N M VISWANATH Vs. B V NANJUNDAPPA

JUDGEMENT

(1.) This is a revision under Section 115 of the Code of Civil Procedure, for short, 'Code' from the order dated 23-9-1995, passed by XV Additional City Civil Judge, Bangalore, rejecting the revisionist-lst defendant's application under Order 18, Rule 17, for recalling P.W. 3, who had already been examined and cross-examined. The Court below considered the matter and opined that application was devoid of merits and rejected it. This order had been passed disposing of the application filed under Order 18, Rule 17, in O.S. No. 4847 of 1980.

(2.) I have heard the learned Counsel for the revisionist Sri P.D. Surana, holding brief for Sri D.R. Chandrappa, Counsel for the 1st defendant. Under Section 115 of the Code, the first ingredient, to be shown and made out by the party seeking to challenge the orders under Section 115 of the Code of Civil Procedure, for short, 'Code', is that the order impugned amounts to be a case decided. It is upon the learned Counsel for 1st defendant-revisionist to satisfy me about it and the learned Counsel for the 1st defendant failed to satisfy. The test to determine whether an order amounts to be a case decided is if the order impugned amounts to a decision on some right, may be substantive right relating to the title in the suit, or some right relating to proceedings in the suit.-

(3.) Order 18, Rule 17 of the Code confers a discretionary power on the Court to recall a witness if it thinks proper. It does not by itself Confer a right on a party. No doubt, party may move, but, it is never a right of a party to recall a witness already examined, really, it is the discretion of the Court to permit or not to permit. No doubt, discretion is to be exercised judiciously. When no right of the party itself is decided by this impugned order and particularly, when examination and cross-examination have already been held, the question of recalling is purely a matter of discretionary power of the Court, no doubt, to be exercised judiciously, an order refusing to recall a witness cannot be termed as a case decided. It is a pure and simple locutary order and not a case decided under Section 115 of the Code.