IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DEEPAK KHOT

th

ON THE 15 OF OCTOBER, 2025 MISC. PETITION No. 5671 of 2025 OM PRAKASH KORI AND OTHERS Versus SMT. GOMTI KORI AND OTHERS Appearance:

Shri Ashok Kumar Jain - Advocate for the petitioner.

Shri Dushyant Singh Kaurav - Advocate for the respondent/caveator.

ORDER The present petition under Article 227 of the Constitution of India has been filed by the petitioner being aggrieved by the order dated 11.09.2025 th (Annexure-P/6) passed by 30 Civil Judge, Senior Division, District Jabalpur in RCSA No.6982/2016, whereby an application submitted under Section 151 of CPC by the petitioner/defendant to recall the witness of plaintiff namely Gomtibai has been rejected.

2. It has been contended by learned counsel for the petitioner that after the amendment in the year 2002 in Code of Civil Procedure, the power under Order 18 Rule 17-A has been omitted to recall the witness on the application submitted by the party. However, such power still vests with the Court by invoking inherent power under Section 151 of CPC. It has been submitted that the Hon'ble Apex Court in the case of K.K. Velusamy vs. N. Palanisamy reported in (2011) 11 SCC 275, has held that such power can be exercised in the eventuality when the Court finds that such recalling is in the interest of justice and for fair adjudication of the trial. It is further submitted that such powers can be exercised by the Court by exercising inherent jurisdiction vested with the Court by Section 151 of CPC because the application has been filed on the ground that the counsel who has cross-examined the plaintiff's witness has not asked any question in regard to forged Will or the Will has been executed by committing forgery. He has invited attention of this Court towards the cross-examination of the plaintiff to support his contention that no question has been asked in regard to forgery of the Will. It is submitted that the Hon'ble Apex Court in the case of K.K. Velusamy (supra) has held that the power under Section 151 can be exercised to deal with any particular procedural aspect which is not provided expressly or impliedly in CPC, if ends of justice so warrant and to prevent abuse of process of court, the Court in appropriate cases can exercise its discretion to permit reopening of evidence and/or recalling of witnesses for further examination/cross-examination after evidence led by parties is concluded and arguments have commenced or even when arguments have concluded and case has been reserved for judgment, as there is no provision in this regard in CPC after deletion of Order 18 Rule 17-A. Therefore, recalling is necessary and should have been allowed by the Court below. The Court below has not allowed such application and has committed grave error of law much less jurisdictional error and therefore, interference is called for by this Court under Article 227 of the Constitution of India.

3. Per contra, learned counsel appearing for the respondent on caveat has submitted that the order is just and proper and is not required to be interfered with because the lacuna cannot be filled up by filing an application and recalling the witness. Once the questions have not been asked that cannot be put to the same witness by again preparing it by another counsel. 4. Heard learned counsel for the parties and perused the record.

5 . In the case of K.K. Velusamy (supra), it has been held by Hon'ble the Apex Court in paragraphs - 10 & 11 as under :-

"10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put quest