IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 123 of 2009. Judgement reserved on: 18.6.2010. Date of decision: 5.7.2010. Akash ….. Petitioner. Vs. Gian Singh & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Deepak Bhasin, Advocate. For the Respondents : Mr. G.D.Verma, Senior Advocate with Mr. B.C.Verma, Advocate. Kuldip Singh, Judge. This revision has been filed against the order dated 5.9.2009 passed by learned Civil Judge (Junior Division), Jubbal in CMA No. --/6/2009 rejecting the application of petitioner and respondents No. 2 to 8 filed under Order 18 Rule 17 CPC read with Section 138 of the Indian Evidence Act for recalling the witnesses of respondent No. 1 for further cross examination. 2. The facts in brief are that respondent No. 1 had filed a suit for possession against Sain Singh regarding land more specifically described in the plaint on the ground that respondent No. 1 is one of the recorded co-owners with others. Sain Singh had Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… illegally occupied the suit land, he was stranger and had no right, title over the suit land Sain Singh died and his legal representatives petitioner and respondents No. 2 to 8 were brought on record. 3. The suit was contested by the petitioner and respondents No. 2 to 8, in which they took several preliminary objections including the plea of adverse possession. It has been alleged that respondent No. 1 was aware of the possession of petitioner and respondents No. 2 to 8 since the life time of his father and at-least from the year 1986. The respondent No. 1 has stepped into the shoes of his father. The prayer was made for dismissal of the suit. The respondent No. 1 filed replication and reiterated his stand taken by him in the plaint. On the pleadings of the parties, several issues were framed including issue No. 4 whether the plaintiff (sic petitioner and respondents No. 2 to 8) has become owner of the suit land by way of adverse possession. 4. The respondent No. 1 has examined three witnesses on 5.3.2009 and closed his evidence. The suit was fixed on 25.4.2009 for DWs. The petitioner and respondents No. 2 to 8 filed an application on 25.4.2009 under Order 18 Rule 17 CPC read with Section 138 of Indian Evidence Act for recalling the witnesses examined by respondent No.1 for further cross-examination. This application was contested by respondent No. 1 and learned Civil Judge dismissed the application on 5.9.2009. 5. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by the learned counsel for the petitioner that originally the petitioner and …3… respondents No. 2 to 8 had engaged Sh. C.R. Bhardwaj, Advocate, Rohru to conduct the case, but he handed over the case to Sh. Lokinder Sharma, Advocate. The petitioner and respondents No. 2 to 8 accepted Sh. Lokinder Sharma, Advocate as he assured that he would defend them properly. The witnesses of respondent No. 1 were cross-examined by the counsel for the petitioner and respondents No. 2 to 8 and the suit was fixed for evidence of the petitioner and respondents No. 2 to 8. On obtaining the attested copies of statements of witnesses examined by respondent No. 1, it was found that cross-examination conducted on behalf of the petitioner and respondents No. 2 to 8 was not in accordance with the plea of adverse possession taken in the written statement. 6. It has been alleged that witnesses of respondent No.1 have not been cross-examined regarding the adverse possession of petitioner and respondents No. 2 to 8 by inadvertence of the counsel for petitioner and respondents No. 2 to 8. The learned counsel for the petitioner has submitted that under these circumstances, the application was filed for recalling the witnesses of respondent No. 1. The court below has erred in not allowing the application. 7. The learned counsel for respondent No. 1 has submitted that there is no jurisdictional error in the impugned order, the revision is not maintainable, Order 18 Rule 17 CPC is available to the court and not to the parties. The application under Order 18 Rule 17 CPC cannot be allowed to fill up the lacunae. The learned counsel for respondent No. 1 has relied Vadiraj Naggappa Vernekar (deceased by L.Rs). v. Sharad Chand Prabhakar Gogate AIR …4… 2009 SC 1604, judgement dated 8.7.1992 rendered by this court in Civil Revision No. 70 of 1992 titled as Smt. Krishana v. Smt. Vimal Chopra, and Joginder Singh v. Devinder Kumar 1999 (1) Civil Court Cases 202 (P&H). It has been submitted that no fault can be found with the impugned order. 8. The emphasis of submissions of learned counsel for the petitioner is that necessity to file the application, under Order 18 Rule 17 CPC has arisen as the witnesses of respondent No. 1 were not cross-examined on the point of adverse possession of petitioner and respondents No. 2 to 8. The onus to prove the adverse possession of petitioner and respondents No. 2 to 8 as per their plea should be on them. It appears due to inadvertent error at the time of framing of issues on 26.11.2008 under issue No. 4 word “plaintiff” has crept in, in stead of “defendants”, but that makes no difference in view of controversy in the present petition. The petitioner is aware of the controversy and his plea of adverse possession as taken in the written statement. 