Orissa High Court

Gurudutta Sahoo vs Madhusudan Sahoo & Ors. .... Opposite ... on 20 November, 2025

Author: B.P. Routray

Bench: B.P. Routray

Signature Not Verified
Digitally Signed
Signed by: SANGRAM DAS
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 28-Nov-2025 13:27:24




                                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                                     C.M.P. No.1165 of 2025

                           (In the matter of an application under Article 227 of the Constitution
                           of India)


                             Gurudutta Sahoo                           ....               Petitioner


                                                                     -versus-


                             Madhusudan Sahoo & Ors.                   ....           Opposite Parties



                           Advocate(s) appeared in this case:-

                                          For Petitioner          : Mr. P.C.Acharya, Advocate

                                          For Opposite Parties    : Mr. A.K.Acharya, Advocate



                                             CORAM: JUSTICE B.P. ROUTRAY
                                                             JUDGMENT

th 20 November 2025

B.P. Routray, J.

1. Mr. P.C.Acharya, learned counsel for the Petitioner seeks to

delete the name of Opposite Parties 2 & 3 at his risk.

2. Accordingly, the name of Opposite Parties 2 & 3 is deleted.

Location: High Court of Orissa, Cuttack

3. Heard Mr. P.C.Acharya, learned counsel for the Petitioner and

Mr. A.K.Acharya, learned counsel for Opposite Parties.

4. Present CMP is directed assailing order dated 17 th June 2025

of learned Senior Civil Judge, 1st Court, Cuttack passed in C.S.

No.1052 of 2022, wherein the prayer of Defendants No.1 & 2 to

recall D.W.2 to mark Plaintiff's daughter's Marriage Invitation

Card as Ext.A has been refused.

5. The Plaintiff, who is present Opposite Party No.1, filed the

suit praying for partition. In the suit, a dispute is raised on behalf

of Defendants No.1 & 2 that the Plaintiff is not the son of

Defendant No.1. In order to substantiate such contention

Defendants No.1 & 2 have adduced their evidence after closer of

evidence from the side of the Plaintiff. Now at the stage of

continuation of evidence from the side of other Defendants and

pending examination of D.W.3, such prayer has been made on

behalf of Defendants No.1 & 2 to recall D.W.2 for the afore-stated

purpose.

6. It is true that the Court has very limited power under Order 18

Rule 17 to recall any witness for further examination. Explaining

the principles with regard to Order 18 Rule 17 read with Section

Location: High Court of Orissa, Cuttack

151 CPC, the Hon'ble Supreme Court in K.K. Velusamy v. N.

Palanisamy, (2011) 11 SCC 275, have held as follows:-

"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 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] .)

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

Location: High Court of Orissa, Cuttack

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 witness to enable the court to put such question to elicit any clarifications.

Xx .. xx .. xx ..

19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take

Location: High Court of Orissa, Cuttack

up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.

20. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application.

21. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. The courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, reopening, recalling, or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory applications which in turn add to the period of pendency."

7. In the given facts of the case at hand, it is true that the

marriage card proposed to be exhibited on behalf of Defendant

No.2 is regarding marriage of daughter of the Plaintiff and

admittedly Defendants No.1 & 2 are not the author of such

Location: High Court of Orissa, Cuttack

marriage card nor it is a public document. Their purpose to re-

examine the D.W.2 as per their averments made in the petition

dated 12th September 2024 (Annexure-4) is only for marking said

marriage card as exhibit in order to bring the same on record.

When D.W.2 is not the author of the marriage card, it is not

necessary on the part of Defendants No.1 & 2 to recall said D.W.2

for that limited purpose only to exhibit the marriage card in