The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 1149 OF 2022 Bishnu Suna and others …. Petitioners Mr. S. Sourav, Advocate Girija Tandi and others …. Opp. Parties -versus-
Legal Reasoning
Mr. Srinibash Satapathy, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No. 3. 1. 2.
Decision
ORDER 05.07.2023 This matter is taken up through hybrid mode. Order dated 17th October, 2022 (Annexure-1) passed by learned Civil Judge (Senior Division), Patnagarh in C.S No. 95 of 2015 is under challenge in this CMP, whereby an application filed by the Plaintiffs-Opposite Parties under Order XVIII Rule 17 C.P.C. to recall P.W.1 for the purpose of exhibiting certain documents has been allowed. 3. Mr. Sourav, learned counsel for the Petitioners submits that C.S. No.95 of 2015 has been filed by Opposite Parties for declaration of right, title and interest and for permanent injunction. After the evidence of both the parties was closed, an application under Order XVIII Rule 17 C.P.C. was filed on 12th September, 2022 (Annexure-7) to recall P.W.1, namely, Chhandamani Tandi (Plaintiff-Opposite Party No.4) to exhibit certain documents as per the list appended to the said petition. There is no pleading with regard to the said documents in the plaint. The petition under Order XVIII Rule 17 C.P.C. (Annexure-7) also does not disclose the relevancy of those documents. The petition was filed only to linger the proceeding Page 1 of 4 // 2 // and to harass the Defendants-Petitioners. Learned trial Court in a casual manner relying upon the decision in the case of Gayatri –v- M. Girish, reported in 2016 (14) SCC 142, allowed the said application. It is his submission that discretionary power under Order XVIII Rule 17 C.P.C. should be exercised sparingly and in cases where the Court feels that there is ambiguity in the evidence of a witness which requires clarification. No case to that effect has been made out by the Plaintiffs-Opposite Parties in the instant case. Learned trial Court has also not taken pain to discuss the ingredients of Order XVIII Rule 17 C.P.C. Hence, he prays for setting aside the impugned order. 4. Mr. Satapathy, learned counsel for Opposite Party Nos.1 to 5 submits that documents sought to be exhibited by recalling P.W.1 are relevant for just adjudication of the suit as it will throw light on the issue as to whether Susila Tandi is the daughter of Kulamani Tandi. Hence, learned trial Court has committed no error in allowing such application. By allowing such application, the Defendants-Petitioners will not be prejudiced. Although no ground has been taken in the petition under Annexure-7 for recall of P.W.1, but the Court on perusal of the documents sought to be exhibited can ascertain the same. Hence, there is no illegality in the impugned order. Accordingly, he prays for dismissal of CMP. 5. Considering the submissions made by learned counsel for the parties and on perusal of the record, it appears that the petition under Order XVIII Rule 17 C.P.C. (Annexure-7) does not disclose the ground to seek for relief to recall P.W.1 and to exhibit documents appended to the said petition. It is only stated that documents sought to be introduced were not with the Page 2 of 4 // 3 // Plaintiff No.4 (P.W.1). It is also stated that due to outbreak of COVID-19 and cease work called by the Advocates of Western Odisha, the Plaintiff No.4 stayed at Raipur for which documents were misplaced and could not be provided to his Advocate for being exhibited in the suit. On perusal of the plaint as at Annexure-2, this Court does not find reference of the documents sought to be exhibited by P.W.1 on recall. Further, the petition was filed after closure of the evidence of the parties as would be clear from the order sheet annexed to the CMP as Annexure-5. Law is well settled that discretion conferred on the Court under Order XVIII Rule 17 C.P.C. may be exercised sparingly and the cases where there is ambiguity in the evidence and it needs clarification. No case to that effect is made out by the Plaintiffs- Opposite Party Nos.1 to 5 in the petition. While discussing the matter, learned trial Court has also not recorded any finding to that effect. 6. Mr. Satapathy, learned counsel for the Opposite Party Nos. 1 to 5 relying upon the decisions in the case of Gayatri (supra) and the case of K.K. Velusamy –v- N. Palanisamy, reported in (2011) 11 SCC 275, submits that when the petition is bona fide and it is required for just adjudication of the suit, the Court in its discretion may consider to recall the witness. In the case of K.K. Velusamy (supra), the Hon’ble Supreme Court held as under: “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 Page 3 of 4 // 4 // 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] .)” 7. Provision under Order XVIII Rule 17 C.P.C. should not be exercised to patch of the lacunae in the case of a party. In the instant case, recall of P.W.1 has been sought for to introduce certain documents, which were not filed earlier. Certainly, it will amount to patch of the lacunae in the case of the Plaintiffs, more particularly when such a petition was filed after closure of the evidence of the parties. There is nothing on record to show that the said documents are necessary to clarify any ambiguity or doubt in the mind of the Court in the evidence of P.W.1. 8. In view of the above, this Court is of the considered opinion that learned trial Court has acted illegally in allowing such application at the belated stage, i.e. at the stage of argument. 9. Accordingly, the impugned order under Annexure-1 is set aside. 10. 11. The CMP is allowed to the aforesaid extent. Since the suit is of the year 2015, learned trial Court should make endeavour for early disposal of the suit in accordance with law. Urgent certified copy of this order be granted on proper Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Designation: Ex-Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Jul-2023 20:05:39 bks application. (K.R. Mohapatra) Judge Page 4 of 4