The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK AFR CMP No.1086 of 2024 Prabhakar Sahoo & others …. Petitioners Mr. D. Dhal, Advocate -Versus- Sesadev Sahoo & others …. Opposite Parties Mr. R.K. Swain, Advocate CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:17.06.2025 1. Instant petition is filed by the petitioners assailing the impugned order dated 20th July, 2024 passed in connection with the suit in C.S. No.62 of 2005(I) by learned Civil Judge, Junior Division 2nd Court, Cuttack as at Annexure-6, whereby, an application under Order 18 Rule 17 CPC at the behest of opposite party Nos.1 to 4 seeking recall of opposite party No.11 examined as a witness from their side was allowed on the grounds inter alia that such a decision is not legally tenable, hence, liable to be interfered with in the interest of justice. Page 1 of 30 2. Briefly stated, the suit is instituted by the petitioners against opposite party No.1 to 4 and original defendant No.5 for a declaration of them having the right, title and interest including possession over and in respect of the suit schedule land and to permanently injunct the latter, who in case found to be in possession, to recover such possession with the process of Court and such other reliefs as entitled under law. The contesting defendants challenged the suit of the petitioners. In fact, defendant Nos.1, 2 and 4 filed a common WS and a separate one by defendant No.3. In so far as original defendant No.5 is concerned, no defence was filed by him. On the death of defendant No.5, he was substituted by opposite party No.11 and others. The evidence from both the sides was concluded and thereafter, opposite party Nos.1 to 4 moved the application under Order 18 Rule 17 CPC requesting therein to recall opposite party No.11 examined as DW 5 for a specific purpose to confront certain facts with reference to the decree passed in T.S. No.288 of 2000 in juxtaposition to another decree dated 5th December, 1990 in T.S. No.304 of 1989 with a plea that the same is Page 2 of 30 absolutely necessary for a just decision in the suit. Even though, an objection was received from the petitioners to entertain such recall, as it was at the fag end of the suit pending at the stage of argument, learned court below allowed the application exercising powers under Order 18 Rule 17 CPC with recall of DW 5 subject to cost payable to the other side by the impugned order dated 20th July, 2024 i.e. Annexure-6. The said decision of allowing recall of opposite party No.11 for the purpose of further examination in the hands of opposite party Nos.1 to 4 and legality thereof is under question by the petitioners.
Legal Reasoning
3. Heard Mr. Dhal, learned counsel for the petitioners and Mr. Swain, learned counsel for opposite party Nos.1 to 4. 4. According to Mr. Dhal, learned counsel for the petitioners, defendant Nos.1, 2, 3 and 4 contested the suit and not original defendant No.5 and he was also set ex-parte and later died on 17th September, 2007 during the pendency of the suit, whereafter, his legal heirs defendant Nos.5 (a) to 5 (g) were substituted and in spite of summons issued to them, Page 3 of 30 none chose to contest either and all were also set ex-parte and during and in course of hearing of the suit, plaintiff No.4 was examined as PW 1, cross- examined and discharged and the evidence from the side of the plaintiffs was closed and thereafter, the defendants led evidence and it was closed on 22nd April, 2024 and then the argument was commenced from both the sides on different dates, but in course of such argument, the conducting counsel for defendant Nos.1 to 4 informed the learned court below that the consent was being taken from him, in response to which, notice was issued to defendant Nos.1 to 4, who ultimately appeared, engaged another counsel and thereafter, on 5th July, 2024, such an application under Order 18 Rule 17 CPC as at Annexure-4 to recall DW 5 was filed solely to confront him about the compromise decrees in both the suits, such as, T.S. No.304 of 1989 and T.S. No.288 of 2000, to which, an objection was filed on 16th July, 2024, a copy of which is at Annexure-5 and upon hearing of the parties, learned court below finally passed the impugned order i.e. Annexure-6 allowing recall of DW 5 but it is not unwarranted. Page 4 of 30 5. The petitioners challenged the correctness of the above decision on the following grounds, such as, (i) the ground set forth in the application and the document which is sought to be confronted to DW 5 have neither been pleaded in the WS nor relied upon by defendant Nos.1 to 4; (ii) such a question is beyond the subject matter of the suit; (iii) the contesting defendants have filed the application in order to fill up the lacuna through DW 5; (iv) no counter claim is filed questioning the decree in T.S. No.288 of 2000 marked as Ext.1 in the suit; (v) no justifiable grounds exist for non-production of such a document earlier even at the