THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION Nos.3871 and 3872 of 2009 Dated:02.09.2009 Between: Dr.B.Siva Rama Rao …Petitioner and Dr.B.Nirmala Devi. …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION Nos.3871 and 3872 of 2009 ORDER: The petitioner is the husband of the respondent. He filed O.P.No.145 of 2008 before the Family Court, West Godavari District, Eluru, seeking decree of divorce and dissolution of marriage between the petitioner and the respondent, which was performed about three decades ago. Respondent is opposing the same. During the enquiry both the parties let in evidence. The matter was coming for arguments. At that stage, petitioner filed I.A.No.762 of 2009 for reopening the matter, and I.A.No.763 of 2009 to recall R.W.1 (respondent herein) for further cross examination. The applications were dismissed by the Court placing reliance on Vadiraj Naggapa Vernek (d) through LRs v Sharad Chand Prabhakar Gogate[1]. Aggrieved by the orders dated 21.07.2009, these two civil revision petitions are filed. Therefore, they are being disposed of by this common order. Learned Counsel for the petitioner placing reliance on Vadiraj Naggapa Vernek (supra) submits that the Court is vested with the power to reopen and recall the witness to clarify any doubts which may be with regard to the evidence lead by the parties, and therefore, the impugned orders amount to failure of exercising the power vested in the Court. Per contra, learned Counsel for the respondent submits that a witness cannot be recalled to fill up the lacunae in the evidence of the witness and as the petitioner is precisely admitting to do so the impugned orders are unassailable. He also relies on the decision cited hereinabove. In his affidavit accompanying both the applications the petitioner gave the reasons for reopening and recalling R.W.1 in the following manner. I submit that the respondent adduced evidence on her behalf and the matter is coming on for arguments on 17-07-2009. I submit that during pendency of the case before this Hon’ble Court, the respondent filed several false complaints against me and by using her position as police Doctor she got registered cases against me, even though she has committed the offences against me and my staff members. Not being contended with she made false claim claiming my property as her property and also caused damage to my operators in the Hospital. It is just and necessary to re-open the matter for recalling of RW-1 for further cross-examination on important aspects and for confronting of some documents. Unless the matter is reopened for recalling of RW-1, I will suffer irreparable loss. An analysis of the above would show that the petitioner intends to recall RW.1 to question her on the alleged complaints given by her to the Police and her alleged claim to the property as well as the alleged damage done by her in the hospital. Whether these are relevant for the purpose of deciding the divorce petition? They are certainly not. Secondly, as rightly pointed out by the trial Court, these are the new aspects about which the petitioner intends to cross examine RW.1. In such an event the witness cannot be recalled. In Vadiraj Naggapa Vernek (supra) the Supreme Court considered the question whether the witness having been examined by way of affidavit evidence can be recalled for giving further evidence with regard to facts not mentioned in the affidavit. On interpretation of Order XVIII Rule 17 of the Code of Civil Procedure, 1908, and considering the case law, the Supreme Court laid down as under. …The provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined… …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 an 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… Applying the test laid down by the Supreme Court that the power to recall cannot be invoked to fill up the lacunae in the evidence of witness, which has already been recorded, this Court is convinced that the impugned orders do not suffer from any error apparent on the face of the record. Learned trial Judge has appreciated the facts correctly and applied the principle correctly. The Civil Revision Petitions are, therefore, dismissed. There shall be no order as to costs. ____________ (V.V.S.RAO, J) 02.09.2009 vs [1] 2009 (3) SCJ 365