Shashibala v. Virendra Kumar

submits that petitioner is aggrieved by rejection of her application filed under Oder 18 Rule 17 CPC by the Trial Court, as affirmed by Revisional Court. He submits that the Trial Court rejected the application under Order 18 Rule 17 CPC, vide order dated 16.08.2019 and the Revisional Court affirmed the said order, vide judgment dated 27.02.2021, rendered in Civil Revision No. 39 of

2019. 1

3. From the pleadings made in the writ petition, it is revealed that respondent filed a suit for partition, inter alia on the ground that he is co-owner in respect of the property in question, which was purchased jointly by a common sale deed in the name of plaintiff and defendant. The said suit was numbered as Civil Suit No. 128 of 2010. In the said suit, after cross- examination of plaintiff, petitioner moved an application under Order 18 Rule 17 CPC, seeking recall of the plaintiff for the purpose of cross-examination. In the said application, it was stated that plaintiff could not be cross examined on the question of his financial capacity to purchase the property and other attending circumstances, which were prevailing at the time of execution of sale deed.

4. Learned Trial Court [Civil Judge (Junior Division), Rudrapur] rejected the said application vide order dated 16.08.2019 by holding that Order 18 Rule 17 CPC only enables the Court to recall a witness, in order to clarify any issue or doubt either suo moto or at the request of any party, however, it does not create any right in favour of a party to re-open the evidence for the purpose of further examination-in-chief or cross-examination.

5. Petitioner, thereafter filed Civil Revision No. 39 of 2019 challenging Trial Court’s Order. The said revision was also dismissed by learned District Judge, Udham Singh Nagar, vide judgment dated 27.02.2021. In this petition, petitioner has challenged both the aforesaid judgment and orders. 2

6. Mr. Siddhartha Singh, learned counsel for the petitioner submits that in the written statement, filed by petitioner, it was pleaded that entire sale consideration for purchasing the property in question, was paid by petitioner’s husband and name of the plaintiff (respondent herein) was added in the sale deed as purchaser, in good faith; however, during cross- examination, question regarding financial capacity of the plaintiff to purchase 1/2 share of the property could not be put to him; since that question goes to the root of the matter, therefore, the application for recall of the plaintiff was moved, which deserved to be allowed; the learned Trial Court erred in rejecting the said application and the Revisional Court also committed error in not allowing the revision filed by petitioner.

7. Per contra, Mr. Jagdish Chandra Belwal, learned counsel for the respondent submits that provision contained in Order 18 Rule 17 CPC enables a Court to recall a witness, if there is some ambiguity in the evidence or the Court wants to elucidate on some points. He further submits that this provision cannot be invoked for filling up omission in the evidence, already led by a witness.

8. Order 18 Rule 17 of the Code of Civil Procedure, 1908 is reproduced below:- “17. Court may recall and examine witness.- The Court may at any stage of a 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.” 3

9. In the case of Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, reported as (2009) 4 SCC 410, Hon’ble Supreme Court while considering the scope of power under Order 18 Rule 17 CPC held as under:- “25. In our view, 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. involved

27. In the instant case, Sadanand Shet was shown to have been actively in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after the cross- examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed..

28. 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.

10. Similarly, in the case of Ram Rati v. Mange Ram, reported as (2016) 11 SCC 296, Hon’ble Supreme Court held as under:- “11. The respondent filed the application under Rule 17 read with Section 151 CPC invoking the inherent powers of the court to make orders for the ends of justice or to prevent abuse of the process of the court. The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either suo motu or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. 4 No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. “No prejudice is caused to either party” is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground.

12. In Vadiraj Naggappa Vernekar v. Sharadchandra Naggappa Prabhakar Gogate [Vadiraj Gogate, Vernekar v. Sharadchandra (2009) 4 SCC 410, this principle has been summarised at paras 25, 28 and 29 : Prabhakar “25. In our view, 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. ***

28. 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.

29. It is now well settled that 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 indicated hereinabove, 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.” suit, but as

13. In K.K. Velusamy v. N. Palanisamy [, the 5 principles enunciated in Vadiraj have been followed, holding at paras 9 and 10 : (K.K. Velusamy case SCC pp. 281-82) “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 the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already (Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate) examined.

