THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.1587 OF 2011 Dated:10.06.2011 Between: C.Rajendra .. Petitioner And P.Bhushanamma .. Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.1587 OF 2011 ORDER: The petitioner is the defendant. The respondent filed the suit for permanent injunction. During trial, plaintiff examined PWs.1 to 3. The evidence of defendant commenced. When the suit was coming for cross-examination of D.W.2, the defendant filed I.A.No.215 of 2011 purportedly under Order XVIII Rule 17 of Code of Civil Procedure, 1908 (CPC) to recall P.Ws.1 and 3 to examine them on the issue of the alleged execution of General Power of Attorney by one O.Venkat Reddy. The application having been dismissed by the impugned order, the defendant filed the instant Civil Revision Petition. The counsel for petitioner submits that a specific plea was taken in the written statement denying the alleged execution of General Power of Attorney by Y.Niranjan Reddy in favour of O.Venkat Reddy who sold away the property under registered sale deed dated 07.05.1981 and the allegation that O.Venkat Reddy was in possession of property was also denied. By inadvertence, however, there is no cross-examination on these aspects and therefore it is necessary to recall the witnesses. As held by the Supreme Court in Vadiraj Nagappa Varnekar v. Sharad Chand Prabhakar Gagate[1] the power to recall any witness under Order XVIII Rule 17 CPC cannot be invoked to fill up the lacunae in the evidence of the witness who has already been examined and the power is exercised by the Court to recall a witness to clear any ambiguity that may have arisen during the course of cross- examination. A perusal of the impugned order of the lower Court would show that the petitioner/defendant already got the suit reopened twice and when the trial is probably at the end stage, another application is filed for cross-examination of PWs.1 and 3 on an aspect which was specifically pleaded in the written statement. When a plea is taken that Y.Niranjan Reddy never executed General Power of Attorney in favour of O.Venkat Reddy and that the latter is never in possession of the property, the burden is certainly on the defendant to prove the fact in issue. Now that the trial is in progress and the defendant is adducing evidence, nothing prevents the petitioner to prove the allegation made in the written statement. The impugned order, viewed from any angle, does not suffer from any such grave error which is incapable of being corrected subsequently by the appellate Court. The Civil Revision Petition is misconceived and is, accordingly, dismissed. There shall be no order as to costs. _______________ (V.V.S. RAO, J) 10.06.2011 KH [1] (2009) 4 SCC 410 : 2009 (3) ALT 25 (SC)