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Judgment
Savitri Ratho, J.
This CMP has been filed challenging the order dated 09.07.2026 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in Civil Suit No.113 of 2020 allowing the application filed by the defendant No.1 under Order-18, Rule 17 of Civil Procedure Code (in short “CPC”) for recall of P.W.1 for further cross-examination.
APPLICATION UNDER ORDER 18 RULE 17 C.P.C.
The application was filed by Defendant No.1 stating that the civil suit has been filed for partition of the suit Schedule land and the defendant No.1 is the only contesting party who had filed written statement denying the averments in the plaint. After closure of the evidence from both the sides when the case was posted for argument, the plaintiff has filed the document which was marked as Ext. 9 in this case and the defendant was not given opportunity to cross-examine P.W. 1 with regard to Ext.9. So unless P.W. 1 is recalled to enable Defendant No.1 to put questions to him with regard to Ext.9, the defendant No.1 will suffer irreparable loss and injury.
OBJECTION
The plaintiff objected to the said petition stating that it is misconceived, malafide, an afterthought and solely intended to delay the proceedings. The document Ext.9 was rightly exhibited by the Court as it is a public document and a crucial piece of evidence to determine the ownership right in the suit property and the defendant had not raised any objection to the admissibility of this document at the appropriate stage and was attempting to reopen evidence at the stage of argument, which is impermissible. So the petition should be rejected.
IMPUGNED ORDER
The learned trial Court after perusal of the record observed that on 25.07.2025, the petition filed by the plaintiff, to mark the certified copy of RoR pertaining to Khata No. 1546 as exhibit had been allowed and it was marked as Ext.9. Referring to the principle of law decided in K.K. Velusamy vs. N. Palaanisamy : (2011)11 SCC 275, the learned trial Court held that the suit was filed for partition and the defendant would be prejudiced if not afforded adequate opportunity to contest the matter on merit. Holding that for proper adjudication of the suit, it was deemed necessary that the Defendant No.1 should be afforded an opportunity to further cross-examine the P.W.1, allowed the application for recall of P.W.1 directing the counsel for the plaintiff to produce P.W.1 positively on the next date.
SUBMISSIONS
Mr. Tapan Mishra, learned counsel for the Petitioner submits that the impugned order is liable for interference as Ext.9 had been marked without any objection, and much after closure of evidence, the petition to recall P.W.1 was filed without giving any explanation for the delay. He also submits that Ext.9 is not relevant for deciding the case, for which it was not necessary to allow any opportunity to the defendant to cross-examine P.W.1 with respect to Ext. 9.
STATUTORY PROVISION
The provision of Order 18 Rule 17 of the C.P.C. is extracted below:-
“Court may recall and examine witness-The provision provides that the Court may at any stage of a suit recall any witness who has been examined and may subject to the law of evidence of the time being in force put such questions to him as the Court thinks fit.”
JUDICIAL PRONOUNCEMENTS
The relevant paragraphs the decision of the Supreme Court in the case of Vadiraj Naggappa Vernekar (Dead) through LRS. vs. Sharadchandra Prabhakar Gogate : 2009 (4) SCC 410, are extracted below:
“25.In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.”
“28.The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.
29.It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination.”
(Emphasis supplied)
In K.K. Velusamy (Supra), the Supreme Court cautioned that the power should not be exercised routinely and not allowed to protract the trial and if the application is found to be frivolous or mischievous, cost can be awarded while dismissing the application or even after the evidence is recorded. The relevant paragraph of the judgment is extracted below:-
“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. 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.”
In the case of Shubhkaran Singh vs Abhayraj Singh and Others: 2025 INSC 628 : 2025 SCC OnLine SC 1028, the Supreme Court has clarified as follows : -
“7.This Rule provides the Court with a power which is necessary for the proper conduct of a case. If it appears to a court trying the suit at any stage of the proceedings that it is necessary to recall and further examine a witness it can always do so. This power can be exercised even at the stage of writing a judgment by the court. It is, however, proper that this power should not be exercised lightly and the rule is that it should be used sparingly and in exceptional cases only. The power is to be used for removing ambiguities, for clarifying the statement and not for the purposes of filling up the lacuna in a party's case. It is true that the power can be exercised by the Court at its own initiative and may even be so done at the instance of a party. Section 165 of the Evidence Act provides that a Judge may in order to discover or obtain proper proof of relevant facts, ask any question he pleases in any form at any time of any witness about any fact relevant. The section further provides that the parties shall not be entitled to make any objection to any such question, nor cross- examine any witness upon any answer given in reply to any such question without the leave of the Court. If the provisions of Order 18 Rule 17 are read along with the provisions of Section 165 of the Evidence Act it is clear that the power to recall and re-examine a witness is exclusively that of the court trying the suit. The parties to the suit cannot take any objection to the question asked nor can they be permitted to cross-examine any witness without the leave of the court.”
(Emphasis supplied)
DISCUSSION AND CONCLUSION
It is no longer res-integra that power under Order 18 Rule 17 CPC can be exercised suo moto by the Court or at the instance of any party at any stage if it will assist the Court clarify evidence on the issues and assist in rendering justice. Such power can be exercised at any stage but such power should be exercised sparingly. This power should not be exercised for the purposes of filling up the lacuna in a party's case.
The provision does not place any restriction as to the stage when such power can be exercised. That apart, it appears from the impugned order that Ext.9 has been exhibited after closure of the evidence of witnesses for which the plaintiff cannot have any grievance that at the stage of argument, the petition under Order 18 Rule 17 of the C.P.C has been filed for recall of the witness.
Although I am of the view that some cost should have been imposed while allowing the petition, but cost cannot be imposed now without hearing Defendant No.1. This will delay disposal of the CMP which would not be in the interest of the plaintiff-petitioner.
In the present case, Ext. 9 has been exhibited at the instance of the plaintiff i.e. P.W.1 after closure of evidence and since the defendant has not been granted an opportunity to cross-examine P.W.1 with respect to Ext. 9, I find no illegality or perversity in the reasoning given by the learned trial Court for allowing the application for recall of P.W.1 so as to interfere with the order in exercise of power under Article 227 of the Constitution of India.
In view of the discussion, I do not find any reason to interfere with the impugned order for which the CMP is dismissed.
Mr. Mishra, learned counsel for the Petitioner then submits that since the suit is of the year 2020 and was posted for argument, direction may be issued to the learned trial Court for expeditious disposal of the suit.
In my opinion, as the suit is of the year 2020, it would not be proper for this Court to issue any direction to the learned trial Court for disposal of the case within a stipulated time or out of turn in the absence of any special circumstance.
However, as the civil suit was at the stage of argument, after cross examination of P.W.1 on recall, the learned trial Court is requested to make an endeavour to dispose of the civil suit without granting unnecessary adjournments.
The CMP is dismissed with the aforesaid direction.
Copy of this judgment be communicated to the learned Civil Judge (Senior Division), 1st Court, Cuttack.