JUDGMENT

Heard Sri P. Srinivasulu, learned counsel for the petitioners and perused the material available on record.

2. This civil revision petition under Article 227 of the Constitution of India has been filed challenging the order dated 29.11.2023, passed in I.A.No.412 of 2023 in O.S.No.580 of 2021 on the file of II Additional Junior Civil Judge-cum-II Additional Judicial Magistrate of the First Class, Rajamahendravaram.

3. The plaintiffs filed O.S.No.580 of 2021 for a decree of recovery of the suit amount and award of interest etc., based on three demand promissory notes dated 26.07.2005 with pleadings inter alia that the defendants timely made endorsements, by paying small amount towards repayment of debt, on the back of the promissory notes on 25.07.2008, 25.07.2011, 11.06.2014 and lastly on 06.06.2017.

4. The petitioners are the defendants in the suit.

5. The application I.A.No.412 of 2023 was filed by the plaintiff/respondent to recall P.W.1, to mark the payment endorsements made by the defendants on the backside of the „3‟ promissory notes, supported by affidavit pleading inter alia that due to over look the plaintiff‟s advocate could not mark those endorsements made by the defendants as exhibits.

6. The petitioner/defendants filed objection/counter submitting inter alia that the plaintiffs knew very well which documents were to be marked on her side and as such the evidence could not be reopened and P.W.1 could not be recalled. 7. The learned trial court allowed I.A.No.412 of 2023 vide the impugned order dated 29.11.2023.

8. Pursuant to the order dated 23.02.2024, passed in this petition, the petitioners have filed a memo brining on record, copy of the affidavit in chief and the cross-examination of P.W.1. 9. Learned counsel for the petitioners submits that the endorsement was in the knowledge of the plaintiff and was on record. If that was not marked at the time of evidence of P.W.1, now the I.A. could not be allowed to fill the lacunae in evidence. 10. Learned counsel for the petitioners placed reliance in Vadiraj Naggappa Vernekar (deceased) by L.Rs) vs. Sharad Chand Prabhakar Gogate1 to contend that the provisions of Order XVIII Rule 17 Code of Civil Procedure, (CPC) are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.

11. I have considered the submissions advanced by the learned counsel for the petitioners and perused the material on record.

12. Order XVIII Rule 17 CPC read as under:

“17. Court may recall and examine witness:- The Court may at any stage of a suit recall any witness who has been examined and may subject to the law of evidence for the time being in force put such question to him as the court thinks fit.”

13. In Vadiraj Naggappa Vernekar (supra), upon which learned counsel for the petitioners placed reliance, the question for decision was:

“Whether a witness having been examined by way of affidavit evidence can be recalled for giving further evidence with regard to facts not mentioned in the affidavit.”

1 AIR 2009 SC 1604

14. In Vadiraj Naggappa Vernekar (supra), the Hon‟ble Apex Court held that the provisions of Order XVIII Rule 17 CPC are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. It was further held that 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 Hon‟ble Apex Court further held that the power under Order XVIII Rule 17 CPC is to be sparingly exercised and in appropriate case and not as a general rule. The Hon‟ble Apex Court further held that if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the trial court to permit recall of such a witness for re-examination in chief with permission to the defendants to cross-examine the witness thereafter. It was held that ultimately it is within t