inherent powers of the court under section 151 of the Code of Civil Procedure cannot be exercised to enable the party to fill up lacuna in the evidence. The impugned order, though passed by invoking powers under Order 18 Rule 17 of the Code of Civil Procedure, however, appears to be passed by resorting to powers of the Court under Order 18 Rule 16 of the Civil Procedure Code r/w section 138 of the Indian Evidence Act, 1872. This is clear from the fact that the evidence adverse to the original plaintiffs appeared for the first time only when original defendant no. 1 was cross examined by original defendant nos. 4 to 6 and till that time, original plaintiff was not aware nor did he anticipate that any such adverse material would appear later on against him during cross examination of defendant no. 1 by original defendant nos. 4 to 6. Therefore, so far as this new material which was adverse to the interest of original defendant was concerned, original plaintiff would have right to cross examine the witness i.e. original defendant no. 1 in terms of section 138 of the Indian Evidence Act and, to enable him to do so, the trial Court invoked its powers not under Rule 17 but under Rule 16 of Order 18 of the Code of Civil Procedure. This is also not a case wherein the original plaintiff has been allowed to fill up the lacuna in the evidence. So, the case of Balkrishna would be of no help to the petitioners.
