Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Ori) 41

IN THE HIGH COURT OF ORISSA AT CUTTACK
SASHIKANTA MISHRA, J.
Bhimsen Ojha and Another – Appellants
Versus
Samuel Devashish James and Another – Respondents
C.M.P. No. 448 of 2024
Decided On : 16-1-2026

Advocates Appeared:
For the Appellant : Satrughna Dash
For the Respondent: A.R. Dash

The authority to recall a witness for cross-examination after discharge is limited and must be justified; its misuse violates procedural law.

Headnote:(A) Code of Civil Procedure - Order XVIII Rule 17 and Section 151 - Recall of witnesses - Court’s authority to recall a witness for cross-examination is limited and must be justified; once a witness is discharged, recall should not be routine and requires valid reasons - Court must ensure its orders are factually accurate. (Paras 6, 9, 10, and 12)

(B) Civil Procedure - Opportunity to cross-examine witnesses - A defendant must not be granted the opportunity for cross-examination if they chose not to do so initially and failed to provide justifiable reasons. (Paras 9 and 10)

Facts of the case:
The plaintiffs sought recovery of possession from defendants and presented three witnesses, with P.W.2 being cross-examined partially. Defendant No.1 later requested a recall for further cross-examination, which was allowed by the trial Court, leading to the present challenge.

Findings of Court:
The order allowing recall of P.W.2 was found to lack legal justification, with palpable errors evident, rendering it unsustainable.

Issues: The main issues revolved around the justification for recalling a discharged witness for further cross-examination and the adherence to procedural laws.

Ratio Decidendi: The Court ruled the trial court's order violated the stipulations of the Code of Civil Procedure and emphasized that recall orders cannot be made lightly without sufficient reasoning to support them.

Result: C.M.P is allowed; the impugned orders are set aside.

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 21.7.2023 by allowing him to cross-examine P.W.2. Said application was however withdrawn. Again on 12.9.2023, Defendant No.1 filed similar application. The plaintiffs filed their objection questioning the maintainability of the application. By order dated 06.12.2023, the trial Court allowed the application subject to payment of cost of Rs.200/- with direction to the plaintiffs to produce P.W.2 for cross-examination by Defendant No.1. Said order is impugned in the present application. Further, the plaintiffs filed an application on 05.1.2024 to recall the order dtd.6.12.2023, but the same also came to be rejected. Said order is also impugned.

3. Heard Mr. S. Dash (A), learned counsel for the plaintiff-petitioners. Despite valid service of notice, there was no appearance from the side of the defendants. As such, this Court requested Mr. A.R.Dash, learned counsel to assist the Court as Amicus Curiae to which he consented and made submissions.

4. Mr.Dash would argue that there is no provision in the C.P.C. to recall a witness for further cross- examination once he has been discharged. Though the trial court has not referred to any provision of law in the impugned order yet, the power under Order XVIII Rule 17 as well as Section 151 of C.P.C. cannot be utilized for such purpose. Mr. Dash further submits that the Defendant No.1 has not cited any cogent reason for failing to cross-examine P.W.2 at the relevant time. The Trial Court has also not considered the above fact. In support of his arguments, Mr. Dash has relied upon a judgment of the Supreme Court in the case of K.K. Velusamy vs. N. Palanisamy , (2011) 11 SCC 275.

5. Mr. Dash, learned Amicus Curiae, submits that after amendment of the C.P.C. in 2002 by way of deletion of the provision under Order XVIII Rule 17-A, the scope of recalling a witness for cross-examination has become very limited. Referring to the position of law Mr. Dash would argue that recall of a witness after his discharge cannot be routinely directed. Mr. Dash has also cited a recent judgment of the Supreme Court in the case of Shubhkaran Singh vs. Abhayraj Singh and others , 2025 Live Law (SC) 536.

6. This Court observes that the impugned order does not mention as to under which provision of law, the petition was entertained and allowed. The petition filed on 12.9.2023 by Defendant No.1 also does not refer to any provision of law. Be that as it may, fact remains that nothing can be done unless the same is provided by law. In this context, it would be apt to refer to the provision under Order XVIII Rule 17 C.P.C. which reads as follows:

“17. Court may recall and examine witness - The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questio