CRP 327/2009 BEFORE THE HON’BLE MR. JUSTICE T. VAIPHEI Heard Mr. P.K. Kalita, learned counsel for the petitioner and Mr. J. Sharma, lea rned counsel for the respondent. 2. This revision under Article 227 of the Constitution is directed against the order dated 6.7.2009 passed by the learned Civil Judge,No. 1, Kamrup, Guwaha ti in Misc. (J) Case No. 95/09 allowing the application of the petitioner/plaint iff under Order 18 Rule 4(2) CPC for his re-examination of himself as a witness. The suit filed by the plaintiff/respondent is a Money Suit in which it is stat ed that it is a partnership firm registered under the Indian Partnership Act, 19 32, which originally came into existence on 01.09.1977 with four partners and th e firm was reconstituted on 20.04.1996 by a deed of partnership on the basis of which the two persons Sri Suresh Kumar Jain and Sri Niranjan Kr. Kumar Jain beca me the partners of the firm. The said Niranjan Kr. Jain was examined in his capa city as a partner as PW-1 who proved the certificates of registration of the par tnership firm along with the other documents. It would appear that the certifica te of the registration of the firm shows the names of only the original partners of the partnership firm at the time of the establishment of the firm and as a result the name of said Niranjan Kr. Jain was not mentioned; whose cross-examin ation took place only on 20.4.96 whereas the partnership had been constituted wa y back in 1977. According to the respondents, with the intention to create confu sion, the petitioner put questions to the said Niranjan Kr. Jain in the cross- examination and extracted statement to the fact that no document was produced by him to show him that he was a partner of the firm. It is also the case of the r espondent that though a number of documents had been filed by it at the state of filing of documents, the documents namely the deed of partnership dated 20.4.19 96, and the acknowledgement of the Income tax authority for the Income Tax Retur n in the form of SARAL for the assessment year 2002-03 etc. could not be exhib ited at the time of filing of affidavit in evidence due to inadvertence. It was contended by the respondents that due to the confusion so created in the cross -examination of the said Niranjan Kr. Jain, it had become necessary to re-exami ne the said Niranjan Kr. Jain (PW 1) to prove and exhibit those documents for th e purpose of explanation and clarification of such confusion/ ambiguity and the exercise is merely clarificatory in nature. Despite the vehement objection raise d by the petitioner herein, the trial court by the impugned order allowed the ap plication of the respondents. Aggrieved by this, this revision petition has been preferred by the petitioner. 3. The contention of Mr. P.K. Kalita, learned counsel for the petitioner is that the respondent was merely interested in filling up the lacuna found in its case and the documents sought to be filed were already annexed with the plaint and, therefore, not not new facts subsequently discovered, it cannot now be perm itted to exhibit these documents by re-examination of PW 1 under the guise of ma king clarification or explanation. Strong reliance is placed by him on the decis ion of the Apex Court in Vadiraj Naggappa Vernekar Vs. Sharad Chand Prabhakar Go gate 2009 (4) SCC 410 in support of his contention. He, therefore, submits that the impugned order cannot be sustained in law and is liable to be quashed. On th e other hand Mr. J. Sharma, the learned counsel for the respondent, while strenu ously defending the impugned order, submits that when the status of the plainti ff as partner of the firm is admitted by the petitioner in the written statemen t, the confusion created in the course of cross-examination of the said Niranjan Kr. Jain is required to be dispelled by adducing further evidence, which can no t be done except by way of re-examination of PW 1 under Order 18, Rule 17, CPC. The type of clarification sought for in the application, according to the lear ned counsel for the respondent, can never be taken as an attempt to fill up the lacuna in the case of the respondent but is only to clarify the confusion unduly brought about by the petitioner itself in the cross-examination of PW 1. In su pport of his contention, the learned counsel for the respondent also relies on V adiraj Naggappa Vernekar (Supra) cited by the learned counsel for the petitione r. In addition to this, the learned counsel cites the decision of the Apex Court in Rammi Vs. State of Madhya Pradesh 1999 (8) SCC 649 and the decision of the R ajasthan High Court in Jodhpur Gums & Chemicals Pvt. Ltd., Vs. Punjan National B ank and others, reported in AIR 1999 Rajasthan 38, to fortify his contentions. H e, therefore, urges this Court to dismiss the revision petition, which, accordin g to him, is devoid of merit. 