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IN THE HIGH COURT OF ORISSA AT CUTTACK
SASHIKANTA MISHRA
Bhimsen Ojha – Appellant
Versus
Samuel Devashish James – Respondent
| Table of Content |
|---|
| 1. challenge to trial court's orders (Para 1 , 2) |
| 2. arguments against recalling witnesses (Para 4 , 5) |
| 3. court's lack of legal basis for ruling (Para 6 , 9 , 10) |
| 4. court's power to recall witnesses (Para 7 , 8 , 11) |
| 5. final decision to allow c.m.p and set aside orders (Para 12 , 13) |
JUDGMENT :
SASHIKANTA MISHRA, J.
1. 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.
The authority to recall a witness for cross-examination after discharge is limited and must be justified; its misuse violates procedural law.
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.
The court emphasized that powers under Order 18, Rule 17 CPC cannot be used to fill omissions in previously recorded witness evidence, reaffirming its intended use for clarification only.
The power to recall witnesses under Order 18 Rule 17 CPC is to clarify ambiguities, not to fill evidentiary gaps, and should be exercised sparingly.
The power to recall a witness under Order 18 Rule 17 CPC is intended to clarify doubts and not to fill omissions in evidence or to allow for further elaboration on left-out issues.
The right to effective cross-examination is fundamental to a fair trial, and parties must be given adequate opportunities to present their defenses, particularly when prior cross-examinations were in....
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