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Judgment
Dr. Sanjeeb K Panigrahi, J.
The petitioner has filed this petition assailing the order dated 01.08.2025 at Annexure-1, passed by the learned Civil Judge (Senior Division), (LR & LTV), Jagatsinghpur in C.S. No.178 of 2012, whereby his application under Order 18 Rule 17 of the Code of Civil Procedure, 1908 for recall of P.W.1, Plaintiff No.2 (the present petitioner), came to be rejected.
I. FACTUAL MATRIX OF THE CASE:
The brief facts of the case are as follows:
The petitioner, as Plaintiff No.2, instituted C.S. No. 178 of 2012 before the learned Civil Judge (Senior Division), Jagatsinghpur, seeking partition of the suit properties among the plaintiffs and Defendant Nos. 1 to 5, and a permanent injunction restraining Defendant Nos. 6 to 10 (the present Opposite Party Nos. 6 to 10) from taking possession of the suit land.
In the course of the trial, the petitioner (Plaintiff No.2) filed his evidence on affidavit under Order 18 Rule 4 C.P.C. and was examined as P.W.1 on 10.07.2025. His examination-in-chief was concluded on that very day, twenty documents (Exts. 1 to 20) were exhibited on his behalf, and he was partly cross-examined by Defendant Nos. 6 and 7 (the present Opposite Party Nos. 6 and 7). The matter was thereafter adjourned to 16.07.2025 for his further cross-examination.
While the petitioner as Plaintiff No.2 stood partly cross-examined and his cross-examination had not been concluded, he filed a petition on 16.07.2025 under Order 18 Rule 17 C.P.C. for recall of P.W.1 (Plaintiff No.2) to prove the compromise petition and the Kaccha farad executed on 20.11.2018. (iv). Upon hearing the said petition, the learned Civil Judge (Senior Division), (LR & LTV), Jagatsinghpur rejected it, holding that the petitioner (P.W.1), having been partly cross-examined, could not be recalled for a further examination-in-chief solely to prove a compromise petition, and that such a course does not answer the purpose for which a witness may be recalled under Order 18 Rule 17 C.P.C.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
Mr. Debakanta Mohanty, learned counsel for the petitioner, earnestly made the following submissions in support of his contentions:
The petition is directed against the order dated 01.08.2025 passed in C.S. No. 178 of 2012 by the learned Civil Judge (Senior Division), Jagatsinghpur, by which the application of the plaintiff-petitioner under Order 18 Rule 17 C.P.C. to recall P.W.1 for the purpose of proving the compromise petition at Annexure-3 and marking it as an exhibit on behalf of Plaintiff No.2 was rejected.
The suit, C.S. No. 178 of 2012, was instituted by the petitioner as Plaintiff No.2 along with Prafulla Chandra Mohanty (Plaintiff No.1), who died during its pendency and has since been substituted by his legal representatives, seeking partition of the suit schedule property and a permanent injunction. Opposite Party Nos. 1 to 5 are the co-sharers and are arrayed as Defendant Nos. 1 to 5 in the suit. Opposite Party Nos. 6 to 10 are Defendant Nos. 6 to 10 therein, who are the purchasers.
In the course of the hearing of the suit, Plaintiff No.2, who is the petitioner herein, was examined as P.W.1, and during his cross-examination a petition was filed on his behalf for his recall in order to prove the amicable partition deed dated 20.11.2018 at Annexure-3 and to mark it as an exhibit on his behalf. The learned trial court declined to recall P.W.1 by the impugned order dated 01.08.2025 at Annexure-1, and the petitioner has accordingly approached this Court assailing that order.
The sole ground on which the application under Order 18 Rule 17 C.P.C. for recall of P.W.1 was rejected is that a witness who has been partly cross-examined cannot be recalled for further examination-in-chief to prove a compromise petition. That ground is unsustainable in law.
As a matter of fact, the prayer for recall of P.W.1 was made before the closure of his evidence. The recall could well have been allowed with a direction that the further examination-in-chief be taken up after the conclusion of his cross-examination, in which event no prejudice would have been caused to the defendants, nor would any procedural irregularity have arisen. The refusal of the prayer to recall P.W.1 to prove a document not only prejudices the interest of Plaintiff No.2-petitioner but also carries the risk of an ineffective adjudication of the suit.
