Judgment

B.K.NAYAK, J.

Order dated 16.03.2013 passed by the learned Civil Judge (Senior Division) First Court, Cuttack in Title Suit No.160 of 2002/Title Suit No.117 of 1994 allowing the petition filed by the defendants to recall P.W.10 (plaintiff) for further cross-examination, has been assailed in this writ application.

2. The petitioners have filed the suit for declaration of right, title and interest over the suit land, against the State. After closure of evidence, while arguments in the suit were being heard, the Government pleader representing the defendants-State filed an application under Order 18 Rule 17 of the C.P.C. with a prayer to recall P.W.10 (plaintiff) for his further cross-examination on the ground that the previous G.P. having expired during the pendency of the suit, P.W.10 could not be effectively cross-examined by the A.G.P. and that after he was engaged to conduct the suit, while going through the evidence he found that P.W.10 has not been effectively cross-examined. Along with the application, a list of questions necessary to be put to the witness during further cross-examination was attached. The petition was opposed to by the plaintiff by filing objection stating that P.W.10 was cross-examined at length and discharged and that at the belated stage the petition has been filed to recall the witness only to fill up the lacuna which should not be allowed.

3. By the impugned order, the learned trial court allowed the petition holding that the questions appended to the recall petition appear to be genuine and required for just and proper adjudication of the matter in controversy and to clarify the ambiguities in the evidence of P.W.10 and that since P.w.10 is the plaintiff himself no prejudice will be caused to him for further cross-examination on the questions appended to the petition.

4. With regard to the scope of Order 18 Rule 17 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of K.K. Velusamy v. N. Palanisamy: (2011) 11 SCC 275 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.)

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 fur