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KRUSHNA RAM MOHAPATRA
Basanta Kumar Pradhan – Appellant
Versus
Gati Krushna Rout – Respondent
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. Learn
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-exa....
The court's discretion to recall witnesses and reopen evidence exists to clarify contradictions rather than fill evidence gaps, ensuring justice and preventing abuse of the process.
The authority to recall a witness for cross-examination after discharge is limited and must be justified; its misuse violates procedural law.
The discretion to recall a witness under Order XVIII Rule 17 CPC allows clarification of ambiguities in testimony, essential for fair adjudication without filling gaps in evidence.
Re-examination in civil cases should be permitted rarely and cannot be used to fill in the lacunae in evidence.
Re-examination of witness—Re-examination cannot be used to give a chance to witness to undo statement of witness made in cross-examination and fill in lacunae in evidence.
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