The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.463 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Rabi Narayan Rout and Another …. Petitioners -versus- Bairagi Khuntia … Opposite Party Advocate(s) appeared in this case:- For Petitioners : Mr. Lingaraj Sarangi, Advocate For Opp. Party
Legal Reasoning
: Mr. S.S. Bhuyan, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 28th November, 2025 B.P. Routray, J. 1. Heard Mr. L. Sarangi, learned counsel for the Petitioners and Mr. S.S. Bhuyan, learned counsel for the Opposite Party. 2. Present CMP is directed against order dated 3rd February, 2025 of learned 2nd Additional Senior Civil Judge, Bhubaneswar passed in CS No.839 of 2008, wherein the prayer of the defendants to recall P.W.1 for further cross-examination has been rejected. CMP No.463 of 2025 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 3. Present opposite party being the plaintiff filed CS No.839 of 2008 praying for a declaration that the agreement and General Power of Attorney dated 18th September, 1993 are not binding being tainted playing fraud and further, to declare their status as tenants along with permanent injunction and consequential reliefs. 4. Though the defendants appeared in the suit in time but did not file their written statement. Ultimately the prayer to file the written statement was rejected. Then the plaintiff produced his witness and he was examined as P.W.1. After examination-in-chief, the date was fixed for cross-examination of P.W.1 by the defendants. Despite several dates were fixed for said purpose the defendants did not cross-examine the witness. It was fixed to 4th January, 2024 for further cross-examination of P.W.1 and the same was deferred on the prayer of the defendants. The date was then adjourned to 1st February, 2024, subject to payment of cost of Rs.2000/- by the defendants. Though the defendants paid the cost, but did not cross- examine P.W.1 also on 1st February, 2024 and the date was then fixed to 22nd February, 2024. On 22nd February, 2024 again time was taken by the defendants and the date was fixed to 1st March, 2024. On 1st March, 2024 the defendants again took time and the date was CMP No.463 of 2025 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 fixed to 27th March, 2024. On 27th March, 2024 though the defendants filed their hazira but were found absent on repeated call for which the learned trial court waited till 1pm and then closed the cross-examination of P.W.1 from the side of defendants. 5. The defendants filed recall petition on 18th April, 2024 praying to recall P.W.1 on the ground that the conducting Advocate was busy in High Court in a matter and so he could not attend the court in time. Said prayer was rejected by the trial court on 3rd February, 2025 vide present impugned order. This is challenged in present CMP. 6. It true that after deletion of Rule 17-A in 2002 amendment, the scope of recalling a witness in terms of Order 18, Rule 17 has been limited for the party. In exercise of power under Order 18, Rule 17 though the court is authorized to recall a witness as and when necessary but in this regard the party has very limited scope to pray for recall of the witness. In K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275, the Hon’ble Supreme Court while explaining the power and scope of the party under Order 18 Rule 17 read with Section 151 of C.P.C., has explained as follows:- CMP No.463 of 2025 Page 3 of 7 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 “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. (Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate [(2009) 4 SCC 410 : (2009) 2 SCC (Civ) 198] .) 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. 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 CMP No.463 of 2025 Page 4 of 7 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 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. Xx .. xx .. xx .. 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. CMP No.463 of 2025 Page 5 of 7 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 20. 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 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. 21. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. The courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, reopening, recalling, or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory applications which in turn add to the period of pendency.” 7. In the given case at hand it is found that despite many opportunities were given to the defendants to cross-examine P.W.1, as narrated in above paragraph, he failed to cross-examine said P.W.1. Now the petition has been filed to recall said P.W.1 on the ground that the conducting counsel was busy in High Court in a matter. Of course, such a ground to adjourn the matter has been CMP No.463 of 2025 Page 6 of 7 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 expressly prohibited in Order 17, Rule 1(2)(c). The P.W.1 in the instant case has filed his written evidence affidavit in the year 2018 and thereafter as per the opinion of the learned trial court the copy of the same could be served on the counsel for the defendants with much difficulty in the year 2019. It is true that the defendants have cross-examined P.W.1 in part and took time to further cross-examine said P.W.1 on different dates. Despite they have paid the cost for such adjournment to the plaintiff but did not bother to complete their cross-examination of P.W.1 in time. This shows the conduct of the defendants to delay the matter and therefore, looking at the scope of the party to recall the witness, such prayer of the defendants to recall P.W.1 has been rightly refused by the learned trial court. 8. In the circumstances narrated and the reasons stated above, the CMP is dismissed. ( B.P. Routray) Judge M.K. Panda/P.A CMP No.463 of 2025 Page 7 of 7