time of examination of DW 5; (vi) no questionnaire is furnished along with the application under Order 18 Rule 17 CPC; and (vii) such a move is at the end of the trial, hence, therefore, it is not maintainable and thus, could not have been entertained by learned court below and therefore, the impugned order under Annexure-6 deserves to be set aside. Since, cost was imposed and it was received under a protest, Mr. Dhal, learned counsel would further submit that the petitioners do have the right to question the decision of learned court below. In support of the Page 5 of 30 grounds advanced, Mr. Dhal, learned counsel relies on the following decisions, such as, Savithramma Vrs. Nagarathna and others AIR 2020 Karnataka 134; Rashmi Rekha Purohit @ Panda Vrs. Rajeswari Panda and others 2023 (I) CLR 1036; and Vadiraj Naggappa Vernekar Vrs. Sharadchandra Prabhakar Gogate AIR 2009 SC 1604 concerning the powers of the Court under Order 18 Rule 17 CPC and Ananda Behera and others Vrs. Nilkamal Behera and others AIR 1975 Orissa 173 along with Sk. Zahural Islam Vrs. Tanweer Jahan Begum and others AIR 2000 Orissa 140 on the point of cost having been received with a protest and its aftereffects. The contention is that learned court below could not have exercised jurisdiction allowing recall of DW 5 as it was unnecessary and even not permissible within the framework of law especially at the end of the suit, furthermore when, no legal basis or foundation was laid while seeking such recall for further examination with reference to the earlier decrees in the other two suits and in so far as, the right to challenge the impugned decision i.e. Annexure-6 is concerned, it was not extinguished Page 6 of 30 notwithstanding receipt of the cost, which in any case, was under protest. 6. On the contrary, Mr. Swain, learned counsel for opposite party Nos.1 to 4 submits that recall of DW 5 is needed to effectively adjudicate the suit and since, he was to be confronted about the earlier decrees especially with regard to the signature of original defendant No.5 which did not match with the one in the other and therefore, considering the same and the significance and since the rights of the parties vis-(cid:224)-vis the suit schedule land depends on it, learned court below did not commit any serious wrong or error in directing further examination of DW 5 even though none of the substituted LRs of original defendant No.5 contested the suit. Mr. Swain, learned counsel further submits that the petitioners are estopped from challenging the order under Annexure-6 for the reason that cost of Rs.500/- awarded by learned court below was received by them and refers to a memo dated 1st August, 2024 as at Annexure-1 to the counter affidavit of opposite party Nos.1 to 4. The contention is that when the petitioners received the cost, they are not permitted to challenge the Page 7 of 30 decision under Annexure-6 as one cannot approbate and reprobate at the same time since it is prohibited under law. 7. In reply and response to the above, Mr. Dhal, learned counsel for the petitioners reiterated the grounds pleaded on record and submits that receipt of cost of Rs.500/- by the petitioners under protest does not take away the invaluable right to question the correctness of the impugned order i.e. Annexure-6. It is further submitted that the petitioners possess the rights to challenge recall of DW 5 for the fact that the cost was paid and received with a protest and refers to a certified copy of the memo dated 1st August, 2024 filed before the learned court below in contrast to the memo i.e. Annexure-1 to the counter affidavit of opposite party Nos.1 to 4 with the contention that the same is a public document and hence, admissible as per Section 74 and 76 of the Indian Evidence Act and a presumption is attached to the same in view of Section 77 and 79 thereof and hence, the petitioners though having received the cost, it was without any prejudice to their rights to challenge Annexure-6, hence, are not estopped under law. Page 8 of 30 8. As earlier stated, original defendant No.5 did not contest the suit and during pendency of the suit, he died and DW 5, namely, opposite party No.11 is one of the substituted LRs of him and the latter and the other LRs were set ex-parte as well. In fact, the original defendant No.5 instituted the suit in T.S. No.304 of 1989 and the same ended in a compromise. The said suit was filed against one Narendra Moharana as the sole defendant and in view of the compromise between them, a decree was drawn up in terms of Annexure-3 to the counter affidavit of opposite party Nos.1 to 4. Similarly, the other suit in T.S. No.288 of 2000 instituted by plaintiff No.1, original defendant No.2, defendant No.3 and others against original defendant No.5 and others culminated in a compromise decree as per Annexure-2 of the above counter affidavit. Both the suits stood disposed of upon compromise between the respective parties. So far