Bhimsen Ojha And Another vs Samuel Devashish James And Another

Sashikanta Mishra, J

The Petitioners, who are the plaintiffs in C.S. No.793/2017 pending in the Court of learned Civil Judge (Sr. Division), 4th Additional Court, Cuttack have filed the present application under Article 227 of the Constitution of India seeking to challenge the orders dtd.06.12.2023 and 24.1.2024 passed in the said case.

Briefly stated, the plaintiffs have filed the above suit for recovery of possession of the suit property from the defendants. After commencement of hearing, three witnesses were examined by them being P.Ws.1,2 and 3. While P.Ws.1 and 3 were cross-examined by the defendants, P.W.2 was cross-examined only by Defendant No.2 with cross-examination by Defendant No.1 being declined. P.W.2 was thus discharged. The plaintiffs closed evidence from their side whereupon Defendant No.1 filed an application on 05.8.2023 seeking recall of order dated 21.7.2023 by allowing him to cross-examine P.W.2. Said application was however withdrawn. Again on 12.9.2023, Defendant No.1 filed similar application. The plaintiffs filed their objection questioning the maintainability of the application. By order dated 06.12.2023, the trial Court allowed the application subject to payment of cost of Rs.200/- with direction to the plaintiffs to produce P.W.2 for cross-examination by Defendant No.1. Said order is impugned in the present application. Further, the plaintiffs filed an application on 05.1.2024 to recall the order dtd.6.12.2023, but the same also came to be rejected. Said order is also impugned.

Heard Mr. S. Dash (A), learned counsel for the plaintiff-petitioners. Despite valid service of notice, there was no appearance from the side of the defendants. As such, this Court requested Mr. A.R.Dash, learned counsel to assist the Court as Amicus Curiae to which he consented and made submissions.

Mr.Dash would argue that there is no provision in the C.P.C. to recall a witness for further cross-examination once he has been discharged. Though the trial court has not referred to any provision of law in the impugned order yet, the power under Order XVIII Rule 17 as well as Section 151 of C.P.C. cannot be utilized for such purpose. Mr. Dash further submits that the Defendant No.1 has not cited any cogent reason for failing to cross-examine P.W.2 at the relevant time. The Trial Court has also not considered the above fact. In support of his arguments, Mr. Dash has relied upon a judgment of the Supreme Court in the case of K.K.Velusamy vs. N.Palanisamy; (2011) 11 SCC 275.

Mr. Dash, learned Amicus Curiae, submits that after amendment of the C.P.C. in 2002 by way of deletion of the provision under Order XVIII Rule 17-A, the scope of recalling a witness for cross-examination has become very limited. Referring to the position of law Mr. Dash would argue that recall of a witness after his discharge cannot be routinely directed. Mr. Dash has also cited a recent judgment of the Supreme Court in the case of Shubhkaran Singh vs. Abhayraj Singh and others; 2025 Live Law (SC) 536.

This Court observes that the impugned order does not mention as to under which provision of law, the petition was entertained and allowed. The petition filed on 12.9.2023 by Defendant No.1 also does not refer to any provision of law. Be that as it may, fact remains that nothing can be done unless the same is provided by law. In this context, it would be apt to refer to the provision under Order XVIII Rule 17 C.P.C. which reads as follows:

“17. Court may recall and examine witness. -The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.”

The power of the Court under the above provision has been delineated by the Supreme Court in the case of K.K.Velusamy vs. N.Palanisamy (supra) in the following words:

Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks 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 power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. (Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate [(2009) 4 SCC 410 : (2009) 2 SCC (Civ) 198] .)

Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.

There is no specific provision in the Code enabling the parties to reopen the evidence for the purpose of further examination-in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for reopening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under Section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.”

K.K. Velusamy vs. N.Palanisamy (supra) has been subsequently referred to by the Supreme Court with approval in Bagai Construction vs. Gupta Building Material Store; (2013) 14 SCC 1. In the recent judgment of the Supreme Court passed in Shubhkaran Singh vs. Abhayraj Singh and others (supra), K.K.Velusamy (supra) was also relied upon. Thus, the position of law as it stands is that the Court has power to recall and further examine a witness but such power should not be exercised lightly and must be used sparingly and in exceptional cases only. It cannot be a routine direction. In other words, such an order recalling a witness must be justified by adequate reasons.

Viewed on the anvil of law referred above, this Court is of the considered view that the impugned order dtd.06.12.2023 falls far short of the legal proposition referred above. Firstly, the Court below has not made the effort to ascertain and satisfy itself that Defendant No.1 had valid and bonafide reasons for not cross-examining P.W.2 at the relevant time. It has been held by the Court below that if such opportunity is not granted to Defendant No.1 to prove his case he may be prejudiced and that law is well settled that opportunity should be given to the defendants to cross-examine the witness for just and effective decision of the case so also in the interest of justice. The proposition is correct but the application is wrong. To amplify, opportunity is to be given to the defendants to cross-examine, but here the Defendant No.1 being given the opportunity at the relevant time chose not to avail it. So, the same principle will not apply while dealing with an application to recall a witness for cross-examination. Moreover, as has been held in the decision cited above, a witness cannot be recalled only on the ground that it would not cause any prejudice to the other party. This Court therefore, is of the view that the impugned order cannot be sustained in the eye of law and deserves interference.

Before parting with the case, this Court would like to point out that the impugned order dtd.6.12.2023 otherwise contains palpable errors inasmuch as though the petition for recall was filed by Defendant No.1, yet the impugned order reads as follows:

“The plaintiff-petitioner in her petition contended that after closure of cross-examination from the side of defendant no.2, the present defendant had to cross-examine P.W.2 on 21.07.2023 but due to some unavoidable circumstance the defendant No.1 could not cross-examine P.W.2 on that day for which the Court has declined cross-examination of P.W.2 on behalf of defendant no.1. Since the defendant no.1 is the main contesting defendant, cross-examination of P.W.2 on his behalf is important for the just decision of the case. Therefore, he prays before the Court that the order dated 21.07.2023 be recalled and defendant no.1 may be permitted to cross-examine P.W.2 otherwise he shall be highly prejudiced.

xxx                                                              xxx                                                                       xxx                                                           xxx                                           xxx”

(Emphasis added)

Again, in the last paragraph of the judgment, it is mentioned that on 21.7.2023, P.W.1 namely, Subas Das was examined whereas Subas Das was actually examined as P.W.2. It is apparent that the order was not corrected by the learned Civil Judge. It is the duty and responsibility of the Court to ensure that the orders passed by it are factually correct and free from errors before signing the same.

In the final analysis, as has already been held, this Court finds the impugned order dated 06.12.2023 unsustainable in the eye of law. Consequently, the order dtd.24.1.2024 is also held unsustainable. Resultantly, the C.M.P is allowed. The impugned orders are set aside.

Before parting, this Court places its appreciation on record for the able assistance rendered by Mr. A.R.Dash as Amicus Curiae.