10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to further recall any witnesses 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 questions and elicit answers. Once a witness purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.” (emphasis in original) is recalled

14. The rigour under Rule 17, however, does not affect the inherent powers of the court to pass the required orders for ends of justice to reopen the evidence for the purpose of further examination or cross-examination or even for production of fresh evidence. This power can also be exercised at any stage of the suit, even after closure of evidence. Thus, the inherent power is the only recourse, as held by this Court in K.K. Velusamy at para 11, which reads as follows : (SCC p. 282) “11. There is no specific provision in the Code enabling the parties to reopen the evidence further cross-examination. examination-in-chief purpose 6 Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing reopening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under Section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.”

18. The settled legal position under Order 18 Rule 17 read with Section 151 CPC, being thus very clear, the impugned orders passed by the trial court as affirmed by the High Court to recall a witness at further elaboration on the is wholly impermissible in law.” respondent left out points”, instance of “for

11. In a recent judgment, rendered by Hon’ble Supreme Court in the case of Shubhkaran Singh v. Abhayraj Singh, reported as 2025 SCC OnLine SC 1028, Hon’ble Supreme Court reiterated that the power available to the Court under Order 18 Rule 17 CPC should be used sparingly and in exceptional cases, only for removing ambiguities for clarifying the statement and not for filling up the lacuna in a party’s case. Paragraph nos. 7, 8 & 9 of the said judgment are extracted below:- “7. This Rule provides the Court with a power which is necessary for the proper conduct of a case. If it appears to a court trying the suit at any stage of the proceedings that it is necessary to recall and further examine a witness it can always do so. This power can be exercised even at the stage of writing a judgment by the court. It is, however, proper that 7 this power should not be exercised lightly and the rule is that it should be used sparingly and in exceptional cases only. The power is to be used for removing ambiguities, for clarifying the statement and not for the purposes of filling up the lacuna in a party's case. It is true that the power can be exercised by the Court at its own initiative and may even be so done at the instance of a party. Section 165 of the Evidence Act provides that a Judge may in order to discover or obtain proper proof of relevant facts, ask any question he pleases in any form at any time of any witness about any fact relevant. The section further provides that the parties shall not be entitled to make any objection to any such question, nor cross-examine any witness upon any answer given in reply to any such question without the leave of the Court. If the provisions of Order 18 Rule 17 are read along with the provisions of Section 165 of the Evidence Act it is clear that the power to recall and re-examine a witness is exclusively that of the court trying the suit. The parties to the suit cannot take any objection to the question asked nor can they be permitted to cross-examine any witness without the leave of the court.

8. The said rule, in our opinion, makes it abundantly clear that the right to put questions to the witness recalled under Rule 17 is given only to the court and even cross-examination is not ordinarily permitted on the answers given to such questions, without the leave of the court. Under that rule therefore, a witness cannot be recalled at the instance of a party for the purpose of examining, cross examining or re-examining, and that rule is not intended to serve such purpose, and the purpose for which that rule can be invoked is the one that is indicated above.

9. In this connection, we may refer to the following Bin Omer v. Vijayachand Sirmal [AIR 1966 AP 295.], which accords with the above view: observations in Sultan Saleh “A close reading of this rule makes it obvious that the right under that Rule to put question at any stage or a suit or recall any witness for that purpose, is given to the Court. The court can put questions to the witness recalled, and no cross-examination is ordinarily allowed upon the answers to the questions put by the Judge without leave…….. It cannot therefore be said that an opportunity to a party to recall any witness for the purpose of examining cross- examining or re-examining is governed by O. 18, R. 17 CPC ………..” 8

12. In view of the settled legal position, as discussed above, learned Trial Court was justified in rejecting the application for recall of witness made by the petitioner, as recall of witness was sought for purposes of filling up the lacuna in petitioner’s case. Learned Revisional Court also was right in not interfering with the Trial Court’s Order.

13. Thus, this Court do not find any reason to interfere in the matter.

14. The writ petition fails and is dismissed. No order as to costs. ________________________ MANOJ KUMAR TIWARI, J. Dt: 11.07.2025 Navin 9