Civil Suit No. 45/390 of 2017 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.198 of 2022 Application under Articles 226 and 227 of the Constitution of India. -------------- Debi Prasad Rayaguru ….. Petitioner -versus- Basanti Mishra ….. Opposite Party For Petitioner : Mr. Bibhuti Bhusan Mishra, Advocate For Opposite Party : Mr. T. Panigrahi, Advocate -------------------------------------------------------------------------------- CORAM: HON’BLE MISS JUSTICE SAVITRI RATHO J U D G M E N T 31.07.2025 Savitri Ratho, J. This application has been filed by the plaintiff-petitioner with a prayer for quashing the impugned order dated 28.12.2021 passed by the learned Civil Judge (Senior Division), Pipili (hereinafter “trial court”) in Civil Suit No.45/390 of 2017/2010, rejecting the application filed under Order-18 Rule-17 of the Code of Civil Procedure (in short “CPC”) to recall the C.W.1, Laxmidhar Das (the Amin Commissioner) for his further cross-examination at the cost of the plaintiff. CMP No.198 of 2022 Page 1 of 22 FACTUAL BACKGROUND 2. That the suit had been filed by the plaintiff-petitioner praying for declaration of his right, title and interest over the suit property, confirmation of possession and permanent injunction against the defendant-opposite party and other reliefs. 3. Written statement and counter claim was filed by the defendant and written statement to the counter claim was filed by the plaintiff. An application had been filed by the defendant to appointment of a survey knowing Commissioner, along with the questions proposed to be asked to him. The Amin Commissioner was appointed under Order 26, Rule 9 of the C.P.C. and submitted his report. The plaintiff-petitioner filed an objection to the report
Facts
stating that it should be rejected. The defendant-opposite party also filed an objection to the report. The Amin Commissioner was examined on 23.11.2019 as C.W.1 and was cross examined by both the parties. 4. After about six weeks, an application under Order -18, Rule 17 of the C.P.C was filed by the plaintiff-petitioner to recall C.W.1, the Amin Commissioner at his cost, stating that various important questions could not be put to him as the plaintiff was of the impression that he had been examined as witness of the defendant CMP No.198 of 2022 Page 2 of 22 in I.A No. 198 of 2010 and not as a court witness. Objection to the same was filed by the defendant stating that the Amin Commissioner was deputed to answer the questions posed by the defendant and had submitted his report after proper scientific investigation during hearing of the interim application, application had been filed by the defendant for examining the Amin Commissioner for proper adjudication and the application had been allowed and his entire fees had been paid by the defendant. He was examined as a witness in the original suit on 23.11.2019 and his report was exhibited in the suit. He had been cross-examined by the counsel for the plaintiff a senior lawyer. So after disposal of the interim application, he cannot say that some questions were left out. IMPUGNED ORDER 5. The learned trial court rejected the application holding that the suit was of the year 2010 and the learned counsel for the plaintiff-petitioner and the defendant had already cross-examined the Amin Commissioner who had given his report after thorough verification of the suit plot, on 23.11.2019 and the application had been filed after one and half months. CMP No.198 of 2022 Page 3 of 22 SUBMISSIONS 6.
