Basic principles to be followed by court while allowing application for recall of witnesses

The respondent filed the application under Rule 17 read with

Section 151 of the 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.

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.

The settled legal position under Order 18 Rule 17 read with

Section 151 of the CPC, being thus very clear, the impugned orders

passed by the trial court as affirmed by the High Court to recall a

witness at the instance of the respondent “for further elaboration on

the left out points”, is wholly impermissible in law.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1684 OF 2016

(Arising from S.L.P. (C) No. 22141 of 2013)

RAM RATI 

V

MANGE RAM 

Dated:February 23, 2016.

Citation:(2016) 11 SCC 296

2. Whether a witness can be recalled under Order 18 Rule 17 of

The Code of Civil Procedure, 1908 (hereinafter referred to as ‘the

Code’) for further elaboration of aspects left out in evidence already

closed, is the issue for consideration in this case.

3. There are two suits filed by the respective parties and pending

before the Tis Hazari Courts at Delhi. Civil Suit No. 43 of 2009 was

filed by the respondents herein for declaration and injunction in

respect of the plaint schedule property. In respect of very same

property, the appellant herein also filed a suit seeking permanent

injunction and that suit has been numbered as Civil Suit No. 44 of

2009. The suits were consolidated for common trial, on joint request,

by order dated 08.12.2007. Suit No. 43 of 2009, with the consent of

the parties, was ordered to be tried in the court where Suit No. 44 of

2009 was pending by order dated 26.09.2005 of the District Judge,

Delhi. Much before that, evidence in Civil Suit No. 44 of 2009 had

commenced and the appellant herein had been examined as PW-1

and the respondents herein had cross-examined PW-1 as well. That

evidence was closed on 16.04.2005. After the consolidation of the

two suits, the respondents herein filed an application on 13.04.2010.

We shall extract the averments made in the said application as

under:

“APPLICATION ON BEHALF OF DEFENDANT FOR

DISCHARGING THE STATEMENT OF PW-1 AND

EXAMINATION OF WITNESS I.E. PW-1 AFRESH UNDER

ORDER 18 RULE 17 C.P.C. READ WITH SECTION 151

C.P.C.

Sir,

The applicant most respectfully submits as under:-

1. That the plaintiff examined PW-1, Sh. Chottu Ram

as PW1- on 6.12.2004. His cross examination was

concluded on 16.4.2005.

2. That this Hon’ble Court consolidated the present

suit with another suit titled as Mange Ram Vs. Chander

Kanta etc. vide its order dated 8.12.2007.

3. That while passing the order of consolidation

dated 8.12.2007, this Hon’ble Court ordered as under:-

“It has been so urged on behalf of both

contesting sides that trial in two cases be

conducted commonly and evidence led in either

case be read in both these cases.”

4. The directions or observations of this Hon’ble

Court as reproduced above operates prospectively and

not retrospectively.

5. That when the Hon’ble Court ordered that

evidence in one case may be read in evidence in

another case, then plaintiff in Mange Ram Vs. Chander

Kanta & Ors. would be deprived of the opportunity of

cross examination of PW-1 which was concluded on

16.4.2005, much prior to the date of order of

consolidation.

6. That as per settled position of law on this point

and as per terms of order of this Hon’ble Court dated

08.12.2007, either the PW-1 be examined afresh or

opportunity to cross examine the PW-1 may be granted

to the applicant/plaintiff in Mange Ram Vs. Chander

Kanta & Ors.

It is, therefore, prayed that PW-1 may kindly be

examined afresh or opportunity to cross examine the

PW-1 in Ram Rati Vs. Mange Ram etc. may kindly be

granted to the applicant.”

4. By order dated 15.04.2008 of the Additional District Judge,

Delhi in Civil Suit No. 43 of 2009 filed by the respondents, the suit as

against Defendant Nos. 5 and 6 was rejected and it was held that

the plaint did not disclose any cause of action against them.

Defendant No. 5 was the plaintiff in Suit No. 44 of 2009 and

Defendant No. 6 is her husband. That Defendant No. 5 is the

applicant before this Court.

