The Supreme Court has narrowed the ambit of Order XVIII Rule 17 of the Code of Civil Procedure, holding that the power to recall a witness or reopen evidence is a discretionary tool for the court to clarify doubts, not a mechanism for parties to fill gaps or to conduct fresh cross-examination after the trial has progressed.
Background & Facts
The Dispute
The dispute originated from Original Suit No. 489 of 2010 (renumbered as Original Suit No. 1302 of 2022) concerning ownership of several plots in Ghatkesar village, R.R. District. The plaintiffs sought declaration of ownership, nullity of sale deeds dated 21.05.1987 and 31.11.1987 executed by defendants Nos. 2 and 3 in favour of defendant No.1, and a perpetual injunction against interference.
Key Facts
- 21.05.1987 and 31.11.1987: Sale deeds executed by defendants Nos. 2 and 3 in favour of defendant No.1 for plots totalling 800 sq.yds.
- 21.11.1990: Decree of perpetual injunction passed in Original Suit No. 348 of 1988 in favour of defendant No.1, still operative.
- 2001: Writ Petition No. 23459 filed by defendant No.1 to enforce the 1990 injunction.
- 2010: Plaintiffs instituted the present suit for declaration of ownership and injunction.
- 2017: Defendant No.1 filed I.A. No.5 seeking appointment of an Advocate Commissioner to ascertain the existence of structures on the plots; the plaintiffs admitted no houses existed.
- 16.02.2018: Trial Court dismissed I.A. No.5 noting the admission that houses had collapsed in 2016 and no structure existed.
- 08.12.2022: Trial Court allowed three interim applications (I.A. No.716, 717, 718 of 2022) filed by plaintiffs seeking recall of PW-1, reopening of evidence, and production of documents.
- 15.09.2023: High Court modified the trial court orders, directing the court to complete recall and reopening within ten days and to allow cross-examination of PW-1 within one week, also imposing a cost of Rs.20,000 on the plaintiffs.
- 04.08.2026: Supreme Court delivered the judgment, setting aside the High Court order.
Procedural History
- 21.05.1987 & 31.11.1987: Sale deeds executed.
- 21.11.1990: Decree of perpetual injunction.
- 2001: Writ Petition No. 23459 filed.
- 2010: Plaintiffs filed Original Suit No. 489 of 2010.
- 2017: I.A. No.5 filed by defendant No.1.
- 16.02.2018: Trial Court dismissed I.A. No.5.
- 08.12.2022: Trial Court allowed I.A. Nos.716-718.
- 15.09.2023: High Court modified the orders, directing recall, reopening, and cross-examination, and imposing Rs.20,000 costs.
- 04.08.2026: Supreme Court set aside the High Court order and allowed the appeals.
The Parties' Positions
- Appellant (Defendant No.1): Contended that Order XVIII Rule 17 CPC is a discretionary power of the court, not a right of the parties, and cannot be used to fill gaps in evidence or to permit cross-examination after the trial stage.
- Respondents (Plaintiffs): Argued that the interim applications were necessary to clarify doubts regarding the existence of house numbers and to produce municipal documents, seeking the court’s power under Order XVIII Rule 17 CPC and Section 151 CPC.
Relief Sought
The appellant sought setting aside of the High Court’s modified directions and restoration of the trial court’s original orders, effectively preventing the recall of PW-1 and the reopening of evidence.
The Legal Issue
Whether Order XVIII Rule 17 of the Code of Civil Procedure, 1908 empowers a court to recall a witness or reopen evidence for the purpose of cross-examination or to fill gaps in the record after the evidence has been closed, and whether such power can be exercised at the instance of a party.
Arguments Presented
For the Appellant
- Submitted that the power under Order XVIII Rule 17 is a discretionary tool for the court to clarify doubts, not a procedural right of the parties.
- Cited Vadiraj Naggappa Vernekar (Dead) through LRs v. Sharadchandra Prabhakar Gogate, K.K. Velusamy v. N. Palanisamy, and Bagai Construction through Lalit Bagai v. Gupta Building Material Store to emphasize that the provision cannot be used to fill evidentiary lacunae.
- Emphasised that the Supreme Court has repeatedly held that the rule cannot be invoked merely because no prejudice is caused.
For the Respondent
- Asserted that the recall of PW-1 was necessary to obtain clarification on house numbers and to produce municipal documents, invoking the court’s power under Order XVIII Rule 17 and Section 151 CPC.
- Relied on Shubhkaran Singh v. Abhayraj Singh to argue that the court may recall a witness to obtain proper proof of relevant facts.
- Maintained that the interim applications were filed in good faith to prevent miscarriage of justice.
The Court's Analysis
The Court began by interpreting the literal wording of Order XVIII Rule 17 CPC, noting that it confers a discretionary power on the court to recall any witness and put questions to him at any stage of the suit. The Court stressed that discretion must be exercised sparingly and only when it is necessary to clarify doubts that have arisen during the trial.
“The settled legal position under Order 18 Rule 17 read with Section 151 CPC, being thus very clear, the impugned orders … is wholly impermissible in law.”
The Court then surveyed the jurisprudence. In Vadiraj Naggappa Vernekar, the Court held that the provision is not intended to fill omissions in the evidence already led. K.K. Velusamy clarified that after the deletion of Rule 17A, the power could be drawn from Section 151 CPC but only for procedural aspects not expressly provided for, not for reopening evidence.
Bagai Construction reiterated that the rule is not a mechanism for parties to embellish evidence. Shubhkaran Singh was distinguished because the recall there was for discovering proper proof, not for adding new material.
The Court further observed that the High Court’s direction to allow the parties to cross-examine PW-1 went beyond the scope of the rule. Citing Balkrishna Shivappa Shetty v. Mahesh Nenshi Bhakta, the Court noted that the rule does not empower parties to cross-examine a recalled witness; cross-examination remains the court’s prerogative.
The Court emphasized that the absence of prejudice cannot be a ground for invoking the rule. The power must be justified by an independent need for clarification, not by convenience or delay tactics. The Supreme Court highlighted that the plaintiffs’ interim applications were filed after the evidence had been closed and after final arguments, rendering them futile and an abuse of process.
Consequently, the Court concluded that the High Court’s modified directions exceeded the permissible parameters of Order XVIII Rule 17 CPC and were therefore illegal.
The Verdict
The Supreme Court set aside the High Court’s common order dated 15.09.2023, allowed the three civil appeals, and held that the interlocutory applications seeking recall of PW-1, reopening of evidence, and cross-examination are void. The directions to pay Rs.20,000 costs to the plaintiff were also struck down. No interlocutory applications survive.
What This Means For Similar Cases
Recall Power Is Discretionary, Not a Right
- Courts may recall a witness only to clarify doubts that arise during the trial.
- The power cannot be invoked at the mere request of a party without an independent justification.
Cannot Be Used to Reopen Closed Evidence
- Once evidence is closed and final arguments are underway, the rule cannot be employed to fill gaps or introduce new material.
- Applications seeking reopening must demonstrate a compelling need, not merely the absence of prejudice.
Cross-Examination Remains Court-Led
- Parties cannot cross-examine a recalled witness; any questioning is solely at the court’s discretion.
- The rule does not transform the court’s supervisory function into a procedural right for litigants.
Practical takeaways:
- Draft interim applications under Order XVIII Rule 17 with a clear factual basis showing a specific doubt.
- Avoid using the rule as a delay tactic; courts will scrutinise the necessity.
- Anticipate that any request for cross-examination of a recalled witness will be rejected.
