The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1 of 2023 Satyanarayan Das and another Petitioners Mr. Sourya Sundar Das, Senior Advocate being assisted by Ms. Suman Modi, Advocate and Miss Sobhna Das, Advocate …. -versus- Odisha Small Industries Corporation Ltd., Cuttack …. Opp. Party CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 20.01.2023 1. 1. This matter is taken up through Hybrid mode. 2. Order dated 31st October, 2022 (Annexure-6) passed by learned 1st Additional Senior Civil Judge, Cuttack in Money Suit No.303 of 1995 is under challenge in this CMP, whereby an application filed under Order XVIII Rule 17 CPC to recall DW-1 for further cross-examination by the Plaintiff, has been allowed. 3. Mr. Das, learned Senior Advocate submits that the Defendants are Petitioners in this CMP. The petition under Order XVIII Rule 17 CPC is frivolous and misconceived. The said application is also not supported by any affidavit. After DW-1 was cross-examined at length, his evidence was closed. Immediately thereafter, an application was filed to recall the witness for further cross-examination making a misleading statement that some vital questions were left out to be put to DW-1, which are allegedly essential for just adjudication of the suit. No questionnaire was appended to the petition under Order Page 1 of 4 // 2 // XVIII Rule 17 CPC for consideration to recall DW-1. The money suit of the year 1995 was dismissed for default on 20th April, 2000 and it was restored only on 3rd July, 2018. In the instant case, Plaintiff has not led any evidence and it was closed on 3rd December, 2021. In such event, further cross-examination of DW-1 will not only be prejudicial to the Defendants, as it will linger the suit, but also amounts to abuse of process of Court. He relied upon a decision in the case of K.K.Velusamy Vs. N.Palanisamy, reported in (2011) 11 SCC 275, wherein it is held as under:- “8. 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].” It is his submission that the discretion conferred under Order XVIII Rule 17 CPC should be exercised sparingly and not in a routine manner on mere asking for it. Discretion should be exercised to clarify any doubt in the mind of the Court with regard to evidence led by the parties. The said power is not intended to be used to fill up the omission in the evidence of a witness, who has already been examined. In the instant case, the Plaintiff by recall wants to patch up the lacunae in its case. Page 2 of 4 // 3 // Hence, the impugned order is not sustainable and hence liable to be set aside. 4. Considering the submission of Mr. Das, learned Senior Advocate and on perusal of record, it appears that the petition under Order XVIII Rule 17 CPC (Annexure-4) is not properly drafted, but on perusal it appears that, the Plaintiff intends to put certain questions with regard to statement of accounts as well as rate of interest to the witnesses, namely, DW-1, which he could not. It also appears that the application for recall was filed on the same day immediately after the closure of evidence of DW-1. Further, Mr. Das, learned Senior Advocate raised an objection that the petition was not supported by any affidavit. Hence, the same is not maintainable. Plaintiff/Opposite Party in the petition has only stated the subject matter on which the question should be put to DW-1. No factual averments have been made in the said petition, which would require affirmation on oath. Neither the Rule requires that the petition of such nature should be supported by affidavit nor is it a petition under Rule 431 of G.R.C.O. (Civil). It is an enabling provision which confers power on the Court to exercise its discretion to recall a witness. In the instant case, when the Court has exercised its discretion in favour of the Plaintiff to recall a witness, the objection raised by Mr. Das, learned Senior Advocate to the effect that the petition was not supported by affidavit is not sustainable. True it is that, the Money Suit is of the year 1995, but that by itself cannot be a ground to reject an application under Order XVIII Rule 17 CPC, when the same is necessary to clarify doubt in the mind of learned trial Court. On perusal of Page 3 of 4 // 4 // the impugned order, it appears that learned trial Court, after discussing the rival contentions of the parties observed that further cross-examination of DW-1 is essential on statement of accounts dated 8th December, 1995 and the rate of interest which relates to the subject matter of dispute and essential for just adjudication of the suit and for ends of justice. It also appears that the petition under Order XVIII Rule 17 CPC was filed on the very same day immediately after the evidence of DW-1 was closed. Thus, the petition appears to be bona fide. Since the Court has exercised its judicial discretion after taking into consideration the contentions raised by learned counsel for the parties, I am not inclined to entertain the CMP. However, since the money suit is of the year 1995, learned trial Court shall make an endeavour to dispose of the suit at an early date without granting unnecessary adjournments. 5. With the aforesaid observation, the CMP is disposed of. s.s.satapathy (K.R. Mohapatra) Judge Page 4 of 4