K. Bharathamma vs Bandaru Sakku Bai
- Court
- Supreme Court
REPORTABLE
2026 INSC 795
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS._____ OF 2026
(Arising out of SLP (C) Nos. 2744-2746 of 2024)
K. BHARATHAMMA …APPELLANT
VERSUS
BANDARU SAKKU BAI
AND OTHERS …RESPONDENTS
J U D G M E N T
N.V. ANJARIA, J.
Leave granted.
2. In the present three appeals, the challenge is
directed against common order dated 15.09.2023 of the
1
High Court for the State of Telangana at Hyderabad ,
whereby the High Court disposed of three Civil Revision
Petitions filed by the defendant No.1-appellant herein, in
the proceedings of Original Civil Suit No. 489 of 2010,
renumbered as Original Suit No. 1302 of 2022, before
Signature Not Verified
Digitally signed by
SNEHA DAS
Date: 2026.08.04
17:22:24 IST
Reason:
1
Hereinafter, “High Court”
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 1 of 23
learned Additional Senior Civil Judge, Medchal-Malkajgiri
2
District .
2.1 The three Revision Petition Nos. 458 of 2023, 496 of
2023 and 621 of 2023 arose out of the orders, all dated
08.12.2022, passed by the Trial Court in Interim
3
Application No. 716 of 2022, I.A. No.717 of 2022 and I.A.
No.718 of 2022, filed by the original plaintiffs-respondents
herein. I.A. No.716 of 2022 was an application under Order
4
XVIII Rule 17, Code of Civil Procedure, 1908 seeking to
recall PW-1 for marking document in the evidence, whereas
I.A. No.717 of 2022 and I.A. No.718 of 2022 were filed
under Section 151, CPC and under Order VII Rule 14, CPC
respectively praying to reopen the plaintiffs’ evidence and
to receive documents as per the list of documents,
respectively.
2.2 The Trial Court allowed the interim applications by
order dated 08.12.2022. When the appellant-original
defendant No.1 challenged the said orders of the Trial
2
Hereinafter, “Trial Court”
3
Hereinafter, “I.A.”
4
Hereinafter, “CPC”
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 2 of 23
Court, the High Court disposed of all the three revision
petitions by modifying the orders dated 08.12.2022 passed
in three interim applications by inter-alia directing the Trial
Court to complete the exercise of recalling PW-1 and reopen
the evidence of PW-1 and further to mark the documents
within stipulated time. Appellant-defendant No.1 was
directed to complete the process within the time indicated.
The applicants of the interim applications were asked to
pay the cost of Rs.20,000/- to the respondents.
3. Before adverting to the pleadings in the Interim
Applications and the prayers made therein, in order to have
the proper context, the facts relating to the suit may be set
out. By instituting the suit in the year 2010, the plaintiffs-
respondents herein prayed for declaration that they were
the absolute owners of the suit properties mentioned in
Schedules A, B and C of the plaint bearing House No.11-
71/2 (new), Old No.8-5, admeasuring 400 sq.yds., No.11-
71/3 (new), Old No.5-48, admeasuring 200 sq.yds. and 11-
71/4 (new) and Old No.8-68, admeasuring 200 sq.yds. in
Survey No.433 to 438 and 448 to 452, situated at
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 3 of 23
Ghatkesar village and Mandal, R.R. District. It was further
prayed to declare that the sale deeds dated 21.05.1987 and
31.11.1987, executed by defendant Nos. 2 and 3 in favour
of defendant No. 1 in respect of the land to the extent of 400
square yards, were null and void. It was next prayed to
perpetually injunct the defendants and their men from
interfering with the possession of the plaintiffs in respect of
the suit properties.
3.1 The case of the appellant herein who is defendant
No.1 in the suit has been, inter-alia , that the appellant
purchased Plot Nos.7 and 8 by way of two registered sale
deeds in the year 1987 as stated above. It was the case that
the appellant has been in uninterrupted possession of the
suit properties for more than last 23 years. It appears that
the appellant had also filed Original Suit No.348 of 1988
against the plaintiffs in the Court of Principal District
Munsif, R.R. District, wherein the decree of perpetual
injunction dated 21.11.1990 was passed against the
plaintiffs, in operation till date. In view of the decree in
favour, the appellant obtained a sanction to construct
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 4 of 23
compound wall, two rooms and a bathroom on the said
property. Pursuant to the permission granted by the Gram
Panchayat, the construction was stated to have been
carried out. Writ Petition No.23459 of 2001 came to be filed
by the appellant against the plaintiffs seeking to implement
the aforementioned decree for injunction dated 21.11.1990.
The competent police authority was directed by the court to
implement the injunction decree.
3.2 The respondents-original plaintiffs thereafter filed
the instant proceedings of Original Suit No.489 of 2010
(New No.1302 of 2022) for the relief of declaration etc. as
mentioned above. In the written statement, the appellant-
defendant No.1 pleaded that he was a bona fide purchaser
and further he had purchased two plots by two registered
sale deeds, that they were accordingly the lawful owners in
possession thereof and that at no point of time had raised
any dispute in respect of the title of the appellant over the
said plots.
