The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.587 of 2025 Pradeep Kedia @ Pradip Kumar Kedia …. Petitioner Mr. M. Mohanty, Advocate -Versus- Binita Agrawal and others …. Opposite parties CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 08.05.2025 Order No. 01. 1.
Legal Reasoning
Heard Mr. Mohanty, learned counsel for the petitioners. 2. No notice is issued to opposite party No.1 as the matter is disposed of at the stage of admission. Notices vis-(cid:224)-vis proforma opposite party Nos.2 to 8 are dispensed with as the same is not necessary. 3. Instant petition is filed by the petitioner challenging the impugned order dated 26th March, 2025 passed in C.S. No.108 of 2021 by learned Civil Judge (Senior Division), (LR & LTV), Balangir as per Annexure-3 in terms of Order 18 Rule 17 CPC read with Section 151 CPC seeking recall of P.W.1 and D.W.1 for further cross-examination was declined. 4. Mr. Mohanty, learned counsel for the petitioner submits that the petitioner is defendant No.1 in the suit instituted by opposite party No.1 for partition in respect of suit schedule properties and therein, he is still to adduce evidence and at that stage, in order to confront them with regard to the Page 1 of 5 relinquishment, which had taken in 1999, recall was applied for with an application under Order 18 Rule 17 CPC but on the ground of delay and laches and change in engaged counsel with such a request having been received, it was refused. The contention of Mr. Mohanty, learned counsel is that further cross- examination of the witnesses, namely, P.W.1 and D.W.1 is highly essential, especially, with regard to the relinquishment of the interest by the plaintiff and proforma defendants but it has not been taken judicial notice of by learned court below and while advancing such an argument, he relies on a decision of the Apex Court in Shubhkaran Singh Vrs. Abhayraj Singh and others decided in SLP (C) Nos.12012-12013 of 2025 dated 5th May, 2025. 5. A copy of the plaint is at Annexure-1 and the same is perused. Admittedly, the suit is for partition simplicitor. A copy of the WS is filed by the petitioner as at Annexure-2. The suit is at the behest of opposite party No.1 seeking such partition. Since, further cross-examination of P.W.1 and D.W.1 was demanded with an application as per Annexure-3, it has been turned down by learned court below vide Annexure-4. 6. Order 18 Rule 17 CPC stipulates that the Court may at any stage of a suit recall any witness, who has been examined and subject to law of evidence for the time being in force put such questions to him as it thinks fit. In fact, the aforesaid rule provides a court, the discretion and authority, to recall a witness for a just decision in the suit. In the case law referred as above, the intent and purport of Order 18 Rule 17 CPC has been discussed reaffirming the view expressed in K.K. Velusamy Vrs. N. Page 2 of 5 Palanisamy (2011) 11 SCC 275. For better appreciation, the relevant extract in Para 12 therein, is reproduced herein below: “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 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. Page 3 of 5 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 the additional evidence, oral or and where 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 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.” that 7. In the case at hand, according to Mr. Mohanty, learned counsel for the petitioner, such further cross-examination of P.W.1 and D.W.1 is absolutely necessary for proper and effective adjudication of the suit for partition since the claim is advanced by the petitioner as one of the defendants about the relinquishment by the plaintiff and proforma defendants, which has been pleaded as per Annexure-2. Learned court below as it appears declined the same since the request for such recall is made with the change of counsel by the petitioner. It could not have prevailed upon learned court below while denying such recall of P.W.1 and D.W.1, if a case is made out for the same. Of course, Page 4 of 5 from the impugned order i.e. Annexure-4, the Court finds that the petitioner was guilty of several adjournments before seeking such recall but having regard to the fact regarding relinquishment in respect of two plots claimed by the petitioner and it could not be confronted to the witnesses examined and discharged, in view of the settled legal position discussed herein before with reference to the decision in Shubhkaran Singh (supra), the Court is of the view that recall should have been allowed by learned court below imposing cost on the petitioner. In other words, in order to being the evidence on record vis-(cid:224)-vis the relinquishment in favour of the petitioner in the year 1999 and to confront the same to P.W.1 and D.W.1, recall of such witnesses ought to have been allowed in the interest of justice especially considering the nature of relief sought for in the suit seeking partition, otherwise, it could result in multiplicity of the litigations affecting the interest of both the sides. 8. Accordingly, it is ordered. 9. In the result, the CMP stands allowed. As a necessary corollary, the impugned order dated 26th March, 2025 as at Annexure-4 in C.S. No.108 of 2021 is hereby set aside allowing the petitioner to further cross-examine P.W. 1 and D.W.1 on the date fixed. It is further directed that such recall of witnesses shall be subject to deposit of cost of Rs.2000/- payable to the plaintiff and proforma opposite parties proportionately. 10. Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 09-May-2025 17:57:54 Rojina Urgent copy of this order be issued as per rules. (R.K.Pattanaik) Judge Page 5 of 5