[Cites 6, Cited by 0]
Orissa High Court
Bhimsen Ojha And Another vs Samuel Devashish James on 16 January, 2026
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.448 of 2024
(Application under Article 227 of the Constitution of India)
Bhimsen Ojha and another ... Petitioners
-versus-
Samuel Devashish James
and another ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr.Satrughna Dash(A),
Advocate.
-versus-
For Opposite Parties
: Mr. A.R.Dash, Amicus Curiae
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
16.1.2026.
Sashikanta Mishra,J. The Petitioners, who are the plaintiffs in
C.S. No.793/2017 pending in the Court of learned Civil
Judge (Sr. Division), 4th Additional Court, Cuttack have
filed the present application under Article 227 of the
Constitution of India seeking to challenge the orders
dtd.06.12.2023 and 24.1.2024 passed in the said case.
2. Briefly stated, the plaintiffs have filed the above suit
for recovery of possession of the suit property from the
defendants. After commencement of hearing, three
witnesses were examined by them being P.Ws.1,2 and
3. While P.Ws.1 and 3 were cross-examined by the
defendants, P.W.2 was cross-examined only by
Defendant No.2 with cross-examination by Defendant
No.1 being declined. P.W.2 was thus discharged. The
plaintiffs closed evidence from their side whereupon
Defendant No.1 filed an application on 05.8.2023
seeking recall of order dated 21.7.2023 by allowing him
to cross-examine P.W.2. Said application was however
withdrawn. Again on 12.9.2023, Defendant No.1 filed
similar application. The plaintiffs filed their objection
questioning the maintainability of the application. By
order dated 06.12.2023, the trial Court allowed the
application subject to payment of cost of Rs.200/- with
direction to the plaintiffs to produce P.W.2 for cross-
examination by Defendant No.1. Said order is
impugned in the present application. Further, the
plaintiffs filed an application on 05.1.2024 to recall the
order dtd.6.12.2023, but the same also came to be
rejected. Said order is also impugned.
3. Heard Mr. S. Dash (A), learned counsel for the
plaintiff-petitioners. Despite valid service of notice,
there was no appearance from the side of the
defendants. As such, this Court requested Mr.
A.R.Dash, learned counsel to assist the Court as
Amicus Curiae to which he consented and made
submissions.
4. Mr.Dash would argue that there is no provision
in the C.P.C. to recall a witness for further cross-
examination once he has been discharged. Though the
trial court has not referred to any provision of law in
the impugned order yet, the power under Order XVIII
Rule 17 as well as Section 151 of C.P.C. cannot be
utilized for such purpose. Mr. Dash further submits
that the Defendant No.1 has not cited any cogent
reason for failing to cross-examine P.W.2 at the
relevant time. The Trial Court has also not considered
the above fact. In support of his arguments, Mr. Dash
has relied upon a judgment of the Supreme Court in
the case of K.K.Velusamy vs. N.Palanisamy; (2011)
11 SCC 275.
5. Mr. Dash, learned Amicus Curiae, submits that
after amendment of the C.P.C. in 2002 by way of
deletion of the provision under Order XVIII Rule 17-A,
the scope of recalling a witness for cross-examination
has become very limited. Referring to the position of
law Mr. Dash would argue that recall of a witness after
his discharge cannot be routinely directed. Mr. Dash
has also cited a recent judgment of the Supreme Court
in the case of Shubhkaran Singh vs. Abhayraj
Singh and others; 2025 Live Law (SC) 536.
6. This Court observes that the impugned order does
not mention as to under which provision of law, the
petition was entertained and allowed. The petition filed
on 12.9.2023 by Defendant No.1 also does not refer to
any provision of law. Be that as it may, fact remains
that nothing can be done unless the same is provided
by law. In this context, it would be apt to refer to the
provision under Order XVIII Rule 17 C.P.C. which
reads as follows:
"17. Court may recall and examine witness. -The
Court may at any stage of a suit recall any witness
who has been examined and may (subject to the law
of evidence for the time being in force) put such
questions to him as the Court thinks fit."
