HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.3120 of 2008 Dated 30-11-2010 Between: Ommi Sanyasirao and another. …Petitioner. And: Sri Saibaba Temple Trust, represented by its Trustee, Visakhapatnam and others. …Respondent. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.3120 of 2008 ORDER: This revision is at the instance of defendant Nos.1 to 4 who are aggrieved by the order of the court below refusing to recall P.W.3 for cross-examination. Heard both the learned counsel. Mr.A.Veeraswamy, learned counsel for the respondents has given the chronology to establish the conduct of the petitioner and to contend that the said conduct shows that no indulgence is deserved to be shown to the said defendants. In the aforesaid suit filed by the respondent for perpetual injunction, the petitioner examined D.Ws.1 to 3. So far as P.W.3 is concerned, the suit was coming up for cross-examination on 11-01-2007 and as there was no representation on behalf of the revision petitioners/defendants, the cross-examination was treated as nil and as there was no further evidence offered on respondent’s part and as petitioner’s were not appearing, their side of evidence was also closed. The revision petitioners thereafter filed I.A.No.3203 of 2007 to reopen and to examine D.W.1 which the trial Court allowed on 11-3-2008 and as no further evidence was reported, the defendant’s evidence was closed. Again the petitioner filed another application for reopening i.e., I.A.No.800 of 2008 proposing to examine D.Ws.2 and 3. The trial Court granted said indulgence also and D.Ws.2 and 3 were also examined. While the suit was posted for cross-examination of D.W.3 on 8-7-2008, the petitioners moved the present application to recall P.W.3 on 21-6- 2008. Learned counsel therefore states that if really the revision petitioners/defendants wanted to cross-examine P.W.3, they could have made such an application at the earliest time after 11-1- 2007. But deliberate attempt to make this belated application shows that the revision petitioners are only interested in delaying the suit. This court while issuing notice on admission on 1-8-2008 had initially granted stay for two weeks and the same was extended on 14-8-2008 for four more weeks but thereafter, there was no stay granted. Learned counsel further informed that the suit however is pending at the stage of cross-examination of D.W.3. Looking at the chronology, it thus supports the claim of the respondent that revision petitioners are not very diligent in prosecuting the suit and have repeatedly filed applications on one provision or the other to either reopen the evidence or to adduce further evidence etc., The procedural lapses no doubt stare against the petitioners. The petitioners counsel however has relied upon a decision of this court in PANTHAM BRAHMAM vs. GOLLIPALLI SWAMINAIDU ([1]) to advance the proposition that under Order 18 Rule 17 C.P.C., the trial Court has power to recall a witness at the at any time either suo motu or on application and use the said power in an appropriate situation, the only condition therefor is that Court be satisfied of necessity of recalling a witness. Learned counsel also relied upon another decision reported i n VADDE SANPANGI SRINIVASULU vs. BECCANI LAKSHMI REDDY ([2]). However, the said decision applies in different facts where the witness who was examined by one party was sought to be recalled by another party. Similarly another decision Madras High Court in S.S.S.DURAI PANDIAN vs. S.A.SAMUTHIRA PANDIAN ([3]) is also relied upon but that case also is on different set of facts wherein the witness who was examined and cross examination was sought to be recalled for the purpose of re-cross- examination. In the present case on hand, P.W.3 has not been cross- examined at all and for lapse on the part of the petitioner, the cross-examination of the said witness was not allowed. Learned counsel for the respondents has relied upon a decision reported in VADIRAJ NAGGAPPA VERNEKAR (DEAD) THROUGH LRS. v. SHARADCHANDRA PRABHAKAR GOGATE ([4]) wherein Order 18 Rule 17 is elaborately considered by the Honourable Supreme Court and it was held that the said provision can not be used to fill up omissions in the evidence of a witness who has already been examined. In that case on facts, the witness who was already examined and cross-examined was sought to be recalled for further examination and in the opinion of the Supreme Court, the same was impermissible as it amounts to filling up lacunae in the evidence already adduced especially in view of the fact that the evidence which was sought to be adduced on recalling was available even at the time of examination of the witnesses earlier. The Honourable Supreme Court in M.M.AMONKAR v. DR. S.A.JOHARI ([5]), while considering the scope of Article 227 in dealing with an application under Order 18 Rule 17 CPC, came to a finding that unless the reasons given by the trial court in rejecting an application under Order 18 Rule 17 CPC can be said to be moonshine, flimsy or irrational, the rejection of the application cannot be dubbed as suggestive of non-judicial approach or bias or partiality on the part of the trial court merely because in the exercise of its discretion another court might have taken a different view and allowed the application. The present impugned order shows that the application has been rejected on the ground that opportunity was earlier given to the petitioner, but the petitioner failed to avail the opportunity. I also find from the affidavit that only reason given for not cross- examining P.W.3 is that the omission was neither wilful nor wanton. It is therefore evident that lapses on the part of the petitioner on the earlier occasion when P.W.3 was not cross- examined by them is no doubt evident but in the interest of justice, cross-examination of P.W.3 is likely to result in some prejudice to the petitioner. It is well settled that the procedure being handmade, in the appropriate fact situations, the Court would appropriately mould it to advance the cause of justice. Since P.W.3 has already been examined by the respondents and his availability for cross-examining is not disputed, there would be no irreversible prejudice to the respondents if the application to recall P.w.3 is allowed. I am of the opinion that P.W.3 ought to have been permitted to be recalled for cross examination but however for the delays and obstructions caused by the petitioner, he should be mulcted with costs of Rs.2,500/- (Rupees two thousand five hundred only) payable to the 1st respondent trust. The Revision is accordingly allowed subject to the condition above and if the petitioner deposits the costs with the 1st respondent Trust within a period of two weeks from today, the Court below shall fix a date for cross-examination of P.W.3 and it is for the petitioner to avail the said opportunity on that date. Thereafter, the suit shall proceed from the stage of cross- examination of D.W.3 and if there is no further evidence on the part of the defendants, the court below shall hear the arguments and dispose of the suit expeditiously and in any case before the end of February, 2011. Office to communicate the copy of order to the trial Court within one week along with the records if any. _____________________________________ JUSTICE VILAS V. AFZULPURKAR Dated 30-11-2010 Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.3120 of 2008 Dated 30-11-2010 [1] 1997 (2) ALT 652 [2] 1998 (2) ALT 445 [3] 1998 (2) CCC 9 (Mad.) [4] (2009) 4 SCC 410 [5] (1984) 2 SCC 354 = AIR 1984 SC 931