Orissa Rashtrabhasa vs Goura Gopal Das & Others .... Opposite
2025 Latest Caselaw 5773 Ori

Orissa High Court

Orissa Rashtrabhasa vs Goura Gopal Das & Others .... Opposite on 23 May, 2025

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

      IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR
                    C.M.P No.1446 of 2024

        Orissa Rashtrabhasa       ....        Petitioners
        Parishad, Puri & others
                        Mr. B. Bhuyan, Senior Advocate
                               -Versus-
        Goura Gopal Das & others ....               Opposite
                                                    Parties
                          Mr. S.K. Mishra, Senior Advocate
                                   for opposite party No.12


             CORAM:
             JUSTICE R.K. PATTANAIK

             DATE OF JUDGMENT:23.05.2025
      1.

Instant petition is filed by the petitioners assailing the impugned order dated 8th November, 2024 as at Annexure-7 passed in connection with C.S. No.457 of 2011 by learned Senior Civil Judge, Puri, whereby, an application under Order 18 Rule 17 C.P.C. to recall and further cross-examination of defendant No.10 was rejected.

2. The petitioners as plaintiffs instituted the suit in C.S. No.457 of 2011 before the learned Court below to declare the defendants having no interest and authority

to meddle with the affairs of petitioner No.1 with such other consequential reliefs including permanent injunction.

3. As per the case of the petitioners, petitioner No.1 is a registered society under the Society Registration Act, whereas, petitioner Nos.2 to 10 are its elected members of the Executive Body and in so far as the opposite parties are concerned, they are creating troubles in the function of petitioner No.1. It is pleaded that the opposite parties claiming themselves as the members of the Executive Body of petitioner No.1 filed a suit in the year 1995 against the then President and other office bearers of petitioner No.1 with reliefs including declaring the Body with its members to be valid and in accordance with law. It is further pleaded that the opposite parties claimed a compromise and manufactured a document fabricating the signatures of the defendants therein but the same was not accepted by the Court, as a result of which, the suit was withdrawn without any liberty being granted to file a fresh one imposing cost on them but neither the cost was deposited nor the suit was pursued and in fact, it was abandoned and even after such abandonment of

the said suit, some of the plaintiffs with others in the office of petitioner No.1 continued to commit mischief from time to time and in order to make illegal gain, they sold the property of the organization to a 3 rd party though having no such authority or power to do so and sale it, therefore, naturally the possession could not be delivered. Since, the opposite parties created trouble in running the day to day business of petitioner No.1, the petitioners instituted the suit in C.S. No.457 of 2011. In the suit, the opposite parties filed the W.S. and claimed it not to be maintainable at the instance of plaintiff Nos. 2 to 10 as them having no relation with petitioner No.1, namely, plaintiff No.1 and denied all the averments of the plaint at Annexure-1. It is pleaded therein that petitioner No.1 was managed by a Governing Body and after expiry of period of three years, the General Body held its meeting on 30th August, 2011 and elected a new Body for the administration and management of the organization, hence, the Body was reconstituted with the opposite parties elected as the office bearers as members of the Executive Body and with such pleading on record, the opposite parties demanded dismissal of the suit.

4. While the matter was subjudice before the learned Court below, the petitioners filed an application for marking certified copy of the plaint in T.S. No.445 of 1996 as an exhibit as the said suit was instituted by defendant No.10 and opposite party No.12 but it was rejected, against which, CMP No.77 of 2018 was filed and this Court by order dated 17th March, 2023 permitted the same and as a result, the document was marked as Ext.21. It is also pleaded that consequent upon disposal of CMP No. 77 of 2018, the opposite parties exhibited two documents and the same was allowed by the learned Court below on 12th July, 2023, assailing which, the petitioners filed CMP No.785 of 2023 and it was allowed vide order dated 8th December, 2023 and as a result, the documents were precluded from being exhibited. Against the aforesaid backdrop, the petitioners moved the application seeking recall of defendant No.10 (D.W.2) for the purpose of confronting him, a copy of the plaint in T.S. No.445 of 1996 i.e. Ext.21, with a plea that in that plaint, the plaintiffs including the defendant claimed themselves to be the employees under petitioner No.1 and all were seeking a declaration as the employees of the organization but in the present suit, he claims to be

