[Cites 4, Cited by 0]

Orissa High Court

Rabi Narayan Rout And Another vs Bairagi Khuntia ... Opposite Party on 28 November, 2025

Author: B.P. Routray

Bench: B.P. Routray

Signature Not Verified
Digitally Signed
Signed by: MANAS KUMAR PANDA
Reason: Authentication
Location: OHC, Cuttack
Date: 01-Dec-2025 13:07:14



                          IN THE HIGH COURT OF ORISSA AT CUTTACK
                                             CMP No.463 of 2025
                  (In the matter of an application under Article 227 of the Constitution of
                  India)

                   Rabi Narayan Rout and Another                  ....                 Petitioners

                                                               -versus-

                   Bairagi Khuntia                                ...              Opposite Party

                  Advocate(s) appeared in this case:-

                               For Petitioners          :   Mr. Lingaraj Sarangi, Advocate
                               For Opp. Party           :   Mr. S.S. Bhuyan, Advocate

                                 CORAM: JUSTICE B.P. ROUTRAY
                                                   JUDGMENT

th 28 November, 2025

B.P. Routray, J.

1. Heard Mr. L. Sarangi, learned counsel for the Petitioners and

Mr. S.S. Bhuyan, learned counsel for the Opposite Party.

2. Present CMP is directed against order dated 3rd February, 2025

of learned 2nd Additional Senior Civil Judge, Bhubaneswar passed in

CS No.839 of 2008, wherein the prayer of the defendants to recall

P.W.1 for further cross-examination has been rejected.

3. Present opposite party being the plaintiff filed CS No.839 of

2008 praying for a declaration that the agreement and General Power

of Attorney dated 18th September, 1993 are not binding being tainted

playing fraud and further, to declare their status as tenants along

with permanent injunction and consequential reliefs.

4. Though the defendants appeared in the suit in time but did not

file their written statement. Ultimately the prayer to file the written

statement was rejected. Then the plaintiff produced his witness and

he was examined as P.W.1. After examination-in-chief, the date was

fixed for cross-examination of P.W.1 by the defendants. Despite

several dates were fixed for said purpose the defendants did not

cross-examine the witness. It was fixed to 4th January, 2024 for

further cross-examination of P.W.1 and the same was deferred on

the prayer of the defendants. The date was then adjourned to 1st

February, 2024, subject to payment of cost of Rs.2000/- by the

defendants. Though the defendants paid the cost, but did not cross-

examine P.W.1 also on 1st February, 2024 and the date was then

fixed to 22nd February, 2024. On 22nd February, 2024 again time was

taken by the defendants and the date was fixed to 1 st March, 2024.

On 1st March, 2024 the defendants again took time and the date was

fixed to 27th March, 2024. On 27th March, 2024 though the

defendants filed their hazira but were found absent on repeated call

for which the learned trial court waited till 1pm and then closed the

cross-examination of P.W.1 from the side of defendants.

5. The defendants filed recall petition on 18th April, 2024 praying

to recall P.W.1 on the ground that the conducting Advocate was

busy in High Court in a matter and so he could not attend the court

in time. Said prayer was rejected by the trial court on 3 rd February,

2025 vide present impugned order. This is challenged in present

CMP.

6. It true that after deletion of Rule 17-A in 2002 amendment, the

scope of recalling a witness in terms of Order 18, Rule 17 has been

limited for the party. In exercise of power under Order 18, Rule 17

though the court is authorized to recall a witness as and when

necessary but in this regard the party has very limited scope to pray

for recall of the witness. In K.K. Velusamy v. N. Palanisamy, (2011)

11 SCC 275, the Hon'ble Supreme Court while explaining the

power and scope of the party under Order 18 Rule 17 read with

Section 151 of C.P.C., has explained 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 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 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 case at hand it is found that despite many

opportunities were given to the defendants to cross-examine P.W.1,

as narrated in above paragraph, he failed to cross-examine said

P.W.1. Now the petition has been filed to recall said P.W.1 on the

ground that the conducting counsel was busy in High Court in a

matter. Of course, such a ground to adjourn the matter has been

expressly prohibited in Order 17, Rule 1(2)(c). The P.W.1 in the

instant case has filed his written evidence affidavit in the year 2018

and thereafter as per the opinion of the learned trial court the copy of

the same could be served on the counsel for the defendants with

much difficulty in the year 2019. It is true that the defendants have

cross-examined P.W.1 in part and took time to further cross-examine