1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8280 OF 2009 Popatrao Chindha Patil ...Petitioner vs. Vana Manasingh Pagar (since deceased through his legal heirs) ...Respondents Mr.Balkrishna Joshi for the petitioner Mr.Anilkumar Patil for the respondents CORAM :A.S.OKA,J. DATE : FEBRUARY 2, 2010 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the respondents. Considering the narrow controversy involved in the Petition, taken up final disposal at admission stage. 2 The challenge in this Writ Petition under Article 227 of the Constitution of India is to the order dated 24 th August 2009 passed by the trial Court. The petitioner is the original defendant and the respondents are the original plaintiffs. The petitioner examined a witness Mr.Pandurang D. Patil. An application was made by the petitioner by invoking section 155 of the Indian Evidence Act,1872 (hereinafter referred to as the said Act) seeking permission to recall the said witness for the purpose of impeaching his credit. The said application was allowed by order dated 21 st August 2009. Accordingly, the witness was recalled and certain questions were asked to the witness by the Advocate for the petitioner. At that stage, an application was made for taking an objection to the questions asked by the Advocate for the petitioner to the witness. The contention raised in the said application was that the examination of the said witness which is permitted for 2 impeaching his credit shall be in accordance with section 155 of the said Act of 1872 and therefore, the scope of the examination has to be laid down before the Advocate for the petitioner is allowed to proceed with further questions. By the impugned order, the learned trial Judge recalled the earlier order dated 21 st August 2009 by which the witness was recalled. 3 I have heard the learned counsel for the parties. The prayer in the application at Exh.86 was not for recall of the earlier order dated 21 st August 2009. the contention raised by the respondents was that further examination of the witness must be confined to the parameters laid down by section 155 of the said Act of 1872 and in fact the prayer in the application is that only after laying down the scope the examination of the witness, the Advocate for the petitioner should be permitted to ask further questions in the nature of the cross examination to the said witness. The impugned order shows complete non-application of mind. The application made by the respondents at Exh.86 ought to have been considered on merits and there was no occasion for the learned trial Judge to recall his earlier order. 4 Hence, Writ Petition is disposed of by passing the following order : i) Impugned order dated 21 st August 2009 is quashed and set aside and the application at Exh.86 is restored to the file of the trial Court. The trial Court is directed to decide the said application afresh in the light of observations made in this order. ii)All contentions of the parties on merits of the said application are kept open. JUDGE