the elected Secretary of petitioner No.1 and while under cross-examination, denied about the suit in T.S. No.445 of 1996, to which, defendant No.10 filed an objection on the ground that no such averment is pleaded on record and the application is filed to prolong the litigation and therefore, it should be dismissed. A copy of the objection is at Annexure-6. But according to the petitioners, such a request for further cross-examination of defendant No.10 was denied for the reason that it was not accompanied with any questionnaire. Since the certified copy of the plaint is to be confronted and it had not been marked as exhibit by the time when D.W.2 was examined and discharged, therefore, the application as per Annexure- 4 was moved seeking his recall but it has been followed by the impugned order i.e. Annexure-7, which, in absence of any reasons assigned by the learned Court below, is liable to be interfered with followed by directions issued in that regard.

5. Heard Mr. Bhuyan, learned Senior Advocate for the petitioners and Mr. Mishra, learned Senior Advocate appearing for opposite party No.12. Notices to other opposite parties have not been issued

6. Perused the objection of the opposite parties at Annexure-6 to the application of the petitioners seeking recall of D.W.2. It is submitted by Mr. Bhuyan, learned Senior Advocate of the petitioners that learned Court below lost sight of the fact that the suit has been instituted concerning the affairs of petitioner No.1 and since defendant No.10 and others had filed T.S. No.445 of 1996, wherein, there was an admission by them and it was not confronted earlier, since by then, the copy of the plaint of that suit had not been marked as an exhibit, for the said purpose, recall of defendant No.10 was necessary and the same is permissible in view of Section 145 of the Indian Evidence Act to confront him his previous statement in writing, which may be used either for contradiction or corroboration but learned Court below failed to appreciate the same and rejected the application i.e. Annexure-4. The contention is that there was no such occasion to confront Ext.21 to defendant No.10 by the time he was examined and discharged, the fact, which was not duly taken judicial notice of by learned Court below, hence, the impugned decision by order at Annexure-7 deserves to be set aside.

7. Mr. Mishra, learned Senior Advocate for opposite party No.12 justifies the impugned order i.e. Annexure- 7 and contends that the exhibit of the copy of the plaint of the other suit in T.S. No.445 of 1996 is not relevant. So as to confront it to opposite party No.12, the further contention is that there is no pleading on record to admit any such confrontation of the document i.e. Ext.21 and in view of the delay that apart, learned Court below was perfectly justified in rejecting the request of the petitioners for recall and further cross- examination of D.W.2, hence, the impugned order at Annexure-7 is not to be disturbed.

8. The copy of the plaint in the suit at the behest of opposite party No.12 and others as at Annexure-3 is perused and therein, the plaintiffs sought for a declaration that they are the employees of defendant No.1, namely, petitioner No.1 with a direction to the defendants to pay them the salary with such other consequential reliefs including injunction to restrain their ouster from services by engaging others. It is made to reveal from the record that the copy of the plaint in T.S. No.445 of 1996 is already marked as Ext.21 pursuant to this Court's order in CMP No.77 of

2018 dated 17th March, 2023. The application for recall under Order 18 Rule 17 CPC at the behest of the petitioner is for seeking recall of D.W.2, namely, opposite party No.12 to confront Ext.21. It is not in denial that D.W.2 was examined, cross-examined and discharged on 7th September, 2017. The plaint copy marked as Ext.21 arrived much later to the examination of D.W.2. The application for recall is filed in 2024 almost after seven years from the time of defendant No.10 examined. But then, the document is marked as exhibit only after the order in CMP No.77 of 2018. In fact, a copy of the plaint in T.S. No.445 of 1996 was exhibited in the year, 2023, whereafter, the application under Order 18 Rule 17 CPC has been moved. If one looks at Annexure-4, it would reveal that the said application was filed on 6th November, 2024, after more than one and half years from being exhibited. No doubt, delay has taken place in seeking recall of defendant No.10 for further cross-examination. The objection of opposite parties and in particular, opposite party No.12 is that the application as per Annexure-4 is moved to harass them and to protract the litigation. According to learned Court below, the witness, namely, D.W.2 was cross-examined on 7th September,

