suo-motu or on application of any party so that the court can itself put questions and elicit answers, which is also observed by the Hon’ble Apex Court in “Vadiraj Naggappa Vernekar vs. Sharadchandra Prabhakar Gogate”, (2009) 4 SCC 410 wherein it was held as follows:—

“16. In our view, though the provisions of Order 18 Rule 17 Civil Procedure Code have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross-examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 Civil Procedure Code is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 Civil Procedure Code.

17. It is now well settled that the power to recall any witness under Order 18 Rule 17 Civil Procedure Code can be exercised