9. PW 1 Gian Singh has been cross-examined by giving suggestion that Sain Singh was in possession of the land in dispute. He has also been given suggestion that orchard was raised by the father of petitioner and respondents No. 2 to 8. He has also been given suggestion that in February 1984 the father of petitioner and respondents No. 2 to 8 took possession of the land in dispute. It has also been suggested to this witness that in April 1986, the father of the petitioner and respondents No. 2 to 8 was requested to hand over the possession. It was also suggested to this witness that …5… petitioner and respondents No. 2 to 8 are coming in possession of the land in dispute prior to the age of discretion of the witness. PW 2 Aval Singh was cross-examined that Sain Singh was in possession of the suit land since the life time of Kewal Ram father of respondent No.1. PW 3 Balia has also been cross-examined regarding the possession of Sain Singh on the land in dispute since the life time of Kewal Ram. 10. The petitioner and respondents No. 2 to 8 have put their case to the witnesses of respondent No.1. The witnesses have been cross-examined as per the wisdom of the learned counsel representing the petitioner and respondents No. 2 to 8. There is no allegation against the counsel representing the petitioner and respondents No. 2 to 8 that he intentionally did not put some material questions to the witnesses during their cross-examination. It has been alleged in the application that ineffective cross-examination by the counsel for the petitioner and respondents No. 2 to 8 may be by inadvertence by the counsel. 11. The cross-examination of the witnesses of respondent No. 1, as noticed above, does reveal that counsel representing the petitioner and respondents No. 2 to 8 was very much aware of the defence of the petitioner and respondents No. 2 to 8. In Vadiraj’s case (supra), the Hon’ble Supreme Court after noticing order 18, Rule 17 CPC has held that provisions are not intended to be used to fill up the omissions in the evidence of a witness, who has already been examined. The Supreme Court has further held that power to recall any witness under Order 18 Rule 17 CPC can be exercised by the …6… court either on its own motion or on an application filed by any of the parties to the suit, but 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. 12. In Smt. Krishna’s case (supra), it has been held that it is well settled that under Order 18Rule 17 CPC the Court has been empowered to recall any witness who has been examined and put such questions to him as the Court thinks fit. But it is a judicial discretion and it is to be exercised on some valid and cogent reasons, such as, to clear the ambiguity which has crept in the statement already recorded or to bring on record a document having material bearing on the decision of the case which could not be brought on record inadvertently etc. etc. But certainly discretion under Order 18 Rule 17 CPC should not be exercised to help a party to fill up the lacuna in its case. In Joginder Singh’s case (supra), it has been held that once the witnesses had been cross-examined, they could not be recalled for further cross-examination only on the ground that they had not been cross-examined effectively by the Advocate who cross-examined them on the date they put in appearance. 13. In the present case the application under Order 18 Rule 17 CPC read with Section 138 of Indian Evidence Act is not signed by any advocate. This application was presented in the court by Sh. Lokinder Sharma, Advocate. The only ground to recall the witnesses of respondent No. 1 for their cross-examination is that the counsel representing the petitioner and respondents No. 2 to 8 did not cross- …7… examine the witnesses effectively due to inadvertence on the point of adverse possession. The cross-examination conducted by the counsel for the petitioner and respondents No. 2 to 8 has already been noticed above. There is nothing in the application that some material facts which came to the notice of petitioner and respondents No. 2 to 8 after the cross-examination of the witnesses of respondent No.1 are required to be put to the said witnesses. The effective cross-examination is a very vague term used by the petitioner for recalling the witnesses of respondent No. 1 for cross-examination. The further cross-examination of the witnesses already cross- examined cannot be permitted merely on the change of counsel with the purpose to fill up the lacunae left in the case. There is no error of jurisdiction when the learned Civil Judge has dismissed the application of petitioner and respondents No. 2 to 8. No case for interference is made out. 14. No other point was urged. 15. As a result of above discussion, the petition fails and is accordingly dismissed. July 5, 2010. ( Kuldip Singh ), (Hem) Judge.