The power to recall a witness under Order 18 Rule 17 is discretionary and should not be used to exploit evidentiary gaps; it must prioritize justice and not disrupt trial proceedings.

JUDGMENT :

B.P. ROUTRAY, J.

1. Heard Ms. P. Mohanty, learned counsel for the Petitioners and Ms. S.S. Deo, learned counsel for the Opposite Parties 1, 2, 3, 5, 7 & 9.

2. Present C.M.P. is directed against the order dated 18.07.2025 of learned Civil Judge (Sr. Divn.) 2^nd Court, Cuttack passed in C.S. No.169 of 2013, wherein the prayer of Defendants 1 to 4 to further cross-examine D.W.3 by recall has been rejected.

3. Present Opposite Parties 1, 2, 3, 5 being the Plaintiffs filed C.S. No.169 of 2013 praying for declaration of right, title and interest over the suit schedule property along with permanent injunction and other consequential reliefs. After closure of evidence from the side of the Plaintiffs, witnesses from the side of Defendant No.3 were examined and D.W.3 is the witness examined from the side of Defendant Nos.6 and 7. On the date of examination of said D.W.3 after he filed his evidence affidavit two days prior to that, the parties were required to cross-examine said witness on the date fixed, i.e. 10.04.2025. All the Defendants through their counsels were present for cross-examination of the witness and Defendants 1 to 4 were first given the opportunities to cross-examine said witness. Accordingly, said D.W.3 was cross- examined by Defendants 1 to 4 and thereafter further cross-examined by other set of Defendants. When the evidence from the side of Defendants 6 & 7 was closed and the suit was posted for adducing evidence from the side of Defendants 8 to 19, a petition under Order 18 Rule 17, C.P.C. was filed on behalf of Defendants 1 to 4 seeking recall of D.W.3 for his further cross-examination.

4. It is submitted on behalf of the present Petitioners, who are Defendants 1 to 4, that by looking to the evidence of D.W.3 it is clear that said witness was not cross-examined properly by them on the date fixed. It is further submitted by Ms. P. Mohanty, learned counsel for the Petitioners that the conducting counsel for Defendants 1 to 4 suddenly fell ill on the date fixed for cross-examination of D.W.3 and therefore, he without completing the cross-examination of said witness was bound to abandon the same. Therefore, adequate opportunity should be extended in favour of Defendants 1 to 4 to further cross-examine D.W.3.

5. Conversely, Ms. S.S. Deo, learned counsel on behalf of the Plaintiffs submits that, Defendants 1 to 4 if will be allowed to cross- examine D.W.3 at this stage after he was cross-examine by other set of Defendants, said Defendants 1 to 4 would get their chance to fill up the lacunas in the evidence of D.W.3 thereby tacitly succeeding in their attempt to dilute the interest of justice.

6. Order 18 Rule 17, C.P.C. authorizes the Court to recall any witness who has already been examined to put such questions to him. But this liberty with the Court is not unbridled and it is settled that it should be used sparingly in appropriate cases. In K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275, it has been 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 evi