Legal Reasoning
10. We are of the opinion that if circumstances warrant, an opportunity to a party to re-call a witness for examining, cross-examining or re-examining can be granted by a Court in the exercise of its inherent jurisdiction under Section 151 C.P.C. 11. This Court in the case of Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, reported at (2009) 4 SCC 410 more particularly para 28 held as under: “28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and reexamination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.” (Emphasis supplied)” 12. In the case of K.K. Velusamy v. N. Palanisamy reported at (2011) 11 SCC 275, this Court discussed the power of the Court under Order 18 Rule 17 of CPC. It was held that this power is only for clarification i.e. to enable CMP No.198 of 2022 Page 18 of 22 Court to clarify any issue or doubt, it may have in regard to evidence led by parties by recalling any witness so that the Court itself can put questions to such witness and elicit answers. The relevant paras 9, 10 and 19 read as under: “9. 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. 10. 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. xxx xxx xxx 19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the CMP No.198 of 2022 Page 19 of 22 issues and will assist in rendering justice, and the court is satisfied that nonproduction earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses 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. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.” ANALYSIS AND CONCLUSION 10. From a reading of the provision and the decisions referred to above, it is apparent that power to recall a witness for further examination / cross-examination can be exercised by the Court at any stage – either on an application filed by any of the parties or on its own motion. The power is discretionary in nature and is to be exercised by the court sparingly in appropriate cases to clarify any doubts it may have in regard to the evidence led by the parties. But this power should not be exercised to permit filling up of lacuna in the evidence of a witness who has already been examined or for protracting the litigation. After hearing the submissions of the learned counsel and perusing the application of the plaintiff filed under Order 18, Rule 17 of the CPC and the objection of the defendant to the application, I was satisfied that the application was CMP No.198 of 2022 Page 20 of 22 not a frivolous one as the explanation of the plaintiff that he had been under the impression at the time of cross examination that the Amin Commissioner was a witness of the defendant for which some questions could not be asked is supported by the contents of the objections of the defendant. That apart, in view of the decisions of the Supreme Court in the case of KK Velasamy (supra), Vadiraj Nagappa (supra) and Rama Rati (supra) and as the application had been filed promptly and had been rejected by the learned trial court, primarily on the ground that it would delay the proceedings, I was inclined to set aside the impugned order and remit the matter for fresh consideration in accordance with law. 11. But in view of the recent decision of the Supreme Court in the case of Shubhkaran Singh (supra), I find that the impugned order is not liable for interference as it was filed under Order 18, Rule-17 of the C.P.C. 12. In view of the provisions of Section 151 of the C.P.C and the observations of the Supreme Court in the case of Shubhkaran Singh (supra), if the plaintiff-petitioner files an application under Section 151 of the C.P.C within a period of three weeks from today to recall the Amin commissioner for cross examination along with the questions, he proposes to ask him, the same shall be considered CMP No.198 of 2022 Page 21 of 22 by the learned trial court in accordance with law, on its own merit without being influenced by the order dated 28.12.2021 which is impugned in this CMP. In case the application is allowed, the cost shall be borne by the plaintiff and opportunity should be provided to the defendant to cross-examine the witness. 13. As the suit is pending since 2010, the learned trial court is requested to make an endeavour for expeditious disposal of the suit. ……………………… (Savitri Ratho) Judge Orissa High Court, Cuttack. Dated, the 31st July 2025 /RKS Signature Not Verified Digitally Signed Signed by: RANJAN KUMAR SETHI Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 02-Aug-2025 16:57:37 CMP No.198 of 2022 Page 22 of 22
Arguments
Mr. B.B. Mishra, learned counsel for the petitioner submitted that the learned counsel for the plaintiff-petitioner could not properly cross-examine the Amin Commissioner as he was of the impression that he was the witness of the defendant and was being examined in IA No.198 of 2010 and the same is mentioned in his petition. But this was not considered by the learned trial Court. To convince the Court that the plaintiff was justified in believing that the Amin Commissioner was the witness of the defendant, he has drawn the attention of the Court to the averments at paragraph-4 of the objection of the defendant (Annexure-7), where he has stated that after the case was transferred to the Court of the learned Senior Civil Judge, Pipili while hearing the interim application, the defendant had filed the application in the suit to examine the Amin Commissioner for proper adjudication of the interim case and the