The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Jul-2024 14:35:49 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.515 OF 2024 Chaitan @ Chaitanya Jena …. Mr. Tusar Kumar Mishra, Advocate -versus- Petitioner Sarat Chandra Mohanty and others …. Opp. Parties CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 02.07.2024 Order No. 01. 1. This matter is taken up through hybrid mode. 2. Order dated 23rd April, 2024 (Annexure-1) passed by learned Civil Judge, Junior Division, 2nd Court Cuttack in Civil Suit No.50 of 2003 is under challenge in this CMP, whereby an application filed by the Defendant Nos.3 (a) to (d), 4 and 5 to recall P.W.1 to clarify the ambiguity in his evidence, has been dismissed. 3. Mr. Mishra, learned counsel for the Petitioner submits that the suit has been filed by the Opposite Party No.1 for permanent injunction-simplicitor. The Petitioner is Defendant No.4 in the suit. The Defendant Nos.3 to 6 filed a joint written statement. In the written statement at para 3, it is categorically stated that the Plaintiff had filed TS No.276 of 1985 for declaration of right, title and interest and for permanent injunction against one Dhobani Dei and others. The suit land in both the suits are one and the same. In the said suit, the Plaintiff had filed Misc. Case No.166 of 1985 under Order XXXIX Rules 1 and 2 CPC and the same was dismissed on contest on a finding that the Plaintiff was not in the possession over the suit property. The suit was subsequently Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Jul-2024 14:35:49 abandoned by the Plaintiff and the present suit has been filed for permanent injunction. The aforesaid stand of the Petitioner could not be put to P.W.1 inadvertently during his cross examination. Some other pleadings made in the written statement could not also be suggested to P.W.1 during cross examination. After closure of the evidence of P.W.1, learned counsel for Defendant Nos.3 to 6 died and they engaged a new counsel. After closure of the evidence of the Plaintiff, when the Defendants were preparing to adduce evidence, learned Advocate appearing for them could find out that some relevant question could not be put to P.W.1 inadvertently. Thus, an application was filed under Order XVIII Rule 17 CPC to recall P.W.1 for further cross examination stating the questionnaires to be put. Learned trial Court, although discussed the rival claims of the parties on the prayer for recalling the P.W.1, but, without assigning any reason, dismissed the application vide order under Annexure-1. The said order is cryptic and non-speaking one. Only by referring to the case laws settled by Hon’ble Supreme Court, learned trial Court rejected the petition. 4. It is further submitted by learned counsel for the Petitioner that had it been a fact that the questionnaires stated in the petition were put to P.W.1 earlier, then question of recalling the P.W.1 would not have arisen. But, in the instant case, the case of the Petitioner is that some relevant questions could not be put to P.W.1, which are relevant for consideration for just adjudication of the suit. He also relied upon the case of M/s. Bagai Construction -v- M/s. Gupta Building Material Store, in Civil Appeal No.1787 of 2013, disposed of on 22nd February, 2013, Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Jul-2024 14:35:49 wherein relying upon the case of Vadiraj Naggappa Vernekar (dead) through LRs. –v- Sharadchandra Prabhakar Gogate, reported in (2009) 4 SCC 410 and K.K. Velusamy -v- Palanisamy, reported in (2011) 11 SCC 275, Hon’ble Supreme Court held as under: fact, applications “12) After change of various provisions by way of amendment in the CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. for adjournments, reopening and In recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial Court in order to overcome the lacunae in the plaint, pleadings and evidence. case of the was not plaintiff that It is not the was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC.” 5. He, therefore, submits that considering the guidelines in the aforesaid two case laws, Hon’ble Supreme Court has set out that in a fit case, a petition under Order XVIII Rule 17 CPC should be allowed. 6. In the instant case, recall of PW1 is necessary for just adjudication of the suit and to avoid multiplicity of litigation. In the case of Gayatri -v- M. Girish, reported in (2016) 14 SCC 142, Hon’ble Supreme Court held that in fit cases, recall of witness Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Jul-2024 14:35:49 may be allowed on payment of cost, if necessary. Although, learned trial Court referred to Gayatri (supra) in the impugned order, but miserably failed to appreciate the ratio of the case law and without assigning any reason, dismissed the application. Hence, this CMP has been filed. 7. Taking note of the submission made by learned counsel for the Petitioner and on perusal of record, it appears that Defendant Nos.3 to 6 including the Petitioner were given ample opportunity to cross examine P.W.1. It is not the case of the Petitioner that no opportunity to cross examine P.W.1 was given. It is only stated in the petition that inadvertently, some relevant questions could not be put to P.W.1. Law is well settled in Ram Ratti -v- Mange Ram & Ors., in (2016) 11 SCC 296 that the power under Order XVIII Rule 17 CPC cannot be invoked to fill up omission in the evidence already led by witnesses. It cannot also be used to fill up the lacuna in evidence. In the instant case, allowing the application under Order XVIII Rule 17 CPC would amount to filling up the omission in the evidence of P.W.1. Thus, learned trial Court although did not assign any reason in the impugned order, but remitting the matter for fresh consideration would amount further delay in the matter and will be an empty formality. Since the Petitioner has not made out any case to recall P.W.1, this Court is not inclined to interfere with the impugned order. 8. Accordingly, this CMP, being devoid of any merit, stands dismissed. Rojalin (K.R. Mohapatra) Judge Page 4 of 4