The contention of the opposite parties that the compromise petition at Annexure-3 sought to be introduced by Plaintiff No.2-petitioner is illegal and has not been admitted does not touch the merits of the application under Order 18 Rule 17 C.P.C., inasmuch as the legality and validity of that document can be adjudged at the final hearing of the suit. Even if it is proved through P.W.1, it remains subject to cross-examination by the defendants, and its admissibility is open to challenge by them at the final hearing of the suit. The learned court below has therefore committed an error of law in rejecting the application of Plaintiff No.2-petitioner to recall P.W.1, and the impugned order dated 01.08.2025 passed by the learned Civil Judge (Senior Division), (LR & LTV), Jagatsinghpur is illegal and liable to be set aside.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY NOS. 1 TO 5 :
Per contra, Mr. Ananta Narayan Pattanayak, learned counsel for Opposite Party Nos. 1 to 5, earnestly made the submission that the present CMP is not maintainable before this Court and deserves to be rejected in limine.
It is a fact that the petitioner (Plaintiff No.2) filed his evidence on affidavit under Order 18 Rule 4 C.P.C. and was examined as P.W.1 on 10.07.2025. His examination-in-chief was completed on that very day, twenty documents (Exts. 1 to 20) were exhibited on his behalf, and he was partly cross-examined by Defendant Nos. 6 and 7 (the present Opposite Party Nos. 6 and 7). The matter was adjourned to 16.07.2025 for his further cross-examination and he has not been discharged from the witness box. The law does not permit a witness to seek his own recall for further examination-in-chief unless he stands discharged from cross-examination by the defendants. His petition under Order 18 Rule 17 C.P.C. for recall of P.W.1 is therefore not maintainable and the learned court below has rightly rejected it by the order dated 01.08.2025.
The petitioner is not entitled to seek his own recall for further examination-in-chief for the purpose of proving the compromise petition and the Kaccha Farad. The reason is that the compromise petition and Kaccha Farad dated 20.11.2018 constitute an unregistered family partition, prepared by Plaintiff No.2-petitioner by obtaining the signatures of Defendant Nos. 1 to 5 (the present Opposite Party Nos. 1 to 5) on blank papers, taking advantage of their innocence and good faith and they had no knowledge of the said document. Further, though Plaintiff No.2-petitioner placed the compromise petition before the learned court below on 20.11.2018, it has not been admitted by that court at any point of time till date and it is therefore not sustainable in the eye of law.
On coming to know that the compromise petition had been prepared by the plaintiff-petitioner in a fraudulent manner, Opposite Party Nos. 1 to 5 filed applications under Section 151 C.P.C. before the learned court below, praying that the compromise petition and Kaccha Farad dated 20.11.2018 be declared inappropriate, wrong and uncalled for since they do not stand good in law and that the same not to be taken on record in the suit. Those applications are pending adjudication before the court below.
The compromise petition is a wholly fraudulent document. Opposite Party Nos. 1 to 5, who are equal shareholders in the property in question, oppose and dispute it on the ground that it was not prepared in a genuine manner and that the properties have not been divided among the shareholders according to their entitlement. When the document itself is disputed by the major shareholders and has not been admitted by the learned court below at any point of time, the question of its being exhibited before the court at the instance of the petitioner does not arise. The learned court below has therefore rightly rejected the recall application, holding the document to be irrelevant for exhibition in the suit, and the petitioner, having been partly cross-examined, could not file such an application during the interval of his examination.
The learned Civil Judge (Senior Division), (LR & LTV), Jagatsinghpur, by the order dated 01.08.2025, has correctly set out the position of law under Order 18 Rule 17 C.P.C. and has rightly taken the view that the recall of the witness for the purpose of proving the document by way of further examination-in-chief was wholly unnecessary, the compromise petition having never been admitted by that court and the petitioner having never brought the document on record at any point of time, not even in his examination-in-chief, though he was fully aware of the facts and the documents.
