Judgment:-

Altamas Kabir, J.

Leave granted.

2. The short question for decision in this appeal is 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.

3. The aforesaid question arises in respect of a suit filed by one Vadiraj Naggappa Vernekar and Smt. Mainabai Ranade, being Suit No. S. 925 of 1990, before the learned Single Judge of the Bombay High Court, seeking a declaration that the Letters of Administration obtained by one Sharadchandra Prabhakar Gogate on 5th November, 1998, in respect of the estate of Dr. Sudha Gogate, was not binding on the plaintiffs or any of them and did not affect their right, title and inte3rest in the suit property, being Flat no. 402, situated in Amogh Vikram Cooperative Housing Society Ltd., Murari Ghag Marg, Prabhadevi, Bombay 400025. Vadiraj Naggappa Vernekar died during the pendency of the suit and his legal representatives were brought on record in his place. The appellant No. 1, being the wife of the deceased, was made plaintiff no. 1A and his sons and daughters were made plaintiff Nos. B, C and D respectively.

4. One Sadanand Sheshgiri Shet, who was alleged to be a witness to all the transactions relating to the said flat, was appointed as Constituted Attorney by the appellant and the other heirs of deceased Vadiraj Naggappa Vernekar and as required under Order 17 Rule 4 CPC, his evidence by way of an affidavit was filed before the learned Single Judge. While the evidence was still being recorded in the suit, the appellant and the other plaintiffs moved Notice of Motion No. 463 of 2006 before the learned Single Judge on 13th February, 2006, urging that certain facts which were necessary for proper adjudication of the suit had inadvertently been left out in the affidavit affirmed by Sadanand Shet and that it was, therefore, necessary to recall him for further examination-in-chief under the provisions of Order 18 Rule 17 CPC. By order dated 7th July, 2006, the learned Single Judge dismissed the said Motion upon holding that the witness could not be recalled to fill up the lacuna in his examination-in-chief on affidavit. Appeal No. 853 of 2006 filed by the appellant herein was dismissed in limine by the Division Bench of the High Court on 1st December, 2006, confirming the order of the learned Single Judge. The present appeal, by leave, has been filed against the order of the Appeal Court dated 1st December, 2006.

5. Learned Senior Advocate, Mr. P.S. Narasimha, who appeared for the appellant, briefly submitted that the provisions of Order 18 Rule 17 CPC were very wide and could be made at any stage to enable the Court to do complete justice between the parties. For the sake of reference, the provisions of Order 18 Rule 17 CPC are reproduced hereinbelow:—

"17. Court may recall and examine witness. -

The Court may, at any stage of suit, recall any witness who has been examined and may (subject to the law of evidence for the time being in force), put such questions to him as the Court thinks fit."

6. Mr. Narasimha also submitted that it has been held by way of judicial pronouncements that the Court may recall and examine a witness not only suo motu but also on an application that may be made by the parties to the suit. Learned counsel also submitted that the affidavit of evidence of Sadanand Shet had been prepared by the learned advocate, who had inadvertently left out certain vital facts which were necessary for, a complete and proper adjudication of the suit. He urged that on account of the omission of the learned counsel, the plaintiffs/appellants herein should not be made to suffer since the evidence of Sadanand Shet went to the very root of the issues to be decided in the suit. Mr. Narasimha also submitted that although the cross-examination of the witness on affidavit had been completed, the defendants could always be permitted to re-examine the witness on the fresh evidence that