Trial court's discretionary recall of witnesses under Order 18 Rule 17 CPC upheld for procedural fairness despite delay, subject to costs.

JUDGMENT :

MURALI PURUSHOTHAMAN, J.

This original petition is filed challenging Ext.10 order passed by the Court of the Subordinate Judge, Thodupuzha in I.A. No. 56 of 2025 in O.S. No. 46 of 2010. The suit is filed by the petitioner and respondents 4 to 8 herein for declaration and recovery of possession.

2. According to the plaintiffs, the suit property belonging to them was purported to have been sold in favour of defendants 2 to 4 (respondents 1 to 3) on the strength of a forged power of attorney executed by fraud and impersonation. Later, the defendants 2 to 4 sold the property to additional defendants 6 to 9 (respondents 11 to 14).

3. The suit was included in the additional list for trial on 24.07.2024. On 24.07.2024, the petitioner herein was examined as PW1 in part and Exts. A1 to A34, C1, C1(a), C2 and C2(a) were marked. Defendants 2 to 4 filed I.A No. 46 of 2024 seeking time for cross-examination of PW1 by additional defendants 6 to 9. The said application was allowed and upon request, the case was posted to 05.08.2024. On 05.08.2024, defendants 2 to 4 did not make any representation. On the said date, the cross examination of PW1 by additional defendants 6 to 9 was completed. The case was posted for further evidence to 21.08.2024. Despite having obtained time from the court to cross examine PW1, defendants 2 to 4 did not make any representation on 05.08.2024. The power of attorney holder of plaintiffs 1 and 2 was examined as PW2 and Exts. A35 to A38, A38(a), A39 and A40 were marked. On behalf of defendants 2 to 4, no cross was submitted. Additional defendants 6 to 9 represented and cross-examined PW2.

4. Thereafter, evidence was adduced by additional defendants 6 to 9 as DW1 to DW3. The evidence from their side was closed on 28.02.2025. On 21.02.2025, defendants 2 to 4 filed I.A No. 56 of 2025 seeking to recall PW1 and PW2 for their cross- examination. It was contended that they had sold the suit property to additional defendants 6 to 9 and that they had received legal advice that it is appropriate to conduct the cross examination of PW1 and PW2 only after closing the evidence of additional defendants 6 to 9. On these grounds, they filed Ext.P8 application underSection 151read with Order 18 Rule 17 of theCode of Civil Procedure(CPC) seeking permission to recall PW1 and PW2 for cross-examination.

5. The petitioner herein and other plaintiffs filed an objection to the said application. It was contended that the application has been filed in collusion with additional defendants 6 to 9 and is intended to fill up the lacuna in the evidence which cannot be permitted. It was further contended that sufficient opportunities were granted to the applicants/defendants 2 to 4 and that the present application is clearly an abuse of the process of law. The reasons cited for recalling the witness are untenable and the intention is only to protract the matter. On these grounds, they prayed for dismissal of the application.

6. The trial court after hearing both sides, found that the applicants had ample opportunity to cross-examine PW1 and PW2 and that the reason cited by them for recalling witnesses is not tenable. However, the trial court allowed the application as per Ext.P10 order, subject to payment of costs of Rs.2,000/- each to PW1 and PW2 and posted the case to 11.03.2025 for their appearance. The relevant portion of Ext.P10 reads as follows:

“While the petitioners had ample opportunity to cross-examine Pw1 and Pw2, the question remains whether this alone justifies denying them another chance. According to the learned counsel for the plaintiffs, the reason cited by the petitioners for failing to conduct the cross-examination earlier is not tenable. If, as claimed in the affidavit is correct, that mean