as, the present suit is concerned, it is instituted by the plaintiffs against opposite party Nos.1 to 4, who were not parties to the earlier suits but claimed to have acquired interest in respect of the suit schedule property, in the meanwhile. Since Page 9 of 30 original defendant No.5 was a party to both the suits and he is succeeded by opposite party No.11 and others and the latter was examined as DW 5, in order to confront the compromise decree in T.S. No.288 of 2000 and about the truthfulness vis-(cid:224)-vis involvement of original deceased defendant, whose signature is alleged to be not matching with the one in T.S. No.304 of 1989, such a request was made in terms of Order 18 Rule 17 CPC and ultimately, it has led to the passing the impugned order i.e. Annexure-6. The conclusion of learned court below is that even when the suit is on the verge of disposal, recall or re-summon of a witness to prove a fact or document is permissible and any such recall of DW 5 is not to put the petitioners to any expense as the latter would have the opportunity to cross-examine him with reference to any such document marked as exhibit and hence, allowed the same, however, imposed cost payable to the plaintiffs. 9. In fact, Order 18 Rule 17 CPC deals with recall and examination of a witness which is a discretionary power for the court to exercise, if it deems fit in a given set of facts. Furthermore, Page 10 of 30 Section 165 of the Indian Evidence Act allows a court to exercise such a power to put any question to a witness and Order 18 Rule 17 CPC reserves such a right to recall a witness for the said purpose. The right to recall is not restricted to the Court on its own motion but may be exercised at the instance of a party. But ordinarily, no such examination is allowed without the leave of the Court. Law is well settled that if cogent reasons exist, recall of a witness can be allowed. When a party omits to examine a witness on a question of law due to inadvertence, such witness may be recalled. The production of evidence not previously known or which could not be produced despite due diligence and the provision in respect thereof as per Rule 17- A of Order 18 CPC was omitted by CPC (Amendment) Act, 1999 w.e.f. 1st July, 2002 which was to the effect that the same was permissible provided despite exercise of diligence, a party was not in a position to submit the evidence, hence, to move the Court even at a later stage. Since such a provision is no more in existence having been omitted in view of Section 27(iii) of CPC (Amendment) Act, 1999, a Court on being moved Page 11 of 30 seeking recall of a witness or production of any such evidence shall have to be entertained and examined in terms of Order 18 Rule 17 CPC leaving the discretionary power to be exercised by it depending on the facts of each particular case. If it is held necessary to recall a witness either for further examination or cross-examination, as the case may be, the intent and purport of Order 18 Rule 17 CPC is to be understood. It is not that on the drop of a hat, any such application seeking recall or re-summon of witness is to be allowed by a Court, which has the discretionary power to consider the same. A discretion lies with the Court must have to be exercised judiciously and not at its whim or caprice. 10. In Vadiraj Naggappa Vernekar (supra), the Apex Court held and observed that the dominant purpose of exercising power under Order 18 Rule 17 CPC is to enable a Court, while trying a suit, to clarify any doubts, which it may have with regard to the evidence led by the parties but not to fill up any lacunae left behind. In the facts and circumstances of the said case, the Apex Court declined to consider recall and re-examination of Page 12 of 30 the witness with the conclusion that such an exercise is not within the scheme of Order 18 Rule 17 CPC with a conclusion that power to recall any witness in terms of said provision may be exercised sparingly and in appropriate cases and not as a general rule merely on the ground that such a course of action is not likely to cause any prejudice to the parties. In view of the settled legal position, at the time of recall of a witness, a Court trying the suit should be alive to the fact that recall of a witness or allowing a party to lead further evidence with such recall or re-summon should not be routinely entertained or in a casual manner, unless and until, a case is made out with a conclusion that the same is essentially necessary for a just decision in the suit having regard to the evidence already led by the parties thereto. Whether the learned court below had a right approach in allowing further examination of DW 5 upon such recall is to be examined keeping in view the objective of law with reference to the discretionary jurisdiction exercisable under Section 165 of the Indian Evidence Act read with Order 18 Rule 17 CPC. Page 13 of 30 11. Indisputably, the evidence is closed from both