It is further submitted that though the suit was instituted in the year 2012, the evidence on the side of the petitioner came to be led only in the year 2025, which reflects an attempt on his part to linger the proceedings pending before the learned Civil Judge (Senior Division), Jagatsinghpur and to enjoy and eventually grab the entire properties by protracting the suit year after year and delaying its disposal. The application is nothing but a delaying tactic and was destined to be a futile exercise. Reliance is placed on the decision of the Hon’ble Supreme Court of India in the case of K.K Velusamy Vrs. N Palanisamy1 wherein the Court, clarifying the position of law, stated that while adjudicating a petition under Order 18 Rule 17 of CPC the power of the concerned court 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, and that the said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined.
Reliance is further placed on the recent decisions of the Hon’ble Supreme Court in the case of Shubhakaran Singh vrs. Abhayraj Singh & Ors2. and K. Bharathamma vrs. Bandaru Sakku Bai & Ors3 wherein a similar view has been echoed.
IV. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY NOS. 6 & 7 :
Per contra, Mr. Binaya Kumar Mohanty, learned counsel for Opposite Party Nos. 6 and 7, earnestly made the submission that the present CMP is not maintainable before this Court and deserves to be rejected:
P.W.1 has already been examined. Apart from that, the document which the plaintiff seeks to have exhibited is a compromise petition involving the properties of Defendant Nos. 6 and 7 without their being made parties to it and is an illegal and unregistered document. There is no description in the pleadings of its contents or even of its existence, such act would have given the defendants an opportunity of filing their written statement to that effect. If the document is exhibited, the defendants shall be prejudiced.
The compromise petition and Kachha Farda sought to be exhibited, in order to record a compromise between the plaintiff and the defendants, are neither a family partition nor a Kachha Farda giving effect to any compromise or adjustment of the properties involved in the suit. The compromise petition being an unregistered document, the learned court below has not admitted the compromise petition and Kachha Farda at any point of time.
The power to recall a witness under Order 18 Rule 17 may 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. In the present case the learned court below has taken the view that the said recall of the witness for the purpose of proving the document by way of further examination-in-chief was wholly unnecessary and an exercise of elongation of the trial.
Plaintiff No.2-petitioner has not been discharged from cross-examination as a witness. The law, therefore, does not permit him to file a petition for his own recall for further examination-in-chief unless he stands discharged from the witness box. His petition under Order 18 Rule 17 C.P.C. for recall of P.W.1 is accordingly not maintainable, and the learned court below has rightly rejected it by the order dated 01.08.2025. He therefore prays for dismissal of the present CMP.
V. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY NO. 8 TO 10:
Per contra, Mr. Bibekananda Bhuyan, learned Senior Counsel for Opposite Party Nos. 8 to 10, earnestly made the submission that the present CMP is not maintainable before this Court and deserves to be rejected:
Learned Senior Counsel adopted the arguments advanced on behalf of Opposite Party Nos. 1 to 7 and further submitted that an application under Order 18 Rule 17 for recall of a witness for examination-in-chief is not maintainable in the course of cross-examination. The power to recall a witness under Order 18 Rule 17 may 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 and the power is discretionary which should be exercised 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 exercised to fill up the omissions in the evidence of a witness who has already been examined.
The learned court below has rightly rejected the petition filed by the plaintiff-petitioner under Order 18 Rule 17 by the order dated 01.08.2025, and has rightly observed that the petition was only an attempt to introduce fresh evidence to fill up the gaps in his evidence, which is not permissible under the provisions of law. He therefore prays for dismissal of the present CMP.
VI. COURT’S REASONING AND ANALYSIS:
Heard learned counsel for the parties and perused the documents and the judgments placed before this Court, and considered the law enumerated under Order 18 Rule 17 of the Code of Civil Procedure, 1908.
In the instant case the petitioner (Plaintiff No.2) filed his evidence on affidavit before the learned court below and was examined as P.W.1 on 10.07.2025, when twenty documents (Exts. 1 to 20) were exhibited on his behalf. His examination-in-chief was completed and, on the very same day, he was partly cross-examined by the defendants. The matter was thereafter adjourned to 16.07.2025 for his further cross-examination. During the cross-examination, and without having been discharged from the witness box, Plaintiff No.2-petitioner (P.W.1) filed a petition under Order 18 Rule 17 C.P.C. seeking his own recall for examination-in-chief for the purpose of proving the compromise petition and Kaccha farad executed on 20.11.2018 and marking the same as an exhibit on his behalf. The entire exercise is sought to be supplemented midway through the cross-examination by introducing documents which had not formed part of his evidence earlier.
