Madhya Pradesh High Court
Om Prakash Kori vs Smt. Gomti Kori on 15 October, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KHOT
ON THE 15th OF OCTOBER, 2025
MISC. PETITION No. 5671 of 2025
OM PRAKASH KORI AND OTHERS
Versus
SMT. GOMTI KORI AND OTHERS
Appearance:
Shri Ashok Kumar Jain - Advocate for the petitioner.
Shri Dushyant Singh Kaurav - Advocate for the respondent/caveator.
ORDER
The present petition under Article 227 of the Constitution of India has
been filed by the petitioner being aggrieved by the order dated 11.09.2025
(Annexure-P/6) passed by 30th Civil Judge, Senior Division, District
Jabalpur in RCSA No.6982/2016, whereby an application submitted under
Section 151 of CPC by the petitioner/defendant to recall the witness of
plaintiff namely Gomtibai has been rejected.
2. It has been contended by learned counsel for the petitioner that after the
amendment in the year 2002 in Code of Civil Procedure, the power under
Order 18 Rule 17-A has been omitted to recall the witness on the application
submitted by the party. However, such power still vests with the Court by
invoking inherent power under Section 151 of CPC. It has been submitted
that the Hon'ble Apex Court in the case of K.K. Velusamy vs. N. Palanisamy
reported in (2011) 11 SCC 275, has held that such power can be exercised in
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the eventuality when the Court finds that such recalling is in the interest of
justice and for fair adjudication of the trial. It is further submitted that such
powers can be exercised by the Court by exercising inherent jurisdiction
vested with the Court by Section 151 of CPC because the application has
been filed on the ground that the counsel who has cross-examined the
plaintiff's witness has not asked any question in regard to forged Will or the
Will has been executed by committing forgery. He has invited attention of
this Court towards the cross-examination of the plaintiff to support his
contention that no question has been asked in regard to forgery of the Will. It
is submitted that the Hon'ble Apex Court in the case of K.K. Velusamy
(supra) has held that the power under Section 151 can be exercised to deal
with any particular procedural aspect which is not provided expressly or
impliedly in CPC, if ends of justice so warrant and to prevent abuse of
process of court, the Court in appropriate cases can exercise its discretion to
permit reopening of evidence and/or recalling of witnesses for further
examination/cross-examination after evidence led by parties is concluded and
arguments have commenced or even when arguments have concluded and
case has been reserved for judgment, as there is no provision in this regard in
CPC after deletion of Order 18 Rule 17-A. Therefore, recalling is necessary
and should have been allowed by the Court below. The Court below has not
allowed such application and has committed grave error of law much less
jurisdictional error and therefore, interference is called for by this Court
under Article 227 of the Constitution of India.
3. Per contra, learned counsel appearing for the respondent on caveat has
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submitted that the order is just and proper and is not required to be interfered
with because the lacuna cannot be filled up by filing an application and
recalling the witness. Once the questions have not been asked that cannot be
put to the same witness by again preparing it by another counsel.
4. Heard learned counsel for the parties and perused the record.
5. In the case of K.K. Velusamy (supra), it has been held by Hon'ble the
Apex Court in paragraphs - 10 & 11 as under :-
"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.
11. There is no specific provision in the Code enabling
the parties to reopen the evidence for the purpose of
further examination-in-chief or cross-examination.
Section 151 of the Code provides that nothing in the
Code shall be deemed to limit or otherwise affect the
inherent powers of the court to make such orders as
may be necessary for the ends of justice or to prevent
the abuse of the process of the court. In the absence of
any provision providing for reopening of evidence or
recall of any witness for further examination or cross-
examination, for purposes other than securing
clarification required by the court, the inherent power
under Section 151 of the Code, subject to its
limitations, can be invoked in appropriate cases to
reopen the evidence and/or recall witnesses for further
examination. This inherent power of the court is not
affected by the express power conferred upon the court
under Order 18 Rule 17 of the Code to recall any
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witness to enable the court to put such question to elicit
any clarifications."
6. It is evident from the cross-examination submitted along with the
petition as Annexure-P/3 that the plaintiff has been asked question in regard
to Will. However, such suggestion that Will is forged has not been asked.
But the said question was very much available to the counsel to ask to the
plaintiff but the same has been left by the counsel to ask from the plaintiff.
The same cannot be said to be that despite of due diligence it was left to be
asked. The second test which has to be applied in recalling the witness as per
the law laid down by the Hon'ble Apex Court in K.K. Velusamy (supra) that
the party was not having knowledge in regard to the question which was
required to be asked but in the present case, as the questions were asked in
regard to the Will in cross-examination, it cannot be said that the counsel for
the defendant was not having knowledge in regard to the Will or for the
matter as stated by the counsel for the petitioner as forged Will. But if such
question has not been asked, it cannot be said that for the said question the
witness should be called and cross-examined again by exercising the inherent
powers of the Court. The Court below has rightly rejected the application and
this Court does not find any infirmity in the order, moreso any illegality or
perversity which can warrant interference by this Court under Article 227 of
the Constitution of India.
7. If such applications are allowed then in every litigation if some questions
are left to be asked by any counsel or by the mistake of the counsel, the same
shall be asked by invoking inherent powers of recalling of the witness of the
Court. This practice is not acceptable under the law. The petitioner has ample
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opportunity to rebut the existence of Will in his evidence or from other
plaintiff's witnesses in their cross-examination.
8. With the aforesaid, the petition stands dismissed.
(DEEPAK KHOT)
JUDGE
Priya.P
