IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL st ON THE 21 OF NOVEMBER, 2022 WRIT PETITION No. 18020 of 2016 BETWEEN:-

1. VISHNUDATT TRIPATHI S/O LATE GYAANDATT TRIPATHI, AGED ABOUT 61 YEARS, VILL TIKURI, TEH RAMPUR BAGHELAN SATNA (MADHYA PRADESH)

2. JAGDISH PRASAD TRIPATHI S/O BHAIYALAL TRIPATHI, AGED ABOUT 63 YEARS, R/O VILLAGE TIKURI, TEH-RAMPUR BAGHELAN, DISTRICT SATNA (MADHYA PRADESH)

3. RAMKHELAWAN TRIPATHI S/O BHAIYALAL TRIPATHI, AGED ABOUT 46 YEARS, R/O VILLAGE TIKURI, TEH-RAMPUR BAGHELAN, DISTRICT SATNA (MADHYA PRADESH)

.....PETITIONERS (BY SHRI VIRENDRA SINGH CHOUDHARY - ADVOCATE)

AND

1. LAVKUSH PRASAD TRIPATHI S/O SHRI KAMTA PRASAD TRIPATHI, AGED ABOUT 33 YEARS, VILL. TIKURI, TEH RAMPUR BAGHELAN SATNA (MADHYA PRADESH)

2. KAMTA PRASAD TRIPATHI (DEAD) THR. LRS.

SMT. DUASIYA W/O LATE SHRI KAMTA PRASAD TRIPATHI, AGED ABOUT 60 YEARS, VILLAGE TIKURI TEH. TIKURI, DISTRICT SATNA (MADHYA PRADESH)

3. MAHRAJIYA D/O BAIJNATH TRIPATHI, AGED ABOUT 65 YEARS, R/O VILLAGE KAKALPUR, TEHSIL AMARPATAN, DISTRICT SATNA (MADHYA PRADESH)

Signature Not Verified SAN Digitally signed by ANURAG SONI 4. GULIYA D/O BAIJNATH TRIPATHI, AGED ABOUT

61 YEARS, R/O VILLAGE KAKALPUR, TEHSIL AMARPATAN, DISTRICT SATNA (MADHYA PRADESH)

5. MALUKIYA (DEAD) THROUGH LRS KRISHN KUMAR S/O SUNDARLAL, AGED ABOUT 26 YEARS, R/O VILLAGE BARAA, TEH-SEMARIYA, DISTRICT REWA (MADHYA PRADESH)

6. SMT. MAAN KUMARI @ PHOTO W/O RAMSURAT PANDEY, AGED ABOUT 43 YEARS, R/O VILLAGE KASIYARI, POST KANI, DISTRICT REWA (MADHYA PRADESH)

7. SMT. MUNNI W/O KAMLESH MISHRA, AGED ABOUT 33 YEARS, R/O GHORKATH, TEH-KOTAR, DISTRICT SATNA (MADHYA PRADESH)

9. COLLECTOR THE STATE OF MADHYA PRADESH DISTT.-SATNA (MADHYA PRADESH)

10. MADESHWAR S/O LATE SHRI KAMTA PRASAD TRIPATHI, AGED ABOUT 37 YEARS, VILLAGE TIKURI TEH. TIKURI DISTRICT SATNA(MADHYA PRADESH)

11. BALKRISHNA S/O LATE SHRI KAMTA PRASAD TRIPATHI, AGED ABOUT 31 YEARS, VILLAGE TIKURI TEH. TIKURI DISTRICT SATNA (MADHYA PRADESH)

12. SMT. MITHLESH KUMARI D/O LATE SHRI KAMTA PRASAD TRIPATHI VILLAGE NAYAGAON TEH. MANJHGAWAN DISTRICT SATNA (MADHYA PRADESH)

.....RESPONDENTS (SHRI RAVINDRA KUMAR TIWARI - ADVOCATE FOR RESPONDENT NO.1) This petition coming on for hearing this day, the court passed the following:

ORDER

This Writ Petition is filed by the defendant Nos.1 to 3 being aggrieved of Signature Not Verified SAN order dated 04/10/2016 passed by learned III Civil Judge, Class-I, Satna in Civil Date: 2022.12.12 18:52:53 IST Suit No.57-A/2013, whereby learned Civil Judge has allowed an application filed by the defendant Nos. 4, 5 & 6 under Order 18 Rule 17 of the C.P.C. permitting cross-examination of defendant's Nos. 1, 2 & 3 witnesses in the hands of defendant Nos. 4, 5 & 6 after closure of defendants evidence on the ground that case of the defendants Nos. 4, 5 & 6 was being looked after by a junior counsel, who failed to understand the seriousness of the matter, so also the legal implications and when this fact was discovered on obtaining opinion of a senior counsel, then application was filed recalling the defendant's Nos. 1, 2, 3 witness Vishnu Datt Tripathi and Shridayal Gautam for cross-examination.

It is submitted that this order is erroneous in the light of the law laid down by Supreme Court in Vadiraj Naggappa Vernekar (dead) Through LRs Vs. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 wherein it is held that provision of Order 18 Rule 17 of the CPC are applicable for recall of witness after his examination is completed, is not to fill up lacuna in evidence, nor it is intended to be used to fill up omission in the evidence of a witness who had already been examined. Main purpose of order 18 Rule 17 of the CPC is to enable Court to clarify any doubts that may have arisen during the course of his examination. Prejudice is not a aground for exercise of powers by Court and accordingly, the impugned order deserves to be set aside and be set aside. After hearing learned counsel for the parties/petitioner and going t