5. Thus, the only ground taken up in the application filed under

Order 18 Rule 17 of the CPC is that after consolidation of the suits,

the plaintiff in Civil Suit No. 43 of 2009 should get an opportunity to

cross-examine the PW-1 (Defendant No. 5 in Civil suit No. 43 of

2009).

6. It is interesting to note that in the order dated 24.02.2010

passed by the Additional District Judge in Civil Suit No. 44 of 2009, it

has been observed by the Court that the plaintiff in Civil Suit No. 44

of 2009 is no more a party to Civil Suit No. 43 of 2009 and the

earlier order of consolidation of suits dated 08.12.2007 was

maintained, further clarifying that the past evidence of plaintiff in

Civil Suit No. 44 of 2009, which has already been recorded, to be

treated as the main suit.

7. We shall extract the order dated 24.02.2010, which reads as

follows:

“Since the facts in this suit and suit No. 43/09 are

intertwined even though Plaintiff is no more a party to

suit No. 43/09, her claim for declaration to suit property

therein may have reflection on the entitlement of

Plaintiff, therefore, with the consent of both sides, the

consolidation order dated 8.12.2007 is being

maintained and suit No. 44/09 where past evidence of

Plaintiff Ram Rati has been recorded is treated as main

suit.”

8. But it has to be noted that the Suit No. 43 of 2009 stands

rejected against that PW-1 (Defendant No.5). Not only that, being a

defendant in Suit No. 44 of 2009, PW-1 had been cross-examined

also by the respondent herein. What is lost, if at all it can be termed

so, is the opportunity to cross-examine in the capacity as plaintiff in

O.S. No. 43 of 2009. But that suit, as noted above, had already been

rejected as against PW-1 (Defendant No. 5), appellant herein.

Unfortunately, both the courts have taken the view that the

examination of PW-1 in Suit No. 44 of 2009 having taken place prior

to consolidation, the plaintiff in Suit No. 43 of 2009 did not get an

opportunity to cross-examine him.

9. The trial court, by order dated 18.12.2010, allowed the

application filed by the respondent … “for further elaboration on the

left out points by the parties…”. The High Court, in the impugned

order, endorsed the view taken by the trial court, holding that

… “reading the impugned order shows that the witness has been

recalled, if available for further elaboration on the left out points to

both the parties”. Since, the High Court and trial court have taken a

wholly wrong approach in the matter and against the settled

principles of law, it has become necessary for us to restate the law

as well.

10. Order 18 of CPC deals with hearing of the suit and examination

of witnesses. By an amendment introduced thereunder with effect

from 01.02.1977, Rule 17A was introduced permitting production of

evidence not previously known or which could not be produced

despite due diligence. It appears, the amendment only caused

unnecessary protraction of the litigation, and hence, the said

provision was omitted by The Code of Civil Procedure (Amendment)

Act, 1999 with effect from 01.07.2002. However, Rule 17 was

retained which reads as follows:

“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.”

11. The respondent filed the application under Rule 17 read with

Section 151 of the 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.

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 (Dead) Through LRs. v.

Sharadchandra Prabhakar Gogate1

, this principle has been

summarized at paragraphs- 25, 28 and 29:

“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

1

(2009) 4 SCC 410

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 to the suit, but as

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.”

13. In K.K. Velusamy v. N. Palanisamy2

, the principles

enunciated in Vadiraj (supra) have been followed, holding at

paragraphs- 9 and 10:

“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 been examined. (Vide

Vadiraj Naggappa Vernekar v. Sharadchandra

Prabhakar Gogate.)

10. Order 18 Rule 17 of the Code is not a provision

intended to enable the parties to recall any witnesses

for their further examination-in-chief or

cross-examination or to place additional material or

evidence which could not be produced when the

2

(2011) 11 SCC 275 

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 is recalled for purposes of such clarification, it

may, of course, permit the parties to assist it by putting

some questions.”

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 (supra) at paragraph-11,

which reads as follows:

“11. There is no specific provision in the Code

enabling the parties to reopen the evidence for the

purpose of further examination-in-chief or

cross-examination. 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 for

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.”

