IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 95 OF 2009 MR. ANDRE MENEZES (DECEASED) THROUGH LR'S ... Petitioners Versus MR. FAUSTO FILOMENO DIAS AND 2 ORS., ... Respondents Mr.T. Perreira, Advocate for the petitioner. Coram:- SMT. R. S. DALVI, J. Date:- 16th April, 2009 ORAL ORDER : Heard Mr. Perreira, the learned Counsel for the petitioner. 2. The notice has already been issued to the respondents. The respondents absent despite notice. The very short point for consideration, is under Order 18, Rule 17 of the Civil Procedure Code. It relates to the power of the Court to recall a witness for evidence. The Court refused to exercise the power to recall a witness as Order 18 Rule 17A was omitted in the amended C.P.C. That order has been challenged. 3. There are several parties in the suit. The plaintiff claims right as a co-owner and has challenged certain transactions entered into by the defendant Nos. 1 and 2(who are stated to be the plaintiff's co-owners) in favour of the defendant Nos. 3,4 and 5 under separate transactions. The evidence has been led by the plaintiff, the defendant No.2 and the defendant Nos.3, 4 and 5 separately. The defendant No.5, who is the petitioner in this case, has sought to recall defendant No.2 examined as D.W.2 upon the evidence led by the independent witness D.W.8, who is a broker. 4. In the cross-examination of D.W.8, Defendant No.2 produced a document in confrontation. Strictly speaking that document need not have been produced earlier or offered for inspection to the other parties under the provisions of the Order 8, Rule 1A subrule 4 of C.P.C. as also Order 13 Rule 1 subrule 3(a) of the C.P.C. Though Order 8, relates to documents shown for further cross-examination to the plaintiff's witness, Order 13 relates to the documents produced in the cross-examination of the witness of the other party. The defendant Nos. 3,4 and 5 are independent parties. They claim rights under independent transactions entered into separately by each of them with defendant Nos.1 and 2. Hence, the document produced by the defendant No.2 in the cross-examination of the witness, examined by the defendant Nos.3 and 4, who is the D.W.8, would be covered under Order 13, Rule 1, Subrule 3(a) of C.P.C. Strictly speaking, therefore, that document could have been marked in evidence without further proof. However, it was marked 'X' subject to proof. The document was marked for identification. It has to be identified by a party to be made admissible in evidence as an exhibit on record. The petitioner seeks to get it identified by defendant No.2, who has executed the document. Since it is marked 'X' subject to proof, the petitioner, or any other party, who desires to have it proved must be allowed to have it proved. He can get that document marked 'X' proved only through direct oral evidence of the author of the document. That requires further oral evidence to be adduced. Such evidence is not further documentary evidence alone. Upon further oral evidence, the Court would have to consider the admissibility or otherwise of the document already marked 'X'. The party, who desires to prove that document would, therefore, have to lead direct evidence to prove that document. 5. The defendant No.5 has amended his written statement upon the document coming to light. He has been allowed to amend the written statement upon his application for amendment. The defendant No.5 has sought to recall the defendant No.2 examined as D.W.2 to prove the document. The application for recalling, is made under Order 18, Rule 17 of C.P.C. since it would be direct evidence of D.W.2, that is required by the defendant No.5. The document may be exhibited after the said direct evidence has been adduced. 6. The defendant No.5 must have an opportunity to avail himself of such direct evidence by recalling the defendant No.2. If such further evidence is not allowed, the very purpose of cross-examination of D.W.8 would be frustrated. The entire truth must be allowed to prevail. Consequently, it is seen that the order of the learned Judge, passed under Order 18, Rule 17A of C.P.C., is incorrect. The learned Judge had the power and authority to recall and examine the defendant No.2(D.W.2) to bring the truth before the Court. 7. The learned Counsel has relied on the decision in Jeet Mohinder Singh V. Harminder Singh reported in (2004)6 SCC 26, in which though the application was sought to be filed under a different provision of the C.P.C., as it was essentially for recalling a witness, it was held to be made under Order 18, Rule 17 of the C.P.C. 8. Consequently,the order of the learned Judge dated 27.01.2009 passed under Order 18, Rule 17A, is set aside. The learned Judge shall recall the defendant No.2(D.W.2) under Order 18, Rule 17 of the C.P.C. and record further evidence as required. 9. The writ petition is disposed of accordingly. SMT. R. S. DALVI, J. SMA