2017 after obtaining the certified copy of the plaint in T.S. No.445 of 1996 and hence, the petitioners had ample opportunity to confront him with the same, though, it had not been exhibited by then and besides that, there was no questionnaire furnished.

9. As per the application under Order 18 Rule 17 CPC, a Court may at any stage of a suit recall any witness, who has been examined and may put such questions to him as it considers fit. In fact, Section 165 of the Evidence Act deals with discretionary of the Court to put any such questions to a witness recalled for the purpose of further examination. Moreover, the application under Order 18 Rule 17 CPC reserves the right of the Court to recall a witness for the said purpose. Such right to recall, however, is not restricted to a Court on its own motion but may be exercised at the instance of a party too. The Court has also inherent power to recall a witness for examination, who was cross-examined. Law is well settled that if cogent reasons exist for recalling a witness, the same can be allowed and in so far as the Code is concerned, it does not lay down any prohibition in such matters. Even recalling a witness is permissible in a given set of facts

after the case is closed and the judgment is reserved, since because, such recall and examination of a witness from either of the side may be considered by a Court may be at any time during the pendency of the suit. In certain circumstances, there may be restrictions to recall a witness. In either way, a Court shall have to offer convincing reasons while dealing with an application under Order 18 Rule 17 C.P.C.

10. In the case at hand, briefly stated, the plaint copy in the other suit has been marked as Ext. 21 and as earlier discussed, it was later to the Court's order in C.M.P. No.77 of 2018 dated 17th March, 2023. It may be that the petitioners had a certified copy of the said plaint with them at the time of the examination of D.W.2. and thereafter, the application under Order 18 Rule 17 C.P.C. has been moved. Of course, D.W.2 was examined in September, 2017 and the application for his recall received by learned Court below in November, 2024 which is nearly seven years after. The Court is of the view that even though the delay has taken place, but since, the document was marked as an exhibit in 2023 and such an application under Order 18 Rule 17 C.P.C was pressed into service towards the

end of 2024, notwithstanding such delay, recall for his further cross-examination could have been allowed with cost. The Court is in agreement with Mr. Bhuyan, learned Senior Advocate for the petitioners that such a witness, namely, D.W.2 should have been allowed to be further cross-examined for being confronted to Ext. 21 as the same is permissible in view of Section 145 of the evidence Act. Absence of pleading in the present suit cannot be a ground denying recall of defendant No.10, hence, the Court is not inclined to accept any such the contention advanced. The plaint copy of the other suit having been admitted in evidence, the application under Order 18 Rule 17 C.P.C, since filed by the petitioners even with delay and at the fag end of the suit, the Court reiterates its view that learned Court below should have allowed the same imposing cost to compensate the opposite parties and particularly, opposite party No.12. It is not that the reason for recall is to patch up any lacunae or introduce fresh facts but with regard to the earlier suit instituted by opposite party No.12 along with others and to confront about the same since the plea is that there is an admission by him, which is necessarily to be brought on record to

fortify the claim of the petitioners and the same ought to have been allowed.

11. Hence, it is ordered.

12. In the result, the petition stands allowed with a direction to learned Senior Civil Judge, Puri to summon defendant No.10 examined as D.W.2 for further cross-examination by the petitioners limited to the extent discussed herein before in connection with C.S. No.457 of 2011 and thereafter, to proceed to deal with suit as per and in accordance with law. It is further directed that the above order shall be given effect to subject to payment of cost of Rs.1000/- to be received by opposite party No.12 only.

(R.K. Pattanaik) Judge

Balaram