IMPORTANT POINT
Recall of witness – Section 138 of N.I. Act permits re-examination of witnesses but it cannot be exercised to the extent of taking away effect/withdraw any statement made during examination/cross-examination of a witness.

JUDGMENT

Krushna Ram Mohapatra, J.—This matter is taken up through hybrid mode.

2. Petitioner in this writ petition seeks to assail the order dated 6th September, 2012 (Annexure-5) passed by learned Civil Judge, (Senior Division), Dhenkanal in CS No.11 of 2007, whereby an application filed under Section 138 of the Indian Evidence Act, 1872 (for brevity ‘the Act’) for re-examination of the D.W.2, namely, Kirti Chandra Rout has, been allowed.

3. Mr. Das, learned counsel for the Plaintiff-Petitioner submits that the suit has been filed claiming title through adverse possession over the suit property and for other consequential relief. During cross-examination of D.W.2 by Defendants Nos.10 to 14, he deposed as under:

“10. I have no claim over the residential house constructed by the Plaintiff and his brother over the Plot No.762 under Khata No.4. It is not a fact that I am stating falsehood in the Court.”

4. Thereafter, Defendant No.2 filed an application to recall the D.W.2 for re-examination to clarify the statement made at para-10 of his deposition. The said application has been allowed relying upon the case of Rammi @ Rameshwar vs. State of MP, reported in AIR 1999 SC 3544. Learned trial Court erroneously held that there is no bar to recall a witness for re-examination for clarification of any ambiguity in the deposition of a witness during cross examination.

5. It is further submitted that a witness cannot be recalled to patch up the lacuna in his deposition during examination/cross-examination. Learned trial Court failed to appreciate the same and passed the impugned order. Hence, the impugned order under Annexure-5 is not sustainable and is liable to be set aside.

6. Mr. Rao, learned counsel for the Defendant-Opposite Party No.2 submits that in the meantime, Defendant-Opposite Party No.1 has died. He further submitted that there is no bar under law to recall a witness for re-examination to explain the statement made during his examination/cross-examination to remove the ambiguity and to clarify the situation. He also relied upon the case of Rammi @ Rameshwar (supra), which reads as under:—

“16. The very purpose of re-examination is to explain matters which have been brought down in cross-examination. Section 138 of the Evidence Act outlines the amplitude of re-examination. It reads thus:

“138. X X X X

Direction of re-examination.—The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.”

17. There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examination. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.”

7. In the cross examination made by Defendant Nos.10 to 14, the D.W.2 in a confusion stated that he had no claim over the house constructed by the Plaintiff and by his brother. The said statement was inadvertent one and without understanding the question, put to the witness. As such, an application