ORDER : 7.4.2014 - The petitioners, in this writ petition, have prayed to quash the order dated 18.7.2009 passed by the learned Civil Judge (Senior Division), 2nd Court, Cuttack in T.S. No. 437 of 2000 rejecting their application under Order 18, Rule 17 of the Code of Civil Procedure to recall D.W.8 for his re-examination in order to clarify certain ambiguity. The facts leading to the present case are as follows : The opposite parties as plaintiffs filed the suit for declaration that the registered gift deed dated 15.2.1993 and registered gift deed dated 12.2.1993 executed by Late Kanduri Charan Dash in favour of two of his grandsons as void, illegal and in-operative as the property covered under those gift deeds are not the self acquired property of the donor, but are the joint family property, inasmuch as the said property acquired out of joint family income. The defendant Nos. 2 to 4 while traversing the averments made in the plaint have pleaded that the said Kanduri Charan Das executed a deed on 10.5.1996 declaring that the property gifted in favour of defendant Nos. 3 and 4 were his well acquired property but in view of income tax raid, the donor being apprehensive of further trouble, stated in the gift deeds. Exts. C and D that the properties covered there under were acquired from out of joint family income. D.W.8, who is defendant No. 2 while deposing in Court, in his cross-examination affirmed the said plea taken in the written statement. However, the third sentence recorded in answer to the question put to him in the cross-examination was recorded in such a manner so as to leave an impression as if the witness has made a statement which runs contrary to his own plea in the written statement and his version in the examination-in-chief and also in the subsequent declaration made by said Kanduri Charan Das to the effect that properties covered under gift deeds are not the joint family property but it was stated as such only to avoid the rigors of the Income Tax. The said third sentence recorded in the cross-examination of D.W.8 are as follows : "The averments in the deeds that the lands were purchased out of joint family funds is correct." In view of such statement made by D.W.8, they filed an application immediately thereafter for re-examination of D.W.8 to explain the said statement. The said third sentence recorded in the cross-examination of D.W.8 are as follows : "The averments in the deeds that the lands were purchased out of joint family funds is correct." In view of such statement made by D.W.8, they filed an application immediately thereafter for re-examination of D.W.8 to explain the said statement. The said application was contested by the plaintiffs and they have raised objection that in case D.W.8 will be re-examined, they will be highly prejudiced as the truth which has come out of the mouth of D.W.8 in his cross-examination will be wiped out. The Court below rejected the said application by the impugned order on the finding that if the present petition will be allowed, then the valuable right which accrued in favour of the plaintiffs during cross-examination will be wiped out definitely they will be prejudiced and such admission of D.W.8 cannot be taken away by re-examination and no purpose will be served, if he will be re-examined further. Learned counsel for the petitioners submitted that re-examination of D.W.8 is necessary as he has made inconsistent statement in the written statement as well as the document shown in Exts. C and D that the property was self acquired property of such Kanduri Charan Das. However, for the rigors of income tax it was stated that those properties are acquired from joint family fund, which has already been stated by the said witness in his evidence on affidavit. Therefore, the third sentence in cross-examination as stated above may be clarified or explained, failing which the same will create confusion and discrepancy regarding the stand taken by the defendants. Under Section 138 of the Evidence Act, it is necessary to re-examine the witness to clarify such inconsistency or discrepancy between the examination-in-chief and cross-examination of the witness and explain the statement made inadvertently in cross-examination to remove any discrepancy. In support of his contention, he has cited the decisions rendered in cases of Vadiraj Naggappa Vernekar (dead) through L.Rs. v. Sharadchandra Prakhakar Gogate, 2009 (II) OLR (SC) 76, K.K. Velusamy v. N. Palanisamy, 2011 (II) OLR (SC) 13, Lalit Mohan Guru and others v. Laxminarayan Guru and others, 1996 (II) OLR 435, Rammi alias Rameshwar v. State of Madhya Pradesh, AIR 1999 SC 3544 . v. Sharadchandra Prakhakar Gogate, 2009 (II) OLR (SC) 76, K.K. Velusamy v. N. Palanisamy, 2011 (II) OLR (SC) 13, Lalit Mohan Guru and others v. Laxminarayan Guru and others, 1996 (II) OLR 435, Rammi alias Rameshwar v. State of Madhya Pradesh, AIR 1999 SC 3544 . Learned counsel for the opposite parties, however, vehemently opposes the stand taken by the petitioner and submits that there is no ambiguity or discrepancy in the statement of D.W.8 in his cross-examination. He further submits that in case the said statement will be explained or wiped out, it will highly prejudice the plaintiffs and the impugned order need not be interfered with. In the case of Vadiraj Naggappa Vernekar (supra), the apex Court held that Court may recall a witnesses on its own or upon application by any party to the suit to clarify ambiguities in cross-examination after such re-examination. In the case of Lalit Mohan Guru and others (supra) this Court held that re-examination is necessary for the purpose of explaining the inconsistency or discrepancy between the Examination-in-Chief or cross-examination or to explain statement inadvertently made in cross-examination or to remove any ambiguity. In the case of Rammi alias Rameshwar (supra), the apex Court held that re-examination of witnesses need not be confined to clarification of ambiguities brought out in cross-examination. If the party calling the witness feels that explanation is required for, any matter referred to in cross-examination, he has the liberty to re-examine the witness. The Apex Court in the cases of K.K. Velusamy (supra) held that the Court, at any stage of a suit, may recall any witness who has been examined, to put such question to him as it think fit. The power to recall any witness under Order 18, Rule 17 can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit requesting the Court to exercise the said power. The said power is discretionary. It may have in regard to the evidence led by the parties. The power to recall any witness under Order 18, Rule 17 can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit requesting the Court to exercise the said power. The said power is discretionary. It may have in regard to the evidence led by the parties. Further, it was held that where the application is found to be bona fide and where the additional evidence, oral and documentary, will assist the Court to clarify the evidence on the issues and will assist in rendering justice and the Court is satisfied that non-production earlier was for valid and sufficient reasons, the, Court, may exercise its discretion to recall the witness or permit the fresh' evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The Court should firstly award appropriate costs to the other party to compensate for the delay. In view the above settled position of law, on perusal of the impugned order it appears that the Court below has not considered the application filed by the defendant under Order 18, Rule 17 of the Code of Civil Procedure on its proper perspective to recall D.W.8 to clarify the ambiguity and inconsistent statement made by him in his cross-examination. The statement made by D.W.8 in his cross-examination will not be wiped out however, the said statement will be considered in accordance with the law of evidence. Accordingly, the writ petition is allowed, the impugned order is set aside with cost of Rs. 5,000/- (Rupees five thousand) which will be payable to the plaintiffs in the Court below by 30th April, 2014. Further, both the parties are directed to appear before the Court below on 25th April, 2014 through their respective counsel positively and on their appearance, the Court below shall fix a date for re-examination of D.W.8. Petition allowed.