The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 529 OF 2023 WESCO, Sambalpur (now TPWODL) …. Petitioner Mr. Prasanta Kumar Tripathy, Advocate Jasoda Sahu Opp. Party Mr. Rabindra Nath Debata, Advocate …. -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 17.09.2024 CMP NO. 529 OF 2023 & I.A. No. 124 of 2024 4. 1. This matter is taken up through hybrid mode. 2. I.A. No.124 of 2024 has been filed for vacation of the interim order dated 11th July, 2023 passed in I.A. No.499 of 2023. 3. In course of hearing of the I.A., this Court feels that merit of the CMP has to be gone into. Hence, on consent of learned counsel for the parties, the CMP is taken up for final disposal. 4. Order dated 10th February, 2023 (Annexure-4) passed in C.S. No.84 of 2020 is under challenge in this CMP, whereby learned Additional Senior Civil, Sambalpur rejected an application filed by the Defendant-Petitioner under Order XVIII Rule 17 C.P.C. to recall P.W.2 for further cross-examination. 5. Mr. Tripathy, learned counsel for the Petitioner submits that the suit has been filed for compensation for death of the mother of the Plaintiff due to electrocution. The suit was posted to 15th February, 2023 for adducing evidence from the side of the Defendant. On that date, it was detected that P.W.2, namely, Page 1 of 6 Arupananda Sahu, was cross-examined and discharged by the Defendant on 25th January, 2023, but some material questions could not be put to P.W.2 due to improper and incomplete instruction on behalf of Defendant. Accordingly, the Defendant- Petitioner filed an application on 1st February, 2023 to cross- examine P.W.2 in the following aspects: “a) The nature of business, dealing, stock and income relating to the claimed business/shop of late Sahadev Sahu. b) The usual usage of river bed of Bourijore of village Pitamahul by the villagers. c) Availability of other villagers if any by the alleged time of move of late Sahadeb Sahu and his sons in the village land or river bed. d) The sequence of events at the time of alleged accident and personal knowledge of the witness over the manner and nature of shock allegedly received by the deceased persons.” 6. Learned trial Court without recording any reason passed the impugned order rejecting the petition under Order XVIII Rule 17 C.P.C. Hence, this CMP has been filed. 7. Mr. Tripathy, learned counsel for the Petitioner further submits that the questions sought to be put to P.W.2 in the cross- examination are material and essential for just adjudication of the suit. Since it is a suit for compensation due to electrocution, the Defendant-Petitioner should have been given an opportunity to further cross-examine P.W.2 on the proposed questionnaires. 8. Mr. Debata, learned counsel for Opposite Party vehemently objects to the same. It is his submission that the evidence in affidavit of P.W. 2 was served on the Defendant on 16th January, 2023. Thereafter, P.W.2 was examined. He was also thoroughly cross-examined by the Defendant on 25th Page 2 of 6 January, 2023 and was discharged. Although the petition under Order XVIII Rule 17 C.P.C. was filed just after seven days, but no ground has been made out to recall P.W.2. The questionnaires, on which P.W.2 was sought to be cross- examined, if allowed, will amount to patch of the lacunae in the case of the Defendant, which is not permissible in law. It is his submission that the provision under Order XVIII Rule 17 C.P.C. should be exercised sparingly in exceptional cases, where it appears to the Court that the evidence adduced by a witness is ambiguous or it requires any clarification. But, no prayer for recall of the witness should be allowed to patch of the lacunae in case of a party. He, therefore, submits that although the impugned order is unreasoned one, but no fruitful purpose will be served by setting aside the said order. In the meantime, the evidence of Defendant has been closed and the suit is posted for argument. Both the parties have already filed their written notes of argument. Thus, he prays for dismissal of the CMP. 9. Mr. Tripathy, learned counsel for the Petitioner, however, submits that he has no instruction as to whether the evidence from the side of Defendant is closed or not. 10. Taking into consideration the submissions made by learned counsel for the parties, this Court finds that P.W.2 was thoroughly cross-examined by the Defendant on 25th January, 2023. From the petition under Order XVIII Rule 17 C.P.C. under Annexure-3, it reveals that due to incomplete and improper instruction, cross-examination of P.W. 2 could not be made by the Defendant on some material aspects as more-fully stated therein. Page 3 of 6 11. The provision under Order XVIII Rule 17 C.P.C. is not meant to patch of the lacunae in case of a party. In the case of Ram Rati –v- Mange Ram (Dead) through Legal Representative and Others, (2016) 11 SCC 296, it is held as under: “10. Order 18 CPC deals with hearing of the suit and examination of witnesses. By an amendment introduced thereunder with effect from 1-2-1977, Rule introduced permitting production of 17-A was evidence not previously known or which could not be produced despite due diligence. It appears, the amendment only caused unnecessary protraction of the litigation, and hence, the said provision was omitted by the Code of Civil Procedure (Amendment) Act, 1999 with effect from 1-7-2002. However, Rule 17 was retained which reads as follows: “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 time being in force) put such questions to him as the court thinks fit.” 11. The respondent filed the application under Rule 17 read with Section 151 CPC invoking the inherent powers of the court to make orders for the ends of justice or to prevent abuse of the process of the court. The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either suo motu or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The power under Rule 17 cannot be stretched any further. The said power cannot be Page 4 of 6 invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. “No prejudice is caused to either party” is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground.” 12. In view of the above, this Court is of the considered opinion that the basic purpose of Rule 17 C.P.C. is to enable the Court to clarify any position or doubt and the Court may, either suo motu or on the request of any party, recall of any witness at any stage of the suit. No doubt, once the Court recalls the witness for the purpose of any such clarification, the Court may permit the parties to assist the Court by examining the witness for the purpose of clarification required or permission by the Court. However, power under Rule 17 C.P.C. cannot be stretched any further, that too, in order to patch of any lacunae in the case of a party by recalling a witness. In the instant case, it appears that the aspects on which the Defendant sought to cross-examine on recall of P.W.2 were available to be put at the time of his cross- examination. Thus, the same cannot be allowed to be put in exercise of discretion under Order XVIII Rule 17 C.P.C. 13. No doubt, the impugned order under Annexure-4 is a cryptic one, but in view of the discussion made above, no fruitful purpose will be served by remitting the matter to learned trial Court for fresh adjudication of the said petition. As such, this Court is not inclined to interfere with the impugned order under Annexure-4. Hence, the CMP is dismissed. Page 5 of 6 14. The interim order dated 11th July, 2023 passed in I.A. No.499 of 2023 stands vacated. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Sep-2024 18:52:32 Page 6 of 6