the sides and thereafter, defendant Nos.1 to 4 moved the application seeking recall of DW 5. In the considered view of the Court, such an exercise is still open notwithstanding closure of evidence and the suit being pending at the stage of argument provided it falls within the parameters of Order 18 Rule 17 CPC. In Savithramma (supra), the Karnataka High Court held that since the plaintiff moved an application under Order 18 Rule 17 CPC when the suit was set down for arguments, rejection of the same in absence of any convincing and cogent reasons is perfectly justified. It has been held therein that justifiable ground was not made out while seeking further examination of the witness, when it was at the fag end of the trial. Therefore, it has to be concluded that if a case is made out for any such recall under Order 18 Rule 17 CPC, the Court has the power to entertain the same even when the suit is on the verge of disposal but such examination shall have to be subject to the law of evidence. It is to be reiterated that there is no absolute bar or restraint under law from entertaining any such recall of a witness. A Page 14 of 30 discretionary power lies with a court to be exercised either suo motu or at the instance of a party to the suit but with a rider that the same is just and really necessary. In the case of Rashmi Rekha Purohit @ Panda (supra), this Court concluded that there was no pleading in respect of the documents sought to be produced nor was any ground made out for acceptance of the same as evidence at a belated stage of the suit, hence, therefore, it was rightly disallowed dismissing the application filed under Order 7 Rule 14 CPC. The above decision has been referred to by Mr. Dhal, learned counsel for the petitioners to contend that in absence of any such pleading with regard to the earlier suits even challenging any of the decrees therein, recall of DW 5 could not have been allowed by learned court below when the evidence from both the sides had already been concluded and arguments were being presented with the suit about
Decision
to be disposed of. Even though, it was with regard to production of documents with reference to Order 7 Rule 14 CPC, essentially, the argument advanced by Mr. Dhal, learned counsel referring the above case law is on the premise that recall of DW 5 Page 15 of 30 without any such basis or foundation and even in absence of any counter-claim in the WS of opposite party Nos.1 to 4, while questioning the decree in T.S. No.288 of 2000 was not right and justified. 12. At this juncture, the Court is to examine the reason behind such recall of DW 5 and what prevailed upon learned court below to allow the same. Was it proper on the basis of the pleading on record and evidence led by the parties to allow recall of DW 5 for further cross-examination? The need and purpose of recall of a witness in terms of Order 18 Rule 17 CPC shall have to be in lines of the principles discussed by the Apex Court time and again and reiterated in Vadiraj Naggappa Vernekar (supra). At the cost of repetition, it is to be reminded that exercise of power under Order 18 Rule 17 CPC is to be exercised sparingly and only in appropriate cases and not in a routine manner. On a reading of the impugned order at Annexure-6, the Court finds that learned court below referring to the decisions in U.K. Ghosh Vrs. M/s. Voltas Ltd. and another AIR 1994 Orissa 131; Salem Advocate Bar Association, T.N. Vrs. Union of India (2005) 6 SCC 344; and Jodhpur Gums & Page 16 of 30 Chemicals Pvt. Ltd. Vrs. Punjab National Bank and others AIR 1999 Raj 38 reached at a conclusion that full opportunity should be provided to the parties to lead evidence and since recall of a witness may be allowed even for adducing documentary evidence, any such recall of DW 5 since unlikely to subject the plaintiffs to any expense or costs and the inconvenience would be more for the defendants instead, allowed the application dated 5th July, 2024 with cost payable to the plaintiffs. As earlier discussed, Order 18 Rule 17-A CPC is no more in the statute book and was omitted w.e.f. 1st July, 2002 and notwithstanding such a provision being there, according to the decision in Salem Advocate Bar Association, T.N., it was not to disentitle production of evidence at a later stage. On a sincere reading of the citations referred to by learned court below, the conclusion would be that recall of a witness, whether to be permissible or otherwise, is to be duly examined by a court and it would entirely depend on the facts and circumstances of each case. In fact, in U. K. Ghosh case, this Court observed that there can be no straightjacket formula in the matter of recall of a Page 17 of 30 witness, rather, the judicial discretion to be exercised with the ultimate aim that the parties get opportunity to present their cases and the Court is able to adjudicate it properly. In Jodhpur Gums & Chemicals Pvt. Ltd referred to by learned court below, the