15. After surveying the various principles stated by this Court on

Section 151 from 1961, in K.K. Velusamy (supra), they have been

succinctly summarized as follows under paragraph-12:

“xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx

a) Section 151 is not a substantive provision which

creates or confers any power or jurisdiction on courts. It

merely recognises the discretionary power inherent in

every court as a necessary corollary for rendering

justice in accordance with law, to do what is “right” and

undo what is “wrong”, that is, to do all things necessary

to secure the ends of justice and prevent abuse of its

process.

(b) As the provisions of the Code are not exhaustive,

Section 151 recognises and confirms that if the Code

does not expressly or impliedly cover any particular

procedural aspect, the inherent power can be used to

deal with such situation or aspect, if the ends of justice

warrant it. The breadth of such power is coextensive

with the need to exercise such power on the facts and

circumstances.

(c) A court has no power to do that which is

prohibited by law or the Code, by purported exercise of

its inherent powers. If the Code contains provisions

dealing with a particular topic or aspect, and such

provisions either expressly or by necessary implication

exhaust the scope of the power of the court or the

jurisdiction that may be exercised in relation to that

matter, the inherent power cannot be invoked in order

to cut across the powers conferred by the Code or in a

manner inconsistent with such provisions. In other

words the court cannot make use of the special

provisions of Section 151 of the Code, where the

remedy or procedure is provided in the Code.

(d) The inherent powers of the court being

complementary to the powers specifically conferred, a

court is free to exercise them for the purposes

mentioned in Section 151 of the Code when the matter

is not covered by any specific provision in the Code and

the exercise of those powers would not in any way be in

conflict with what has been expressly provided in the

Code or be against the intention of the legislature.

(e) While exercising the inherent power, the court

will be doubly cautious, as there is no legislative

guidance to deal with the procedural situation and the

exercise of power depends upon the discretion and

wisdom of the court, and in the facts and circumstances

of the case. The absence of an express provision in the

Code and the recognition and saving of the inherent

power of a court, should not however be treated as a

carte blanche to grant any relief.

(f) The power under Section 151 will have to be used

with circumspection and care, only where it is

absolutely necessary, when there is no provision in the

Code governing the matter, when the bona fides of the

applicant cannot be doubted, when such exercise is to

meet the ends of justice and to prevent abuse of

process of court.”

16. Some good guidance on invocation of Section 151 of the CPC to

reopen an evidence or production of fresh evidence is also available

in K.K. Velusamy (supra). To quote paragraph-14:

“14. The amended provisions of the Code

contemplate and expect a trial court to hear the

arguments immediately after the completion of

evidence and then proceed to judgment. Therefore, it

was unnecessary to have an express provision for

reopening the evidence to examine a fresh witness or

for recalling any witness for further examination. But if

there is a time gap between the completion of evidence

and hearing of the arguments, for whatsoever reason,

and if in that interregnum, a party comes across some

evidence which he could not lay his hands on earlier, or

some evidence in regard to the conduct or action of the

other party comes into existence, the court may in

exercise of its inherent power under Section 151 of the

Code, permit the production of such evidence if it is

relevant and necessary in the interest of justice, subject

to such terms as the court may deem fit to impose.”

17. Vadiraj (supra) and K.K. Velusamy (supra) have also found

affirmation by this Court in Bagai Construction Through its

Proprietor Lalit Bagai v. Gupta Building Material Store3

.

18. The settled legal position under Order 18 Rule 17 read with

Section 151 of the CPC, being thus very clear, the impugned orders

passed by the trial court as affirmed by the High Court to recall a

witness at the instance of the respondent “for further elaboration on

the left out points”, is wholly impermissible in law.

19. In the above circumstances, the impugned order is set aside

and the appeal is allowed.

20. We are informed that during the pendency of the appeal, the

evidence has been closed and what remains is only the final

arguments. In view of the above, we direct the trial court to dispose

of the suits expeditiously and preferably within one moth from the

date of receipt of a copy of this order.

3

(2013) 14 SCC 1

21. There shall be no order as to costs.

……………..……………………J.

 (KURIAN JOSEPH)

……………..……………………J.

 (ROHINTON FALI NARIMAN)

New Delhi;

February 23, 2016.