4. The Trial Court has recorded the finding that the deed of partnership of M/s. Chhabra Enterprises dated 20.4.96 as well as the form of SARAL form of s ubmission of return of Income Tax authority on 28.10.2002 sought to be exhibited by the respondent in the re-examination were found submitted on 31.3.2005 with the list of documents at page 33 and 39 as paginated by the respondent and that both the copies of the document mentioned the name of the respondent’s firm and as such, this document could not said to be not necessary to be proved in the s uit. I have carefully perused the impugned order and other materials on record. The contention of the learned counsel for the respondent that status of the said Niranjan Kr. Jain as one of the partners of the firm in question is not dispute d in the written statement of the petitioner, can not be disputed by the learned counsel for the petitioner. On the other hand in the cross-examination of the P W 1, the petitioner extracted the following statement :- I have not submitted any document to show him as partner of M/s. Chhabr a Enterprises. My name has not come. Ext. 1 and Ext.2 is written by me. Ext. 3 i s the letter document coming from the office. 5. A perusal of the written statement of the petitioner will indicate that it is not the pleaded case of the petitioner in his written statement that the P W 1 is not one of the partners of the respondent-firm. The settled law is that i n the absence of pleadings in the written statement on a issue, no evidence can be looked into in relation thereto. Under the circumstances, the trial court ou ght not to have allowed the petitioner to raise this in the cross-examination of PW 1: apparently, no objection was raised by the counsel for the respondent eit her. Be that as it may, the view taken by the trial court in allowing the applic ation for the re-examination of PW 1 that the prayer was bona fide as well as in order as the same was necessary for proper adjudication of the matter in issue is a possible view, which cannot be interfered with by me in exercise of my jur isdiction under Article 227 of the Constitution. If I were sitting in a trial co urt, I may not have allowed the application but as long as the view taken by the trial court is a possible view, I cannot interfere on the ground that the other view would have been a better view. That is the meaning of exercise of a discre tionary power by the trial court. Even then, it must be noted that a confusion w as apparently created by the petitioner when the PW 1 was required to answer que stions on an issue not pleaded him in his written statement and was apparently a dmitted by him. Whether PW 1 is a partner of the partnership firm in question or not shall have to be clarified and/ or explained by him in the re-examination b y exhibiting the documents already on record: such exercise cannot by any stretc h of imagination be construed to be a device to fill up the lacuna in the case o f the respondent. I am not oblivious of the law laid down by the Apex Court. In Rammi Vs. State of Madhya Pradesh 1999 (8) SCC 649 in which it has been observed : 16. The very purpose of re-examination is to explain matters which have been brought down in cross-examination. Section 138 of the Evidence Act outline s the amplitude of re-examination. It reads thus : direction of re-examination.- The re-examination shall be directed to t he explanation of matters referred to in cross-examination; and if new matter is , by permission of the Court, introduced in re-examination, the adverse party ma y further cross-examine upon that matter. 17. There is an erroneous impression that re-examination should be confi ned to clarification of ambiguities which have been brought down in cross-examin ation. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the sre-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examinati on he has the liberty to put any question in re-examination to get the explanati on. The public Prosecutor should formulate his questions for that purpose. Expla nation may be required either when ambiguity remains regarding any answer elicit ed during cross-examination or even otherwise. If the Public Prosecutor feels th at certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subj ect of course to the control of the court in accordance with the other provision s. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross examination. 6. From the pleadings of the parties, I am satisfied that the re-examinatio n sought for by the respondent is found necessary only for clarification of the confusion which has been created in the cross-examination of PW 1. Though the d ecision in Rammi Case (Supra) was rendered by the Apex Court in the context of a Criminal Case, I do not see why the principle laid down therein cannot be held applicable to a civil case such as the one here. However, I must hasten to add t hat the re-examination as well as the exhibition of those documents, sought to t he admissibility thereof, must confine to the first 4 (four) sentences of the cr oss-examination of PW 1. Though the re-examination was sought for at the stage w hen argument had already been, the provision of Order 18, Rule 17 empowers the t rial court to order the re-examination at any stage provided always that a genui ne case for the same is made out by the party. In my judgment, no case of improp er exercise of jurisdiction is made out by the petitioner to warrant the interfe rence of this Court in the impugned order under Article 227 of the Constitution. 7. For the reasons stated above, this revision has no merit and the same is dismissed. Under the facts and circumstances of the case, the parties are, howe ver, directed to bear their own costs.