The court emphasized that recalling witnesses is discretionary and should assist in clarifying evidence without covering evidential gaps.

Mr. Tapan Coomar Dey Ms. Shreya Chatterjee … for the petitioner Mr. Pijush Chaturvedi, Sr. Advocate Mr. Jitendra Patnaik ..for the opposite party This application under Article 227 of the Constitution of India is at the instance of the defendant and is directed against an order being no. 64 dated 23rd April, 2025 passed by the learned Judge, 5^th Bench, City Civil Court at Calcutta in Ejectment Suit No. 08 of 2017.

By the order impugned the application filed by the opposite party herein praying for recall of P.W.-1 stood allowed.

The learned advocate appearing for the petitioner submits that the opposite party sought to fill up the lacuna in evidence by recalling P.W.-1 which is not permissible. In support of such contention he places reliance upon a decision of the Hon’ble Supreme Court in the case of Vadiraj Naggappa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate reported at 2009(4) SCC 410. He further submits that the application for recalling was filed after the cross-examination of P.W.-1 was closed. He submits that at such a belated stage recall of P.W.-1 should not have been allowed. In support of suchcontention he places reliance upon a decision of the Hon’ble Supreme Court in the case of M/s. Bagai Construction Vs. M/s. Gupta Building Material Store reported at AIR 2013 (SC) 1849. He further refers to a decision of the Hon’ble Supreme Court in the case of Shubhkaran Singh Vs. Abhayraj Singh & Ors. reported at MANU/SC/0636/2025 in Special Leave to Appeal (C )

Nos. 12012-12013/2025.

Per contra Mr. Chaturvedi, learned senior advocate appearing for the opposite party places reliance upon a decision of the Hon’ble Supreme Court in the case of K.K. Velusamy Vs. N. Palanisamy reported at (2011) 11 SCC 275 in support of his contention that an application for recalling can be allowed if the same is necessary for doing complete justice between the parties. He further places reliance upon a decision passed by this Court on 9^th June, 2025 in C.O. 1199 of 2025 between the self same parties.

The opposite party herein filed a suit for eviction against the petitioner. After closure of the cross- examination of P.W.-1 the opposite party filed an application for recall of P.W.-1 along with a supplementary affidavit in chief. The opposite party prayed for leave to produce the certified copy of the extract of the resolution of the plaintiff company passed in the Board meeting dated 2nd July, 1999 and for marking the same as an exhibit.

The Hon’ble Supreme Court in Vadiraj Naggappa Vernekar (supra) reiterated the well settled proposition of law that the power to recall any witness under Order 18 Rule 17 of the Code can be exercised by the court either on its own motion or on an application filed by any one of the parties to the suit requesting the court to exercise such power and such power is discretionary as would be evident from the use of the word “may” in Order 18 Rule 17 of the Code and should be used sparingly only in appropriate cases to enable the Court to clarify any doubts it may have in regard to the evidence led by the parties and such power is not intended to be invoked to fill up the lacunae in evidence. It was further held that if a party comes across some evidence which he could not lay his hands on earlier or in regard to the conduct or action of any party it comes into existence, the court may in exercise of its inherent power under Section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose. The Hon’ble Supreme Court further held that where additional evidence, oral or documentary, will assist the court to clarify the issues and will assist in rendering justice, the court may exercise its discretion to recall the witnesses or permit the fresh evidence.

Thus it is well settled that fresh evidence can be permitted if the same would assist in rendering justice.

The Hon’ble Supreme Court in the re