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2016 DIGILAW 582 (ORI)

Subash Chandra Mohapatra v. Amita Panda

2016-08-01

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 19.9.2009 passed by the learned Civil Judge (Senior Division), Balasore in C.S. No.341/437 of 2000-I/2004; whereby and whereunder the learned trial court rejected two petitions of the defendant no.1-petitoner to recall P.W 1 and D.W.1 for further cross-examination. 2. Opposite party no.1 as plaintiff instituted the suit for partition impleading the petitioner and opposite parties 2 to 8 as defendants. Pursuant to issuance of summons, the petitioner who was defendant no.1 entered appearance and filed written statement stating therein that the suit schedule property has already been partitioned by means of a partition deed dated 18.8.1984. Defendant-opposite party no.3 filed a written statement stating that the suit schedule property has not been partitioned. To prove the case, the plaintiff examined herself as P.W.1 and Defendant no.3 examined herself as D.W.1. Both the witnesses have been cross-examined by defendant no.1. While the matter stood thus, two petitions had been filed by defendant no.1 under Order 18 Rule 17 CPC to allow defendant no.1 for further cross-examination of P.W.1 and D.W.1. It is stated that on the day of cross-examination of P.W.1 by the advocate for defendant no.1, the defendant no.1 was absent. Due to lack of instruction by defendant no.1, some material questions could not be put to P.W.1. Those questions are necessary to be asked through further cross-examination of P.W.1. The same plea was taken in the second petition filed to recall D.W.1. Learned trial court came to hold that the plea taken by defendant no.1 that on the date of cross-examination, defendant no.1 was absent in the court for which proper instruction was not given to the advocate, can hardly be believed and accepted, since the learned advocate for the defendant no.1 did not raise any objection at the time of cross-examination of D.W.1. He further held that on perusal of the schedule of questions mentioned in the petition, it transpires that they are not very much essential for just decision of the suit. Held so, learned trial court rejected two petitions filed by defendant no.1 for further cross-examination of P.W.1 and D.W.1. 3. Heard Mr. Prusty, learned counsel for the petitioner and Mr. Panda, leaned counsel for the opposite party no.1. 4. Mr. Held so, learned trial court rejected two petitions filed by defendant no.1 for further cross-examination of P.W.1 and D.W.1. 3. Heard Mr. Prusty, learned counsel for the petitioner and Mr. Panda, leaned counsel for the opposite party no.1. 4. Mr. Prusty, learned counsel for the petitioner, submitted that on the date of cross-examination of P.W.1 and D.W.1, some material questions could not be put to the witnesses. In view of the fact that defendant no.1 was absent, a further chance should be given to her for cross-examination of P.W.1 and D.W.1. 5. Per contra, Mr. Panda, learned counsel for the opposite party no.1, submitted that the application has been filed to patch up the lacuna and is a ruse. 6. Order 18 Rule 17 CPC provides that the Court may recall and examine the witness. The same is quoted below; “17. Court may recall and examine witness.-The Court may at any stage of suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.” 7. The apex Court in the case of Vadiraj Naggappa Vernekar (Dead) Through LRs v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 had an occasion to consider same claim, particularly, application filed under Order 18 Rule 17 CPC. The apex Court held that though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC. The power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit. But then such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. If the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the trial court to permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. It was further held that some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. 8. In course of hearing, Mr. Panda, learned counsel for the opposite party no.1, filed the Photostat copies of the deposition of P.W.1 and D.W.1. On perusal of the same, it is evident that P.W. 1 was subjected to extensive cross-examination by defendant no.1. So far as D.W.1 is concerned, she was also subjected to extensive cross-examination by defendant no.1 on two dates. The power under 18 Rule 17 CPC is to be exercised sparingly. The power of the Court cannot be invoked to fill up the lacunae in the evidence, which has already been recorded, but to clear any ambiguity that may have arisen during the course of his examination. The petitions have been filed to fill up the lacuna. The order of the learned trial court cannot be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the Constitution. The petition, sans merit, is dismissed. No costs.