application was allowed and the defendant had paid the fees of the Amin Commissioner who was examined on 23.11.2019 and the Amin Commissioner report was exhibited in the original suit. He submitted that the petitioner is willing to pay the cost which may CMP No.198 of 2022 Page 4 of 22 be fixed by this Court for recall of the Amin Commissioner. He relied on the following cases in support of his submissions:- (i) K.K. Velusamy v. N. Palanisamy: (2011) 11 SCC 275; (ii) Vadiraj Nagappa v. Sharadchandra Prabhakar: (2009) 4 SCC-410 7. Mr. Panigrahi, learned counsel for the Defendant-opposite party vehemently opposed the prayer of the petitioner stating that as the Amin Commissioner had already been cross-examined by the plaintiff, the application to recall him for further cross- examination was with a view to linger the proceeding and had been rightly rejected by the learned trial Court. As the counsel for the plaintiff was an experienced lawyer, the submission that he was under the impression that the Amin Commissioner was a witness of the defendant cannot be accepted. He also submitted that the power under Order 18, Rule 17 of the CPC being discretionary in nature, is to be exercised sparingly and should not be exercised if it would protract the proceeding. As the plaintiff had not provided the questions to be asked, his application had been rightly rejected. He also submitted that the High Court in exercise of powers under Section 115 of the CPC should not interfere with the impugned CMP No.198 of 2022 Page 5 of 22 order. He has relied on the following cases in support of his submissions: - i) Rama Rati v. Mangi Ram (died) through legal heirs and others : 2016 (11) SCC 296 ii) Dr. Kanchan Acharya v. Jugal Kishore Das And Others : 2024 II CLR 1024, iii) Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri and others : (1987) 3 SCC 538 STATUTORY PROVISIONS 8. To decide this case, it would be apposite to extract the provisions of Section 151 of the C.P.C and Order 18 Rule 17, CPC. “151. Saving of inherent powers of Court :- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.” “Order 18. Hearing of the Suit and Examination of Witnesses. xx xx xx Rule 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 CMP No.198 of 2022 Page 6 of 22 time being in force) put such questions to him as the Court thinks fit.” JUDICIAL PRONOUNCEMENTS 9. The relevant paragraphs of the judgment of the Supreme Court in the case of K.K. Velusamy (supra), are extracted below:- “9. 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. 10. 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 moto, CMP No.198 of 2022 Page 7 of 22 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. 11. There is no specific provision in the Code enabling the parties to re- open 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 Code 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 re-opening 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 re-open 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. 12. The respondent contended that section 151 cannot be used for re- opening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of section 151 has been CMP No.198 of 2022 Page 8 of 22 explained by this Court in several decisions. We may summarize them as follows: (a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process. (b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances. (c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code. CMP No.198 of 2022 Page 9 of 22 (d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature. (e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief. (f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.” “16. Neither the trial court nor the High court considered the question whether it was a fit case for exercise of discretion under section 151 or Order 18 Rule 17 of the Code. They have not considered whether the evidence sought to be produced would either assist in clarifying the evidence CMP No.198 of 2022 Page 10 of 22 led on the issues or lead to a just and effective adjudication. Both the courts have mechanically dismissed the application only on the ground that the matter was already at the stage of final arguments and the application would have the effect of delaying the proceedings. (Emphasis supplied) “19. We may add a word of caution. The power under section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or 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 witnesses 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. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for CMP No.198 of 2022 Page 11 of 22 awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application. “22. In this case, we are satisfied that in the interests of justice and to prevent abuse of the process of court, the trial court ought to have considered whether it was necessary to re-open the evidence and if so, in what manner and to what extent further evidence should be permitted in exercise of its power under section 151 of the Code. The court ought to have also considered whether it should straightway recall PW1 and PW2 and permit the appellant to confront the said recorded evidence to the said witnesses or whether it should first receive such evidence by requiring its proof of its authenticity and only then permit it to be confronted to the witnesses (PW1 and PW2). In the case of Vadiraj Nagappa (supra), the Supreme Court has held :- “25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit, to clarify CMP No.198 of 2022 Page 12 of 22 any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.” “26. