THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.5968 of 2009 11.02.2010 Between: Bandreddi Kishna Murthy, S/o.Setaramayya …Petitioner and Bandreddi Seetharamayya, S/o.Nagayya And others …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.5968 of 2009 ORDER: Petitioner is the plaintiff. He filed O.S.No.100 of 2007 on the file of the Junior Civil Judge, Chintalpudi, for declaration that the suit schedule property fell to his share in partition award dated 31.5.1978 and also for a declaration that the sale deed executed by first defendant in favour of defendants 2 to 5 is null and void and that is not binding on him. At the stage of trial, he filed I.A.No.594 of 2009 to recall D.W.2. In the affidavit filed accompanying the application he stated that first defendant, who has given evidence as D.W.2 in the present suit, gave evidence in O.S.No.99 of 2007 admitting about the partition award and that he has to be confronted with the same. The Court below, considering objections of defendants, passed the order dismissing the application. The order passed by the Court below reads as under. Perused the record. The application was to recall D.W.2 to mark deposition through the cross-examination. D.W.2 was examined as per docket orders of the suit on 18.3.2009 and witness being was Bandreddi Parvathi and she was examined as D.W.3 in O.S.No.99 of 2007 on 14.10.2009. In such case how the application was maintainable and how her deposition in O.S.No.99 of 2007 could be confronted or marked. The application was filed to protract the intentionally further endlessly. Hence the petition is dismissed. This civil revision petition is filed assailing the above order. This Court heard learned Counsel for petitioner and learned Counsel for respondents, who relied on the latest judgment of Supreme Court in Vadiraj Nagappa Varnekar v Sharad Chand Prabhakar Gagate[1]. Petitioner herein requested the Court below to recall Bandreddi Seetharamayya (first defendant in the suit, who gave evidence as D.W.2). Allegedly he is a party to the partition award dated 31.5.1978. According to the petitioner in O.S.No.99 of 2007, first defendant/first respondent herein gave evidence as D.W.1 and admitted about the award. Therefore, it is relevant fact in issue. In such a circumstance, as held by the Supreme Court in Vadiraj Nagappa Varnekar (supra), it is always open to the Court to recall the witness. In the said judgment, the Supreme Court held as follows. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, 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. The Court below committed error in exercising jurisdiction properly vested in it under Order XVIII Rule 17 of Code of Civil Procedure 1908. Therefore, the civil revision petition is allowed. The impugned order in I.A.No.594 of 2009 is set aside and the same stands allowed. The Court below is directed to recall D.W.2 (first defendant) for further cross-examination by the plaintiff. The civil revision petition is accordingly allowed. No costs. ________________ (V.V.S.RAO, J) February 11, 2010. YS [1] (2009) 4 SCC 410 : 2009 (3) ALT 25 (SC)