Location: OHC, Cuttack

Date: 01-Dec-2025 13:07:14

IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No.463 of 2025

(In the matter of an application under Article 227 of the Constitution of

India)

Rabi Narayan Rout and Another …. Petitioners

-versus-

Bairagi Khuntia … Opposite Party

Advocate(s) appeared in this case:-

For Petitioners : Mr. Lingaraj Sarangi, Advocate

For Opp. Party : Mr. S.S. Bhuyan, Advocate

CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

28^th November, 2025

B.P. Routray, J.

1. Heard Mr. L. Sarangi, learned counsel for the Petitioners and

Mr. S.S. Bhuyan, learned counsel for the Opposite Party.

2. Present CMP is directed against order dated 3^rd February, 2025 of learned 2^nd Additional Senior Civil Judge, Bhubaneswar passed in CS No.839 of 2008, wherein the prayer of the defendants to recall

P.W.1 for further cross-examination has been rejected.

Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14

3. Present opposite party being the plaintiff filed CS No.839 of 2008 praying for a declaration that the agreement and General Power of Attorney dated 18^th September, 1993 are not binding being tainted playing fraud and further, to declare their status as tenants along with permanent injunction and consequential reliefs.

4. Though the defendants appeared in the suit in time but did not file their written statement. Ultimately the prayer to file the written statement was rejected. Then the plaintiff produced his witness and he was examined as P.W.1. After examination-in-chief, the date was fixed for cross-examination of P.W.1 by the defendants. Despite several dates were fixed for said purpose the defendants did not cross-examine the witness. It was fixed to 4^th January, 2024 for further cross-examination of P.W.1 and the same was deferred on the prayer of the defendants. The date was then adjourned to 1^st February, 2024, subject to payment of cost of Rs.2000/- by the defendants. Though the defendants paid the cost, but did not cross- examine P.W.1 also on 1^st February, 2024 and the date was then fixed to 22^nd February, 2024. On 22^nd February, 2024 again time was taken by the defendants and the date was fixed to 1^st March, 2024. On 1^st March, 2024 the defendants again took time and the date was Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 fixed to 27^th March, 2024. On 27^th March, 2024 though the defendants filed their hazira but were found absent on repeated call for which the learned trial court waited till 1pm and then closed the cross-examination of P.W.1 from the side of defendants.

5. The defendants filed recall petition on 18^th April, 2024 praying to recall P.W.1 on the ground that the conducting Advocate was busy in High Court in a matter and so he could not attend the court in time. Said prayer was rejected by the trial court on 3^rd February, 2025 vide present impugned order. This is challenged in present CMP.

6. It true that after deletion of Rule 17-A in 2002 amendment, the scope of recalling a witness in terms of Order 18, Rule 17 has been limited for the party. In exercise of power under Order 18, Rule 17 though the court is authorized to recall a witness as and when necessary but in this regard the party has very limited scope to pray for recall of the witness. In K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275, the Hon’ble Supreme Court while explaining the power and scope of the party under Order 18 Rule 17 read with Section 151 of C.P.C., has explained as follows:-

Location: OHC, Cuttack Date: 01-Dec-2025 13:07:14 “9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable t