THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.1800 of 2010 16.07.2010 Between: Sarepalli Padma Lakshmi, W/o.Venkateswara Rao …Petitioner and Sarepalli Venkateswara Rao, S/o.Joga Rao …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.1800 of 2010 ORDER: The petitioner is wife of respondent. Their marriage was performed on 03.12.2008. Unfortunately matrimonial disharmony cropped up. Petitioner alleges that respondent subjected her to humiliation, insult and indignity, which she bore to save reputation and honour of the family. It is her further case that she was necked out of the matrimonial home and she took shelter in her parents’ house at Eluru. Petitioner filed O.P.No.54 of 2009 in June 2009 under Section 9 of Hindu Marriage Act, 1955, for restitution of conjugal rights. Respondent filed counter affidavit and contesting the same. During the enquiry petitioner herein gave evidence as P.W.1 (affidavit in lieu of chief examination). She was cross-examined at length. Respondent gave evidence as D.W.1 (affidavit in lieu of chief examination). His cross-examination was also completed. Respondent filed I.A.No.564 of 2009 under Section 151 of Code of Civil Procedure, 1908 (CPC) to reopen the matter for further cross- examination of P.W.1. The same was opposed. Overruling the objection, the Court of Family Judge, Eluru, allowed the application observing that the respondent shall cross-examine petitioner on her appearance. Aggrieved by the said order dated 12.4.2010, present revision petition is filed. The counsel for petitioner submits that the respondent filed application to recall petitioner with mala fide intention even though she was subjected to cross-examination for two days. Secondly he submits that the respondent admitted in his cross-examination that he is willing to take her and prayed for dismissing the O.P. That being the situation, the question of recalling P.W.1 does not arise. Per contra, the counsel for respondent submits that no prejudice would be caused to petitioner if she is recalled and cross-examined further and that civil revision petition under Article 227 of Constitution of India would not lie. There is no dispute that petitioner (wife) was subjected to lengthy cross-examination for two days by the counsel for respondent (husband). There is also no dispute that the respondent filed application to recall P.W.1 on the ground that he could not effectively instruct his Advocate for cross-examination of P.W.1 regarding the documents marked by her. From this, an inference can be drawn that the respondent filed application to fill up the lacunae in the evidence of P.W.1, which has already been closed. In such an event, witness cannot be recalled. This view is supported by the decision of Supreme Court in Vadiraj Nagappa Varnekar v Sharad Chand Prabhakar Gagate[1], wherein it was held as follows. It is now well settled that 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 any 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. In this case, the counsel for respondent submits that his client wants to cross-examine petitioner with regard to letters marked by her. When the letters are already marked and she was already cross- examined, the question of recalling does not arise. In that view of the matter, order of the lower Court cannot be sustained as it suffers from error apparent on the face of record and would result in miscarriage of justice. The civil revision petition is accordingly allowed and the impugned order is set aside. The trial Court is directed to dispose of the O.P. within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs. __________________ (V.V.S.RAO, J) July , 2010. YS [1] (2009) 4 SCC 410 (SC) : 2009 (3) ALT 25 (SC)