witnesses were allowed to be re- summoned on an application by the plaintiff bank to prove certain documents left unexhibited due to a lapse of the conducting counsel engaged by them as revealed from the conclusion of learned court below, wherein, Rajasthan High Court was pleased to dismiss the revision and declined to interfere with the order of the lower court. Though, the decisions have been discussed with the relevant extracts reproduced by learned court below as further revealed from Annexure-6 but towards the end, it has been concluded that such a recall is not to put the plaintiffs to any greater inconvenience in comparison to defendant Nos.1 to 4, who are rather to bear the expenses upon such recall of DW 5 with the former having been an opportunity to cross- examine the witness. The Court does not find any discussion from Annexure-6 as to the specific need felt in recall of DW 5. It is not that on a request Page 18 of 30 received from defendant Nos.1 to 4, the recall of DW 5 was to be allowed. Even learned court below concluded that the plaintiffs would not have to bear the expenses but still directed such recall with a cost of Rs.500/- payable to them. The Court does not really find any reason being assigned by learned court below, while allowing recall of DW 5. Rather from the application under Order 18 Rule 17 CPC, the Court finds that said witness was sought to be recalled to confront the involvement of original defendant No.5 and the latter’s signatures found inconsistent in both the decrees of the earlier suits. The question is, whether, on such a ground, recall of DW 5 was to be allowed. In both the suits, as earlier stated, decrees resulted after the parties reached at compromise. The contesting defendants are not parties to the said suits either. The compromise decree is not under challenge in the present suit. A copy of such decree in T.S. No.288 of 2000 is already marked as an exhibit in the suit. Whether, there was any involvement of original defendant No.5 with any such plea advanced by defendant Nos.1 to 4, in the humble view of the Court, cannot be the basis to confront the same to Page 19 of 30 DW 5. The original defendant No.5 was a party to both the suits and upon compromise, the decrees have been passed therein. Admittedly, there is no counter-claim in the WS questioning the decree in T.S. No.288 of 2000. Interestingly, according to the petitioners, the rights vis-(cid:224)-vis the suit schedule property are in no way affected by the compromise decree in any of the suits earlier instituted and disposed of. It is not denied that defendant Nos.1 to 4 ever challenged the compromise decree in T.S. No.288 of 2000 on any such ground with reference to the other suit i.e. T.S. No.304 of 1989. Under the above circumstances, when there is absence of any pleading to counter the compromise decree in T.S. No.288 of 2000, rather, the claim of the petitioners is that their rights are not affected by the earlier decrees, in absence of any such specific need to confront the said decree to DW 5, who is one of the successors of original defendant No.5, the conclusion of the Court is that recall, as has been allowed by learned court below, was not justified at all and the same is not in conformity with Order 18 Rule 17 CPC. No basis or any foundation has been laid by defendant Nos.1 to 4 without any pleading Page 20 of 30 on record and that apart, when there has been no challenge to the compromise decree of the year 2000, any such recall of DW 5 to confront the same is rather unnecessary. Any such further examination of DW 5 by defendant Nos.1 to 4 is to expand the scope of the suit beyond the pleadings. Under what circumstances, the decree in T.S. No.288 of 2000 was arrived at with the participation of original defendant No.5, in the considered view of the Court, is beyond the domain of the suit and therefore, it is not at all necessary to confront any such fact to DW 5 vis-(cid:224)-vis verification of signature of his late father therein on comparison with the decree in T.S. No.304 of 1989. 13. To reiterate, recall of DW 5, in the peculiar facts and circumstances of the case, is unwarranted, especially when, there is no any challenge to the decree in T.S. No.288 of 2000 considering the fact that the same ended in a compromise, hence, there is absolutely no justification at all. The inter se dispute between the parties in the suit at hand is to be examined on its own merit on the anvil of the past events with the compromise decrees in place. As it is already discussed that defendant Nos.1 to 4 Page 21 of 30 have not challenged the decree in T.S. No.288 of 2000, what purpose would it serve with the recall of DW 5 and therefore, it has to be concluded that such decision by learned Court below as per Annexure-6 does not stand to any logic. 