The Madhya Pradesh High Court has clarified that a plaintiff may be permitted to recall a witness under Order XVIII Rule 17 of the CPC when a new issue - such as limitation - is framed after the plaintiff’s evidence has been closed, provided the issue arises due to a subsequent amendment by the defendant. This ruling reinforces procedural equity in civil litigation and curbs rigid application of precedent that may prejudice a party’s right to present relevant evidence.
Background & Facts
The Dispute
The petitioner, Subodh Kumar, filed a suit for recovery of Rs. 34,73,996/- against his elder brother, the respondent Pramod Kumar, alleging that the respondent sold a jointly owned immovable property under a power of attorney and failed to remit the petitioner’s share of the sale proceeds. The suit was instituted on 06.03.2024.
Key Facts
- The petitioner claimed ownership of a 50% share in the property, which was sold by the respondent in 2023
- The sale deed was executed on 12.11.2023, with consideration of Rs. 69,47,992/-
- The petitioner’s share of Rs. 34,73,996/- was not paid despite repeated demands
- The respondent filed a written statement denying liability and later sought amendment to raise the plea of limitation
- The petitioner’s evidence was closed on 09.01.2026
Procedural History
- 06.03.2024: Suit filed before the Court of First Civil Judge (Junior Division), Karera, District Shivpuri
- 09.01.2026: Petitioner closed his evidence
- 01.04.2026: Respondent’s application for amendment in written statement allowed, introducing plea of limitation
- 09.04.2026: Additional issue on limitation framed by the trial court
- 13.04.2026: Petitioner permitted consequential amendment in plaint to address limitation
- 17.04.2026: Application under Order XVIII Rule 17 CPC for recall of plaintiff rejected by trial court
- 22.06.2026: Writ petition filed before the High Court of Madhya Pradesh at Gwalior
Relief Sought
The petitioner sought setting aside of the order dated 17.04.2026 rejecting his application under Order XVIII Rule 17 CPC, and permission to recall himself for examination on the newly framed issue of limitation.
The Legal Issue
The central question was whether Order XVIII Rule 17 of the CPC permits the recall of a plaintiff to adduce evidence on a new issue of limitation that was framed after the plaintiff’s evidence had been closed, particularly when the issue arose due to an amendment introduced by the defendant.
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that the issue of limitation, being a mixed question of fact and law, was framed only on 09.04.2026 - after the plaintiff’s evidence was closed on 09.01.2026. The amendment in the written statement was introduced by the respondent, and the petitioner had no opportunity to address it earlier. Reliance was placed on the principle of natural justice and the need to ensure a fair trial. The judgment in K.K. Velusamy v. N. Palanisamy was distinguished on grounds that it dealt with attempts to fill lacunae in existing evidence, not to address entirely new issues.
For the Respondent
The respondent’s counsel contended that once evidence is closed, the court’s power under Order XVIII Rule 17 CPC must be exercised sparingly. Reliance was placed on Shubhkaran Singh v. Abhayraj Singh, where the Supreme Court held that recall of witnesses should not be permitted routinely to fill evidentiary gaps. It was further argued that paragraph 9 of the plaintiff’s deposition already touched upon limitation, rendering further evidence unnecessary.
The Court's Analysis
The Court examined the sequence of events and found that the issue of limitation was not part of the original pleadings but was introduced only after the respondent’s amendment was allowed on 01.04.2026. The trial court framed the issue on 09.04.2026, nearly three months after the plaintiff’s evidence was closed. The Court emphasized that the plaintiff could not have anticipated or addressed this issue prior to its framing.
"The question of limitation being a mixed question of fact and law and the issue in that regard having been framed subsequently, the petitioner/plaintiff had no opportunity to adduce evidence on the said aspect prior thereto."
The Court rejected the respondent’s argument that paragraph 9 of the deposition addressed limitation, noting that a perusal of Annexure P/4 showed no such admission or factual assertion on limitation. The Court further observed that the defendant’s evidence had not yet commenced, meaning the trial was still in its early stages.
The Court held that K.K. Velusamy was inapplicable because it concerned attempts to cure deficiencies in evidence already led, whereas this case involved a new issue introduced after evidence closure. The Court distinguished Shubhkaran Singh on the basis that it did not involve a situation where the court itself framed a new issue post-evidence closure at the instance of the defendant.
The Court concluded that denying the recall would violate the principles of fair trial and natural justice, as the plaintiff was deprived of a meaningful opportunity to meet a new legal challenge introduced by the defendant.
The Verdict
The petition was allowed. The impugned order dated 17.04.2026 rejecting the application under Order XVIII Rule 17 CPC was set aside. The trial court was directed to permit the petitioner to recall himself for examination confined solely to the issue of limitation. The trial shall proceed thereafter in accordance with law, with the defendant’s evidence to follow.
What This Means For Similar Cases
New Issues Framed Post-Evidence Require Recourse to Order XVIII Rule 17
- Practitioners must immediately file applications under Order XVIII Rule 17 CPC whenever a new issue is framed after evidence closure, especially if introduced by the defendant
- The burden shifts to the respondent to show that the new issue was foreseeable or already addressed in prior pleadings
- Courts must distinguish between filling lacunae and addressing entirely new legal contentions
Limitation as a Mixed Question Demands Fact-Based Evidence
- Courts cannot assume that general allegations in deposition suffice to cover specific limitation defenses
- Plaintiffs must be given a fair chance to prove facts supporting the accrual of cause of action, especially where limitation is contested
- The timing of amendment and framing of issues is critical - delayed framing triggers procedural safeguards
Procedural Fairness Trumps Rigid Application of Precedent
- K.K. Velusamy does not bar recall when the new issue arises from judicial framing post-evidence
- The court’s discretion under Order XVIII Rule 17 CPC must be exercised liberally to ensure justice, not to enforce technical compliance
- Delayed amendment by the defendant cannot be used to deprive the plaintiff of a fair opportunity to respond