3.3 The plaintiffs put forward the claim that they had
been residing in the suit properties from 1970 onwards. The
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 5 of 23
appellant-defendant No.1 denied the existence of any house
property and also denied the alleged door numbers. The
appellant-defendant No.1 filed I.A. No.5 of 2017 seeking to
appoint an Advocate Commissioner to ascertain the status,
to inspect external features of the suit properties, which,
however, was opposed by the plaintiffs by filing counter
affidavit.
3.4 In course of the proceedings, the plaintiffs admitted
that no house existed on the properties in question. Based
on the above admission of the plaintiffs, the Trial Court did
not entertain I.A. No.5 of 2017. Docket Order dated
16.02.2018 was passed by the Trial Court to dispose of I.A.
No.5 of 2017. The order reads as under,
“Heard, both sides. The respondent filed counter. In
the counter para No.5, the respondent admitted
that the houses were collapsed in the heavy rents
of 2016. Hence, there is no house existing in the
plaint schedule property. When the respondent
admits that there is no structure existing in the suit
schedule property. Nothing needs to be observed by
the advocate commissioner in the suit schedule
land. Hence, I feed nothing can be added by appoint
advocate commissioner. Hence, the petition is
closed. No costs.”
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 6 of 23
3.5 The suit proceedings progressed, recording of
evidence of both the sides was completed and at the stage
when final arguments were heard before the court and the
arguments of the side of the appellant were concluded, the
respondents preferred the aforesaid three Interim
Applications being I.A. No.716 of 2022, I.A. No.717 of 2022
and I.A. No. 718 of 2022. Thereunder, the plaintiffs sought
to reopen the evidence for leading further evidence which
was the prayer in first two interim applications whereas the
prayer in I.A. No.718 of 2022 was to receive the documents
in the proceedings as per the list by condoning delay.
3.6 The pleadings and the grounds in support of the
prayers in the three applications were almost identical and
travelled parallel. What was pleaded was inter-alia that
while arguing the case, the defendant raised new pleas
which were not found in the written statement and the
evidence, in particular with regard to existence of houses
on the suit properties along with the house numbers. It was
further stated that the plaintiffs-applicants had filed
number of documents, however, further documents with
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 7 of 23
regard to the existence of the house numbers were to be
filed as per the legal advice, and that certain documents
relating to the house showing its existence were originally
received by the Gram Panchayat, which later came to be
converted into Municipality.
3.7 The plaintiffs-applicants wanted the documents
relating to the house number of the subject matter
properties made available by the Municipality, documents
relating to District Panchayat Officer dated 18.07.2018 as
well as demand register for the years 2017 and 2018. It was
prayed that in view of such circumstances, the evidence of
plaintiffs may be permitted to be reopened.
3.8 The Trial Court allowed all the three applications by
separate orders dated 08.12.2022 with similar and
identical reasoning. The Trial Court noted that the issues
were settled, that both the parties had adduced their
evidence and further that on behalf of the plaintiffs,
Witness Nos.1 to 4 were examined and that Exhibits A1 to
A35 were marked. The Trial Court further observed that
PW-1 had failed to produce certain documents showing
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 8 of 23
house numbers of the properties. It was observed that
though it was at the fag end of the suit, however, since no
prejudice would be caused to the respondents if the prayers
were allowed, the evidence of PW-1 was permitted to be
reopened.
3.9 The High Court modified the orders passed by the
Trial Court in the said three interim applications. The High
Court passed the following modified directions, essentially
exercising powers under Order XVIII Rule 17, CPC,
“a. The Court below is directed 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 from the
date of receipt of a copy of this order.
b. The petitioner herein is directed to complete the
cross- examination of PW-1 within one week
thereafter.
c. The respondent Nos. 1 to 10 herein who are the
petitioners in the underlying interlocutory
applications i.e., I.A. No.716 of 2022, I.A. No. 717
of 2022 and I.A. No.718 of 2022, are directed to pay
Rs.20,000/- to the petitioner herein towards costs.”
4. Heard learned counsel Mr. C. Mukund along with
learned advocate on record Mr. Bijoy Kumar Jain for the
appellant and learned advocate on record Mr. Mehmood
Umar Faruqui for the respondents.
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 9 of 23
5. In passing the impugned modified directions, the
High Court has essentially invoked the provision of Order
XVIII Rule 17, CPC. The provision reads as under,
“Order XVIII
Hearing of the Suit and Examination of Witnesses
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.”
5.1 A bare reading of the aforesaid provision makes it
obvious that the right under the Rule to put a question at
any stage of the suit or recall any witness for that purpose
is given to the court. The court can put questions to the
witness. No cross-examination is ordinarily open without
leave on the answers to the questions put by the Judge. The
scheme and object of the provision suggest that the power
to recall a witness is in the realm of discretion of the court.