On the other hand, Defendant Nos. 6 and 7 (the present Opposite Party Nos. 6 and 7) objected before the learned court below that P.W.1 had already been examined, and that the document sought to be exhibited at the instance of the plaintiff is a compromise petition involving the properties of Defendant Nos. 6 and 7 without their being made parties to it, an illegal and unregistered document of whose contents or existence there is no description in the pleadings, which would have given the defendants an opportunity of filing their written statement to that effect. It was accordingly contended that permitting such a document to be introduced at this belated stage would fundamentally alter the complexion of the plaintiff's case and would visit the defendants with a prejudice which could not be adequately undone by a mere opportunity of cross-examination. The petition was, therefore, vehemently opposed, the defendants submitting that Order XVIII Rule 17 could not be employed as a device to introduce a new piece of evidence and thereby fill the gaps left in the plaintiff's case.
After hearing the said petition, the learned Civil Judge (Senior Division), (LR & LTV), Jagatsinghpur rejected the petition filed by Plaintiff No.2-petitioner under Order 18 Rule 17 C.P.C. by the order dated 01.08.2025, holding that a witness who has been partly cross-examined cannot be recalled for a further examination-in-chief solely to prove a compromise petition. The purpose of recalling a witness under Order 18 Rule 17 C.P.C. is primarily to enable the court to clarify any doubt or issue arising from the evidence already led, whether on its own motion or at the instance of a party. To permit the witness to be recalled for that purpose, after the commencement of cross-examination, would be to allow the plaintiff to reopen a chapter of his evidence which had already been closed and to introduce material which had not formed part of his case at the proper stage. Recall could have been justified only if the Court found it necessary to elucidate or clarify some matter already emerging from the evidence concerning the alleged compromise, it could not be invoked merely as a vehicle for bringing entirely fresh evidence on record. It is not intended to permit parties to fill up gaps in their evidence or to introduce fresh evidence which could have been produced earlier. A party intending to prove a compromise petition ought to have done so during the initial examination-in-chief or by producing the relevant documents. Recall of a witness for such a purpose would be improper unless the court finds it necessary in order to clarify something relating to the compromise.
It is further apt to notice from the record that the compromise petition and Kaccha farad executed on 20.11.2018 have never been admitted by the learned Civil Judge (Senior Division), Jagatsinghpur, and that the defendants have neither voluntarily agreed to nor accepted them, though the same were filed before the learned court below. Plaintiff No.2-petitioner himself submitted before the learned court below, at the time of hearing of the petition, that the compromise petition and Kaccha farad had not been admitted by the court.
It is also on record that Opposite Party Nos. 1 to 5 (Defendant Nos. 1 to 5) have filed applications under Section 151 C.P.C. before the learned court below to declare the compromise petition and Kaccha Farad dated 20.11.2018 inappropriate, wrong and uncalled for, as not standing good in law, and to keep the same out of the record of the suit, assigning reasons that the compromise petition is a wholly fraudulent document and that the opposite parties, who are equal shareholders in the properties, oppose and dispute it as not having been prepared in a genuine manner and as not dividing the properties among the shareholders according to their entitlement.
A bare reading of Order 18 Rule 17 C.P.C. makes it obvious that the right to put a question at any stage of the suit, or to recall a witness for that purpose, is conferred upon the court. It is the court which may put questions to the witness. Ordinarily, no examination-in-chief or cross-examination is open, without leave, upon the answers given to the questions put by the Judge. The scheme and object of the provision suggest that the power to recall a witness lies in the realm of the discretion of the court.
A frequent resort to Order 18 Rule 17, CPC, has the tendency to develop into an abuse of the process of the court and to protract the litigation. The court should not allow this provision to become a handy tool in the hands of a party to the suit proceedings to prolong the litigation. This aspect was highlighted by the Hon’ble Supreme Court in the case of Gayathri Vrs. M.Girish4, while emphasizing completion of trial within a time schedule, it was observed that interlocutory applications containing prayers for reopening of the evidence and recalling of witnesses have to be considered only on compelling facts and for acceptable reasons.
