The Supreme Court on Tuesday (August 4) reiterated that the power of the Court under Order XVIII Rule 17 CPC only permits recall of witnesses for examination by the Court itself, not for cross-examination by either of the parties

“…the scope and object of Order XVIII Rule 17, CPC, was to enable the court to clarify doubts regarding evidence led by the party. It was further stated that the provision was not meant to fill up the omissions in the already adduced evidence. It was held that the power to recall a witness who has been examined earlier cannot be exercised for further examination-in-chief or for adducing additional material or evidence, for, such nature of power was available under Order XVIII Rule 17A, CPC, which has been since deleted.”, observed a bench of Justice S.V.N. Bhatti and Justice N.V. Anjaria.

The Court summed up the position on Order XVIII Rule 17 CPC in the following terms:

"1 The parameters for invocation and use of Order XVIII Rule 17, CPC, are thus well-established. It is not meant for a routine exercise. Nor it is a provision which can be employed on mere asking by a party, unless the court wants any clarification on any aspect of the evidence already led in the proceedings. Though the provision could be invoked at the instance of a party to the suit, basically and essentially it is the discretionary power to be exercised by the court itself. This provision can be put into play neither by the party nor by the court itself to permit to fill up the gaps, omissions or lacunae in the evidence.

2 It is not permissible that the evidence by a party already led and settled is allowed to be improved by reopening the evidence or recalling the witness under this Order of CPC. The provision is not a tool whereby a party can embellish the evidence, fill in the omissions therein or refine the evidence at a later stage.

3 Also, it is no valid yardstick to be employed for permitting reopening the evidence or allowing recalling of a witness that such a course would not prejudice any party. It is no valid ground for invoking the powers under Order XVIII Rule 17, CPC that a party to the proceedings will not be prejudiced. Not the absence of prejudice but an independent justification must exist before the court can legitimately take resort to Order XVIII Rule 17, CPC.

4 In Vadiraj Naggappa Vernekar (supra), the appellants sought to introduce the evidence by recalling of witnesses which were available at the time the affidavit of such witnesses were prepared. Neither new evidence was introduced nor new facts were discovered subsequently. The court stated that it was not a case for recalling of the witnesses."

Background

The bench was hearing an appeal filed against the Telangana High Court's order which in exercise of its revisionary jurisdiction had refused to interfere and modified the trial court's decision under Order XVIII Rule 17 CPC to re-open the PW-1 evidence, and permit his cross-examination at the fag end of the suit.

The High Court modified the trial court's decision to the extent that it directed the trial court to complete the entire exercise of recalling and reopening the evidence of PW-1 and marking of the said documents within a period of ten (10) days, and further directed to complete the cross- examination of PW-1 within one week.

Against this order of the High Court, an appeal was filed before the Supreme Court.

Decision

Setting aside the impugned order, the judgment authored by Justice Anjaria observed that the High Court fell in error in exceeding its jurisdiction to allow re-opening of the PW-1 evidence, ignoring the law that the provision can't be utilised for filling in the lacuna in the evidence, but to only seek a clarification for the better adjudication of the suit.

“…it was not permissible in law for the court to exercise the powers under Order XVIII Rule 17, CPC permitting the plaintiffs to recall their witnesses and reopen the evidence. The directions passed by the High Court per se did not fell within the purview and parameters of exercisable powers under Order XVIII Rule 17, CPC.”, the Court observed.

In terms of the aforesaid, the appeal was allowed.

Related : Order XVIII Rule 17 CPC | Power To Recall Witness Vests With Court, Parties Cannot Do Without Court's Leave : Supreme Court

Headnote

Code of Civil Procedure, 1908 — Order XVIII Rule 17 & Section 151 — Scope, Object, and Parameters for Recalling Witness / Reopening Evidence - Nature of Power - Power under Order XVIII Rule 17 CPC is a discretionary, facilitator power-cum discretion exclusively vested in the Court to enable it to clarify any doubt that may have arisen during the examination of a witness - Cannot be used to Fill Gaps or Lacunae: The power under Order XVIII Rule 17 CPC cannot be invoked by a party or by the Court to fill up gaps, omissions, or lacunae in evidence already led and closed, nor to allow a party to embellish, refine, or improve its case at a later stage - Exclusivity of Examination - Order XVIII Rule 17 CPC enables the Court to put questions to a recalled witness - it does not empower the Court to recall a witness for the purpose of further examination-in-chief or cross-examination by either party - "No Prejudice" Is Not a Valid Ground - Reopening evidence or recalling a witness cannot be permitted merely on the specious ground that doing so would not cause prejudice to the opposing side - Absence of prejudice is not a valid yardstick - an independent justification must exist before invoking Order XVIII Rule 17 CPC - Frequent resort to Order XVIII Rule 17 CPC, especially at the fag end of a suit when final arguments are underway, leads to an abuse of the court process, delays litigation, and cannot be allowed routinely or for the mere asking - Allowing the appeal, the Supreme Court held that the High Court and Trial Court erred in law - Noted that Order XVIII Rule 17 CPC is exclusively a discretionary tool for the Court to clarify doubts and cannot be invoked to permit a party to cure lacunae or fill gaps in evidence at the argument stage - held that the "lack of prejudice to the other side" is not a legal ground to grant such recall, and ordering cross-examination of a recalled witness under Order XVIII Rule 17 CPC is completely beyond the scope of the provision. [Relied on Vadiraj Naggappa Vernekar (Dead) through LRs v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410; Paras 5-8]

Cause Title: K. BHARATHAMMA VERSUS BANDARU SAKKU BAI AND OTHERS

Citation : 2026 LiveLaw (SC) 764

Click here to download judgment

Appearance:

Mr. C. Mukund, Adv. Mr. Bijoy Kumar Jain, AoR for the appellant

Mr. Mehmood Umar Faruqui, AoR for the respondents.