IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN

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ON THE 14 OF JANUARY, 2026 MISC. PETITION No. 6735 of 2025 KAMTADAS Versus KESHAVDAS ALIAS KRISHNANAND BRAHMAN AND OTHERS Appearance:

Shri Brijendra Swaroop Sahu - Advocate for the Petitioner.

Shri Vijayendra Singh Choudhary - Advocate for the Respondent No.1.

ORDER By way of the present Petition, challenge is made to the Order dated

29.09.2025 passed by the Trial Court whereby the Trial Court has allowed the application of the defendant No.1 under Order 18 Rule 17 of the CPC for recall of Plaintiff's witness Shyam Vishwakarma.

2. The aforesaid Order is assailed on the ground that the application under Order 18 Rule 17 of the C.P.C. for recall of the witness was filed on the ground that this witness had submitted an affidavit alongwith reply to application under Order 39 Rule 1 and 2 of the C.P.C. filed by the defendant No.3 but the defendant No.1 was not in knowledge of such affidavit having been filed and therefore, could not cross-examine this witness on the said affidavit and after obtaining certified copies, it has come to notice of the defendant No.1 that such an affidavit was filed. Therefore, due to contradictory stands taken by this witness Shyam in first submitting affidavit in favour of defendant No.1 but entering in the witness box in favour of Plaintiff, he needs to be cross-examined for that purpose. It is contended that such a purpose would be only to fill up the lacunae in the evidence which amounts to misuse of provisions of Order 18 Rule 17 of the C.P.C.

which could not have been permitted by the Trial Court.

3. Per contra, it is contended by the Respondent/defendant No.1 that the Trial Court has properly allowed the application under Order 18 Rule 17 of the C.P.C and the Court can pass order to discover the proper facts and the relevant facts by recalling the relevant witness by exercising powers under Order 18 Rule 17 of the C.P.C.

4. Upon hearing the learned counsel for the rival parties and on perusal of the record, it is seen that an application for recall of witness Shyam was filed by the defendant No.1 on the assertion that this witness had filed an application in support of reply to temporary injunction application. The said reply was filed by defendant No.3 but now, the same witness has deposed on behalf of the Plaintiff. It was contended in the application that earlier this fact was not in knowledge of the defendant No.1 and this fact has come into knowledge of the defendant No.1 upon obtaining certified copies of the relevant documents.

5. The Trial Court in the impugned Order dated 29.09.2025 has arrived at a categorical finding that once the copy of reply with all supporting documents was duly given to the counsel for defendant No.1 and this has been recorded in Order sheet dated 10.03.2021 and therefore, the copy of affidavit had also been given to the counsel for defendant No.1 on

10.03.2021 itself.

6. The defendant No.1 sought recall of witness Shyamlal on the ground that this witness could not be cross-examined as to the affidavit given in favour of defendant No.3. However, undisputedly the deposition of this witness took place after having received copy of reply submitted by defendant No.3 which contained the affidavit of this witness. The Trial Court has permitted the application for recall of witness only on the ground that the present Advocate of defendant No.1 is appearing for defendant No.1 since 22.03.2025 and therefore, there may be some oversight by the counsel. It is relevant to mention here that the witness Shyamlal has been examined in August 2025 and the Trial Court has allowed the application for recall of witness only on the ground that it appears that there is some oversight of the Advocate in not properly cross-examining the witness by omitting to peruse the affidavit of this witness submitted at an earlier point of time.

7. The aforesaid reason assigned by the Trial Court would only amount to filli