IN THE HIGH COURT OF ORISSA AT CUTTACK AFR CMP No.1086 of 2024 Prabhakar Sahoo & others …. Petitioners Mr. D. Dhal, Advocate -

-Versus Sesadev Sahoo & others …. Opposite Parties Mr. R.K. Swain, Advocate CORAM:

JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:17.06.2025

1. Instant petition is filed by the petitioners assailing the impugned order dated 20^th July, 2024 passed in connection with the suit in C.S. No.62 of 2005(I) by learned Civil Judge, Junior Division 2^nd Court, Cuttack as at Annexure-6, whereby, an application under Order 18 Rule 17 CPC at the behest of opposite party Nos.1 to 4 seeking recall of opposite party No.11 examined as a witness from their side was allowed on the grounds inter alia that such a decision is not legally tenable, hence, liable to be interfered with in the interest of justice.

2. Briefly stated, the suit is instituted by the petitioners against opposite party No.1 to 4 and original defendant No.5 for a declaration of them having the right, title and interest including possession over and in respect of the suit schedule land and to permanently injunct the latter, who in case found to be in possession, to recover such possession with the process of Court and such other reliefs as entitled under law. The contesting defendants challenged the suit of the petitioners. In fact, defendant Nos.1, 2 and 4 filed a common WS and a separate one by defendant No.3. In so far as original defendant No.5 is concerned, no defence was filed by him. On the death of defendant No.5, he was substituted by opposite party No.11 and others. The evidence from both the sides was concluded and thereafter, opposite party Nos.1 to 4 moved the application under Order 18 Rule 17 CPC requesting therein to recall opposite party No.11 examined as DW 5 for a specific purpose to confront certain facts with reference to the decree passed in T.S. No.288 of 2000 in juxtaposition to another decree dated 5^th December, 1990 in T.S. No.304 of 1989 with a plea that the same is absolutely necessary for a just decision in the suit. Even though, an objection was received from the petitioners to entertain such recall, as it was at the fag end of the suit pending at the stage of argument, learned court below allowed the application exercising powers under Order 18 Rule 17 CPC with recall of DW 5 subject to cost payable to the other side by the impugned order dated 20^th July, 2024 i.e. Annexure-6. The said decision of allowing recall of opposite party No.11 for the purpose of further examination in the hands of opposite party Nos.1 to 4 and legality thereof is under question by the petitioners.

3. Heard Mr. Dhal, learned counsel for the petitioners and Mr. Swain, learned counsel for opposite party Nos.1 to 4.

4. According to Mr. Dhal, learned counsel for the petitioners, defendant Nos.1, 2, 3 and 4 contested the suit and not original defendant No.5 and he was also set ex-parte and later died on 17^th September, 2007 during the pendency of the suit, whereafter, his legal heirs defendant Nos.5 (a) to 5 (g) were substituted and in spite of summons issued to them, none chose to contest either and all were also set ex-parte and during and in course of hearing of the suit, plaintiff No.4 was examined as PW 1, cross- examined and discharged and the evidence from the side of the plaintiffs was closed and thereafter, the defendants led evidence and it was closed on 22^nd April, 2024 and then the argument was commenced from both the sides on different dates, but in course of such argument, the conducting counsel for defendant Nos.1 to 4 informed the learned court below that the consent was being taken from him, in response to which, notice was issued to defendant Nos.1 to 4, who ultimately appeared, engaged another counsel and thereafter, on 5^th July, 2024, such an application under Order 18 Rule 17 CPC as at Annexure-4 to recall DW 5 was filed solely to confront him about the compromise decrees in both the suits, such as, T.S. No.304 of 1989 and T.S. No.288 of 2000,