14. The challenge to the impugned order i.e. Annexure-6 is opposed by defendant Nos.1 to 4 on the ground that such a right stood extinguished for the plaintiffs having received the cost. Mr. Dhal, learned counsel for the petitioners contends that the cost was received with protest clearly revealed from the certified copy of the memo filed before the learned Court below. In such view of the matter, it is contended that the petitioners are not estopped from questioning the correctness of the impugned decision vide Annexure-6. On the other hand, Mr. Swain, learned counsel for opposite party Nos.1 to 4 claims that the petitioners cannot be permitted to blow hot and cold for having accepted the cost and simultaneously questioning the decision on recall. 15. In Ananda Behera (supra), an ex parte decree was set aside awarding cost in favour of the Page 22 of 30 plaintiff, who accepted the same but with a receipt filed carrying an endorsement ‘without prejudice to file revision’, hence, held therein that the party clearly did not relinquish its right to challenge the same, inasmuch as, it never approbated a part of the order by physical receipt of the cost. When at the time of receipt of the amount, it had therefore explicitly reserved a right to challenge the decision under Order 9 Rule 13 C.P.C. Without objection the cost was when received by the defendants, it was held in Sk. Zahural Islam (supra) that they are estopped from challenging the order allowing the amendment of plaint. Mr. Dhal, learned counsel for the petitioners, hence, submits that whenever, there is receipt of cost with a protest, right of the party accepting the same to challenge the order is not extinguished. On the contrary, Mr. Swain, learned counsel for opposite party Nos.1 to 4 refers to a decision of the Punjab and Haryana High Court in Amar Singh Vrs. Perhlad and others AIR 1989 P&H to contend that approbate and reprobate is not permitted under law and therefore, the petitioners, in spite of having received the cost under a protest, have relinquished any such right to Page 23 of 30 challenge the impugned order i.e. Annexure-6. In fact, a copy of the memo produced in Court from the side of opposite party Nos.1 to 4 did not reveal any such protest received from the petitioners while accepting the cost but a certified copy of another disclosed it otherwise. The Court is to rely upon and accept the certified copy of the memo received by learned Court below in support of the proof of receipt of cost by the petitioners but under a protest. In Amar Singh (supra), it has been held that when the application for amendment under Order 6 Rule 17 CPC was allowed with cost and it was accepted, allowing any such challenge to such an order would amount to nullifying the effect of acceptance of costs, as in such circumstances, a party cannot be allowed to approbate and reprobate. In the same decision, it is also held that there was no restriction not to accept the cost since two options are available, one to accept it and to treat the order as correct; or not to accept, instead to challenge the decision and a party having elected one of the options exercising the choice and having received the cost, lodging of protest at the time of such receipt is meaningless. In Sayed Zaharul Page 24 of 30 Haque Vrs. State of Orissa and others 2004 (Supp.) OLR 786, this Court held that the ex parte award was set aside subject to payment of costs and the cost having been received, the petitioner therein was estopped from challenging the order. In a decision of Madras High Court in the case of Fast Cool Services Vrs. P. Shanthakumari MANU/TN/0202/2000, it has been held that condonation of delay with costs having been accepted by one of the parties, such party cannot challenge the decision later on. In the above decision, it has been discussed that the rule is based on application of the doctrine that a person may not approbate and reprobate at one time. At the same time, the significance of expression ‘under protest’ was discussed therein and it was concluded that merely receiving cost with protest is not to change the position and principle of estoppel would therefore, apply in such cases with such a conclusion that receiving cost despite protest amounts to nothing unless explained away. On the principles of acquiescence, a decision of the Apex Court in Union of India and others Vrs. N. Murugesan and others (2022) 2 SCC 25 is cited Page 25 of 30 at the Bar. One more case law in Bijendra Nath Srivastava Vrs. Mayank Srivastava and others 1994 AIR SCW 3615 is referred to by Mr. Swain, learned counsel for opposite party Nos.1 to 4, wherein, there is a discussion of principle of estoppel. On a sincere reading of the above decision, the Court finds that the Apex Court while dealing with a challenge to an amendment subject to payment of costs held and observed that if the party has accepted the cost and where the decision is in the nature of a conditional order, the rule of estoppel would apply and in such a case, it is always open to a party not to accept the benefits of cost and thus to avoid the consequence