NAFR HIGH COURT OF CHHATTISGARH, BILASPUR WP227 No. 107 of 2024

1. Santoshi D/o Kripal Aged About 50 Years R/o Village Kutara, Tahsil Janjgir, District Janjgir-Champa (C.G.)

2. Manishankar S/o Shivcharan Aged About 21 Years R/o Village Kutara, Tehsil Janjgir, District Janjgir-Champa (C.G.)

3. Ravi Kumar S/o Shivchara Aged About 14 Years Minor Through Natural Guardian Elder Brother Manishankar, R/o Village Kutara, Tehsil Janjgir, District Janjgir-Champa (C.G.)

---- Petitioner Versus

1. Shakuntala Devi D/o Kripal Aged About 52 Years R/o Village Kutara, Tahsil Janjgir, District Janjgir-Champa (C.G.)

2. Saraswati Devi D/o Kripal Aged About 45 Years R/o Village Kutara, Tahsil Janjgir, District Janjgir-Champa (C.G.)

3. Kripal S/o Bhartiya Aged About 85 Years R/o Village Kutara, Tahsil Janjgir, District Janjgir-Champa (C.G.)

4. State Of Chhattisgarh Through The Collector, Janjgir, District Janjgir-Champa (C.G.)

---- Respondent For Petitioners : Shri NK Chatterjee, Advocate.

For Respondent/State : Miss Vaishali Mahilong, Panel Lawyer.

Hon'ble Shri Deepak Kumar Tiwari, J

Order On Board

14/06/2024 :

1. This petition has been filed challenging the order dated 13^th December, 2023 passed by the 1^st Civil Judge, Class-I, Janjgir, District Janjgir Champa in civil Suit No.54-A/2021 whereby the application preferred by the petitioners/defendants under Order 18 Rule 17 of the CPC for recalling of plaintiff No.2 Saraswati Devi and Plaintiff’s witness namely Purayan Prasad for re-crossexamination was rejected.

2. Facts of the case are that respondents No.1 & 2 (plaintiffs) have filed a civil suit for declaration of title and permanent injunction. The defendants in their written statement claimed the suit property which was acquired through Will. At the time of earlier cross-examination, the previous counsel had not confronted the said witnesses about the Will and to meet the ends of justice, re-crossexamination of the said witnesses is necessary. However, by the impugned order, the same has been rejected. Hence this petition.

3. Learned counsel for the petitioner submits that Bade Bai, during her life time, had executed a Will in favour of Manishankar and Ravi Kumar (petitioner No.3 herein). After the death of Bade Bai, the names of the petitioners have also been mutated and the plaintiffs had challenged the order in appeal which was dismissed by the Revenue Court. However, this aspect has not been confronted to the said witnesses earlier examined. Therefore, an application has been preferred under Order 18 Rule 17 of the CPC for recalling of the said witnesses, which was dismissed by the trial Court. The trial Court has adopted hyper-technical approach, therefore, the writ petition may be allowed and impugned order may be set aside.

4. I have heard learned counsel for the petitioner at length and perused the documents annexed with the writ petition.

5. The provisions contained under Order 18 Rule 17 of the CPC read as under:-

“Rule 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 questions to him as the Court thinks fit.”

6. A bare reading of the provision would clearly indicate that power to recall a witness has been conferred on the Court for putting such questions to him as it thinks fit, but it nowhere entitles a party to recall a witness for further cross-examination or for making some additional statements or for exhibiting and proving the documents.

7. In the instant case, as the earlier counsel had already cross-

examined both the witnesses at length and the trial Court has rejected the application on the ground that power cannot be exercised to enable the party to fill the lacuane in evidence, therefore, discretion exercised by the trial Court while rejecting the application is just and proper, which does not call for any interference by this Court invoking writ jurisdiction.

8. In the result, the Writ Petition