ORDER :

HARINATH.N, J.

1. The petitioner is aggrieved by the order dated 12.12.2022 passed in I.A.No.404 of 2022 in O.S.No.40 of 2013 by the XV Additional District and Sessions Judge, Krishna District at Nuzvid. The said interlocutory application was filed to recall PW1 for cross-examination, and the learned Judge allowed it.

2. The learned counsel appearing for the petitioner submits that a Petition under Order XVIII, Rule 17, CPC, could not be filed to fill the lacuna in the cross-examination. It is submitted that the plaintiff was cross- examined by the other defendants in the suit. However, the 1st defendant awaited the cross-examination of the plaintiff as PW.1 by the other defendants and thereafter filed I.A. No. 404 of 2022 seeking to recall PW. 1 for cross-examination. It is submitted that the motive of filing the application at a belated stage is only to fill up the lacuna in the evidence, which is not permissible under the law.

3. The learned counsel for the petitioner further submits that the learned Judge has erred in allowing the I.A. solely on the ground that a fair opportunity ought to be granted to the petitioner to cross-examine the PW1. It is also submitted that the learned Judge observed that there was an abnormal delay in filing the petition; however, despite such observation, the I.A. was allowed without assigning any reasons.

4. The learned counsel for the petitioner further places reliance on Vadiraj Nagappa Vernekar (dead) Through L.Rs. Sharadchandra Prabhakar Gogate, (2009)4SCC410 the Hon’ble Supreme Court held that, though the provisions of Order 18 Rule 17 CPC 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. The Hon’ble Supreme Court in the matter of Bagai Construction Through Its Proprietor Lalit Bagai Vs. Gupta Building Material Store, (2013)14SCC1 held that after amendment to the CPC recording of evidence is to be continuous followed by arguments and final decision thereafter within a reasonable time. It was also observed that the Hon’ble Supreme Court has time and again reminded the Courts to constantly endeavour to follow such a time schedule. In the event, time schedule is not followed the very purpose of amending the provisions of Civil Procedure Code would be defeated. It was also observed that applications for adjournments, reopening and recalling witnesses could be as far as possible and only in compelling and acceptable reasons, those applications are to be considered. It was also held that by filing applications for recalling the witnesses the case of the party cannot be include resulting in filling up the lacuna.

5. The learned counsel appearing for the respondent Nos. 4, 6 to 9 submits that the respondent Nos. 4, 6 to 8 have adopted the counter filed by the petitioner in I.A.No. 404 of 2022. Though the notice has been served on the contesting respondents, there is no representation on their behalf when the matter is taken up for hearing.

6. Heard the learned counsel for the petitioner and the learned counsel appearing for respondent Nos. 4 and 6 to 9. Perused the material on record.

7. The short point for consideration is ;

Whether this Court can consider the case of the petitioner and set aside the order passed by the learned XV Additional District and Sessions Judge, Krishna District at Nuzvid in IA No. 404 of 2022 in OS No. 40 of 2013 ?

8. The suit in O.S.No.40 of 2013 is filed for partition and is pending trial. The petitioner and the 1^st defendant are children of the 2^nd defendant. The case of the plaintiff before the trial Court is that the defendant Nos.1 and 2 have indulged in clandestine sale transaction of 1,500 square feet of open terrace area on