of being deprived of right to challenge the same on merits, however, the principle would not apply to a case where the direction for payment of costs is not a conditional one on which the application is allowed rather costs to have been awarded independently in exercise of the discretionary power, because in such a case, the party, who has been awarded costs has no opportunity to waive the right to question the validity or correctness of the order. In the said case, even though the cost was received upon Page 26 of 30 amendment to an objection to the arbitration award, since it was not a conditional order and the same was challenged and was also carried in appeal, the Apex Court concluded that the principle of estoppel arising from acceptance of costs so as to preclude a party from challenging validity of the order cannot be invoked. Essentially, it has been held that when costs have been awarded not as a condition precedent allowing amendment but by way of exercise of discretionary power of a court and it has been accepted by a party, for acceptance of costs, such party would not be precluded from challenging the validity of the decision. 16. According to the Court, the conduct of a party is important and at the same, the tenor of the order. Laying too much of emphasis on the expression ‘under protest’ or ‘without prejudice to the right’ while accepting the costs is not likely to change the position. If it is a conditional order and the cost is accepted, rule of estoppel applies and not otherwise. If by exercise of discretionary power, any such cost is awarded, allowing of application would not make the decision in the nature of a conditional order. In other words, where there is no Page 27 of 30 conditional order, even though, the cost was received by the party, it has every right to challenge the decision and the same is not extinguished. Having discussed the settled position of law on the point involved, the Court is of the view that right to question the legality and judicial propriety of the impugned order at Annexure-6 would depend on its nature and whether the cost to have been awarded as a condition precedent while allowing recall of D.W.2 or it was merely in exercise of discretionary power to compensate the plaintiffs for the delay and inconvenience caused to them. 17. As discussed earlier, learned Court below without considering the need and necessity towards recall of DW 5 in absence of any specific plea and challenge to the earlier compromise decree in T.S. No. 288 of 2000 with reference to another decree dated 5th December, 1990 in T.S. No.304 of 1989, simply allowed defendant Nos.1 to 4 to re-summon the witness for further examination and it was with a conclusion that the plaintiffs would not have to bear the expenses or cost, rather, defendant Nos.1 to 4 and there would not be prejudice either as the plaintiffs would have the opportunity to cross- Page 28 of 30 examine him on the documents exhibited. It is settled law that a party cannot be allowed to take the benefits of the part of the order and register complaint at the same time since it is based on the doctrine that a person may not approbate and reprobate but where the order is not conditional, even though the cost is received under protest, it would not take away the rights of the party to challenge the order on merits. A conditional order cannot be challenged and hence, rule of estoppel would apply but not where discretionary power has been exercised while awarding the cost. In the case at hand, on a reading of Annexure-6, it would not be incorrect to claim that the same is not a conditional order, rather, learned Court below exercised wisdom and allowed the costs to be paid to the plaintiffs despite a conclusion that the expenses would be borne by defendant Nos.1 to 4 and not by them. On a conspectus of the decisions referred to hereinbefore, the Court reaches at an inescapable conclusion that the petitioners even though received the cost and it was admittedly under protest but for the reason that the impugned order i.e. Annexure-6 is not a conditional one Page 29 of 30 instead the cost was awarded in exercise of discretionary power, the petitioners, for that matter, cannot be precluded from challenging the same since the rule of estoppel does not apply and the right to question any such recall is not in any way infringed upon or extinguished. 18. Hence, it is ordered. 19. In the result, the petition stands allowed. As a logical sequitur, the impugned order dated 20th July, 2024 passed in connection with C.S. No.62 of 2005(I) as at Annexure-6 is set aside for the reasons discussed herein before with a direction for the learned Civil Judge, Junior 2nd Court, Cuttack to proceed to dispose of the suit at the earliest as per and in accordance with law. 20. In the circumstances, however, there is no order as to costs. Balaram/Rojina (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 18-Jun-2025 11:19:37 Page 30 of 30