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re- examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re- examination-in- chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.” “28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and CMP No.198 of 2022 Page 13 of 22 re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC. 29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. 30. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the trial court to permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case.” In the case of Rama Rati (supra), the Supreme Court relying on the decision of KK Velasamy (supra), has held as follows: - “14. The rigour under Rule 17, however, does not affect the inherent powers of the court to pass the required orders for ends of justice to reopen the evidence for the purpose of further examination or cross-examination or even for production of fresh evidence. This power can also be exercised at any stage of the suit, even after closure of evidence. Thus, the inherent power is the only recourse, as CMP No.198 of 2022 Page 14 of 22 held by this Court in K.K. Velusamy (supra) at paragraph- 11, which reads as follows: “11. 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.” “18. The settled legal position under Order 18 Rule 17 read with Section 151 of the CPC, being thus very clear, the impugned orders passed by the trial court as affirmed by the High Court to recall a witness at the instance of the respondent “for further elaboration on the left out points”, is wholly impermissible in law. In the case of Dr. Kanchan Acharya (supra), this Court was deciding an application where prayer had been made for appointment of a Survey knowing Commissioner. In this case as CMP No.198 of 2022 Page 15 of 22 Amin Commissioner has already been appointed, the decision is not relevant for deciding the present case. The decision in Helper Girdharbhai (supra), deals with the powers of the High Court under Section 115 C.P.C and hence not necessary to be discussed for deciding this application. In the recent decision of the Supreme Court in the case of Shubhkaran Singh v. Abhayraj Singh: 2025 Livelaw SC 536: 2025 SCC Online SC 1028, the petitioner was challenging the rejection of his application filed under Order 18, Rule 17 of the C.P.C to recall a witness. While dismissing the application, the Supreme Court has held as follows :- “7. This Rule provides the Court with a power which is necessary for the proper conduct of a case. If it appears to a court trying the suit at any stage of the proceedings that it is necessary to recall and further examine a witness it can always do so. This power can be exercised even at the stage of writing a judgment by the court. It is, however, proper that this power should not be exercised lightly and the rule is that it should be used sparingly and in exceptional cases only. The power is to be used for removing ambiguities, for clarifying the statement and not for the purposes of filling up the lacuna in a party's case. It is true that the power can be exercised by the Court at its own initiative and may even be so done at the instance of a CMP No.198 of 2022 Page 16 of 22 party. Section 165 of the Evidence Act provides that a Judge may in order to discover or obtain proper proof of relevant facts, ask any question he pleases in any form at any time of any witness about any fact relevant. The section further provides that the parties shall not be entitled to make any objection to any such question, nor cross-examine any witness upon any answer given in reply to any such question without the leave of the Court. If the provisions of Order 18 Rule 17 are read along with the provisions of Section 165 of the Evidence Act it is clear that the power to recall and re-examine a witness is exclusively that of the court trying the suit. The parties to the suit cannot take any objection to the question asked nor can they be permitted to cross-examine any witness without the leave of the court. 8. The said rule, in our opinion, makes it abundantly clear that the right to put questions to the witness recalled under Rule 17 is given only to the court and even cross- examination is not ordinarily permitted on the answers given to such questions, without the leave of the court. Under that rule therefore, a witness cannot be recalled at the instance of a party for the purpose of examining, cross examining or re-examining, and that rule is not intended to serve such purpose, and the purpose for which that rule can be invoked is the one that is indicated above. 9. In this connection, we may refer to the following observations in Sultan Saleh Bin Omer v. Vijayachand CMP No.198 of 2022 Page 17 of 22 Sirmal [A.I.R. 1966, A.P. 295.], which accords with the above view: “A close reading of this rule makes it obvious that the right under that Rule to put question at any stage or a suit or recall any witness for that purpose, is given to the Court. The court can put questions to the witness recalled, and no cross-examination is ordinarily allowed upon the answers to the questions put by the Judge without leave……... It cannot therefore be said that an opportunity to a party to recall any witness for the purpose of examining cross-examining or reexamining is governed by O. 18, R. 17 C.P.C. ………..”