It is laid down as a trite principle that the provision of Order 18 Rule 17, CPC, cannot be invoked on the specious ground that recalling the witness or reopening the evidence would cause no prejudice to the other side. The mere absence of demonstrable prejudice, by itself, does not furnish a legitimate ground for exercising the jurisdiction under the said provision. In Vadiraj Naggappa Vernekar (Dead) through LRs Vrs. Sharadchandra Prabhakar Gogate5, the Hon’ble Supreme Court observed thus:
“ 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.”
It was therefore observed in K.K Velusamy Vrs. N Palanisamy (supra) that the power under Order 18, Rule 17, CPC as also under Section 151, CPC, is not intended to be used in a routine manner and merely for the asking. If permitted to be so used, it would defeat the very purpose of expediting the trial, and a dishonest litigant would gain undue advantage by prolonging the proceedings under the pretext of recalling witnesses or reopening the evidence. In paragraphs 9, 10 and 19 it was held thus:
“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.
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,
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 clarity 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 mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.”
In the case of Shubhakaran Singh vrs. Abhayraj Singh & Ors6, the Hon’ble Supreme Court has succinctly observed that:
“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.
8.The said rule, in our opinion, makes it abundantly clear that the right to put questions to the witness recalled under Rule 17 is given only to the court and even cross-examination is not ordinarily permitted on the answers given to such questions, without the leave of the court. Under that rule therefore, a witness cannot be recalled at the instance of a party for the purpose of examining, cross examining or re-examining, and that rule is not intended to serve such purpose, and the purpose for which that rule can be invoked is the one that is indicated above.”
In the case of K. Bharathamma vrs. Bandaru Sakku Bai & Ors7, it was held thus:
“6.Summing up on the scope, nature and applicability of the provision of Order XVIII Rule 17, CPC, on the basis of the provisions of law laid down in the judicial decisions highlighted above, this provision is in the nature of power-cum-discretion vested in the court. It aims to become an aid to the court in the adjudicating process of the suit. The provision is in the nature of a facilitator to the court in the suit proceedings, to be used and invoked within the discipline of the trial and within the bounds of the rules of evidence.
6.1The parameters for invocation and use of Order XVIII Rule 17, CPC, are thus well-established. It is not meant for a routine exercise. Nor it is a provision which can be employed on mere asking by a party, unless the court wants any clarification on any aspect of the evidence already led in the proceedings. Though the provision could be invoked at the instance of a party to the suit, basically and essentially it is the discretionary power to be exercised by the court itself. This provision can be put into play neither by the party nor by the court itself to permit to fill up the gaps, omissions or lacunae in the evidence.
6.2It is not permissible that the evidence by a party already led and settled is allowed to be improved by reopening the evidence or recalling the witness under this Order of CPC. The provision is not a tool whereby a party can embellish the evidence, fill in the omissions therein or refine the evidence at a later stage.”
Hence, invocation of Order XVIII Rule 17 of the CPC is not meant to be used routinely.
VII. CONCLUSION:
In view of the foregoing discussion, and upon a careful and dispassionate consideration of the facts and circumstances emerging from the record, this Court finds no reason to disturb the order dated 01.08.2025 passed by the learned Civil Judge (Senior Division), (LR & LTV), Jagatsinghpur in C.S. No. 178 of 2012. The impugned order, when viewed in the light of the record as a whole, bears neither the mark of an error apparent nor any infirmity calling for the corrective hand of this Court. The CMP, therefore, finds no foothold in law or on facts and must fall. It is, accordingly, dismissed.
The learned Civil Judge (Senior Division), Jagatsinghpur, before whom the suit has been pending since the year 2012, shall endeavour to bring the long-pending litigation to its final and quietus with all reasonable expedition, preferably within a period of four months from the date of receipt of an authenticated copy of this judgment. The passage of years has already cast a long shadow over the lis, it is, therefore, expected that no further delay shall be permitted to prolong the uncertainty which has engulfed the parties for so long.
Interim order, if any, passed earlier stands vacated.