7. The power of the Court under the above
provision has been delineated by the Supreme Court in
the case of K.K.Velusamy vs. N.Palanisamy (supra)
in the following words:
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."
8. K.K. Velusamy vs. N.Palanisamy (supra) has
been subsequently referred to by the Supreme Court
with approval in Bagai Construction vs. Gupta
Building Material Store; (2013) 14 SCC 1. In the
recent judgment of the Supreme Court passed in
Shubhkaran Singh vs. Abhayraj Singh and others
(supra), K.K.Velusamy (supra) was also relied upon.
Thus, the position of law as it stands is that the Court
has power to recall and further examine a witness but
such power should not be exercised lightly and must
be used sparingly and in exceptional cases only. It
cannot be a routine direction. In other words, such an
order recalling a witness must be justified by adequate
reasons.
9. Viewed on the anvil of law referred above, this
Court is of the considered view that the impugned
order dtd.06.12.2023 falls far short of the legal
proposition referred above. Firstly, the Court below has
not made the effort to ascertain and satisfy itself that
Defendant No.1 had valid and bonafide reasons for not
cross-examining P.W.2 at the relevant time. It has been
held by the Court below that if such opportunity is not
granted to Defendant No.1 to prove his case he may be
prejudiced and that law is well settled that opportunity
should be given to the defendants to cross-examine the
witness for just and effective decision of the case so
also in the interest of justice. The proposition is correct
but the application is wrong. To amplify, opportunity is
to be given to the defendants to cross-examine, but
here the Defendant No.1 being given the opportunity at
the relevant time chose not to avail it. So, the same
principle will not apply while dealing with an
application to recall a witness for cross-examination.
Moreover, as has been held in the decision cited above,
a witness cannot be recalled only on the ground that it
would not cause any prejudice to the other party. This
Court therefore, is of the view that the impugned order
cannot be sustained in the eye of law and deserves
interference.
10. Before parting with the case, this Court would
like to point out that the impugned order
dtd.6.12.2023 otherwise contains palpable errors
inasmuch as though the petition for recall was filed by
Defendant No.1, yet the impugned order reads as
follows:
"The plaintiff-petitioner in her petition
contended that after closure of cross-
examination from the side of defendant no.2,
the present defendant had to cross-examine
P.W.2 on 21.07.2023 but due to some
unavoidable circumstance the defendant
No.1 could not cross-examine P.W.2 on that
day for which the Court has declined cross-
examination of P.W.2 on behalf of defendant
no.1. Since the defendant no.1 is the main
contesting defendant, cross-examination of
P.W.2 on his behalf is important for the just
decision of the case. Therefore, he prays
before the Court that the order dated
21.07.2023 be recalled and defendant no.1
may be permitted to cross-examine P.W.2
otherwise he shall be highly prejudiced.
xxx xxx xxx xxx xxx"
(Emphasis added)
11. Again, in the last paragraph of the judgment, it
is mentioned that on 21.7.2023, P.W.1 namely, Subas
Das was examined whereas Subas Das was actually
examined as P.W.2. It is apparent that the order was
not corrected by the learned Civil Judge. It is the duty
and responsibility of the Court to ensure that the
orders passed by it are factually correct and free from
errors before signing the same.
12. In the final analysis, as has already been held,
this Court finds the impugned order dated 06.12.2023
unsustainable in the eye of law. Consequently, the
order dtd.24.1.2024 is also held unsustainable.
Resultantly, the C.M.P is allowed. The impugned
orders are set aside.
13. Before parting, this Court places its appreciation
on record for the able assistance rendered by
Mr. A.R.Dash as Amicus Curiae.
................................
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Designation: A.D.R.-cum-Addl. Principal Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Jan-2026 18:27:40