5.2 In Vadiraj Naggappa Vernekar (Dead) through
5
LRs vs. Sharadchandra Prabhakar Gogate , this Court
highlighted the matters to be considered for invoking the
5
(2009) 4 SCC 410
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 10 of 23
provision and inter-alia observed that the power under the
provision of Order XVIII Rule 17, CPC can be invoked to
enable the court to clarify any doubt that may have arisen
in course of the examination of a witness. A witness may be
recalled by the court on its own motion or on an application
by any party to the suit.
5.3 The ambit of Order XVIII Rule 17, CPC, after
deletion of Rule 17A with effect from 01.07.2002 came to
6
be explained in K.K. Velusamy vs. N. Palanisamy . Rule
17A of Order XVIII, CPC, as then existed, expressly
provided for and permitted the reopening of the evidence
and recalling of a witness for further examination or cross-
examination. Observing inter-alia that after deletion of Rule
17A of Order XVIII, CPC, such power could be drawn from
Section 151, CPC, however, to be exercised to deal with any
particular procedural aspect not expressly or impliedly
provided for in the CPC.
5.4 In Bagai Construction through its Proprietor
7
Lalit Bagai vs. Gupta Building Material Store , this Court
6
(2011) 11 SCC 275
7
(2013) 14 SCC 1
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 11 of 23
observed that 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.
5.5 Several decisions of this court including K.K.
Velusamy (supra) and Vadiraj Naggappa Vernekar (supra)
have consistently laid down that Order XVIII Rule 17, CPC
is not to be utilised to permit a party to fill up lacunae in
the evidence. In Vadiraj Naggappa Vernekar (supra), this
Court stated thus,
“The said provisions are not intended to be used to
fill up omissions in the evidence of a witness who
has already been examined.”
(Para 25)
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 12 of 23
5.6 In Shubhkaran Singh vs. Abhayraj Singh and
8
Others , the court stated that the power under this
provision should not be exercised by the court lightly. The
rule is that the power which is in nature of discretion
should be used sparingly and in exceptional cases. The
court read the provision of Order XVIII Rule 17, CPC, along
with Section 165 of the Evidence Act, 1872 which provides
that a Judge may, in order to discover or obtain proper
proof of relevant facts, ask any question he may think fit
in any form at any time to any witness.
5.6.1 As per Section 165 of the Evidence Act, the parties
cannot raise any objection to any such question which may
be put by any Judge, nor can cross-examine any witness
upon any answer given in reply to any question asked by
the Judge, without the leave of the court. It was observed
that when the provision of Order XVIII Rule 17, CPC is
considered along with the provisions of Section 165 of the
Evidence Act, what is suggested is that the power to recall
8
2025 SCC OnLine SC 1028
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 13 of 23
and re-examine the witness is exclusively that of the court
trying the suit.
5.7 A frequent resort to use of Order XVIII Rule 17,
CPC, has the tendency to develop into an abuse of process
of the court and procrastination of litigation. The court
should not allow this provision to become a handy tool for
a party to the suit proceedings to prolong the litigation.
This aspect was highlighted by this Court in Gayathri vs.
9
M. Girish , in which the court emphasized on completion
of trial within a time schedule, observing that the
interlocutory applications containing prayers for reopening
of the evidence and recalling of witnesses have to be
considered only in compelling facts and on acceptable
reasons.
5.7.1 It was therefore observed in K.K. Velusamy (supra)
that the power under Order XVIII Rule 17, CPC as also
under Section 151, CPC, is not intended to be used in a
routine manner and merely for askance. If permitted to be
9
(2016) 14 SCC 142
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 14 of 23
so used, it would defeat the very purpose of expediting the
trial, in addition that a dishonest litigant would gain undue
advantage by prolonging the proceedings under the pretext
of recalling of witnesses or reopening of evidence.
5.8 It is laid down as trite principle that the provision
of Order XVIII Rule 17, CPC, cannot be invoked on the
spacious ground that recalling the witness or reopening the
evidence would not prejudice the other side. In Vadiraj
Naggappa Vernekar (supra), the court observed thus,
“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.”
(Para 28)
5.9 This Court in Ram Rati v. Mange Ram (Dead)
10
through Legal Representatives and Others ,
reemphasized that the power under this Rule cannot be
invoked to fill up the gaps in the evidence already led or on
the ground that no prejudice would be caused to the parties
10
(2016) 11 SCC 296
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 15 of 23
thereby. In the said case, this Court took the exception to
the order of the trial court, where the trial court exercised
the powers on the consideration that recalling of witness
was necessary for left out points.
5.9.1 The Court observed thus,
“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 the
instance of the respondent “for further elaboration
on the left out points”, is wholly impermissible in
law.”
(Para 18)
6. Summing up on the scope, nature and applicability
of the provision of Order XVIII Rule 17, CPC, on the basis
of the provisions of law laid down in the judicial decisions
highlighted above, this provision is in the nature of power-
cum-discretion vested in the court. It aims to become an
aid to the court in the adjudicating process of the suit. The
provision is in the nature of a facilitator to the court in the
suit proceedings, to be used and invoked within the
discipline of the trial and within the bounds of the rules of
evidence.
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 16 of 23
6.1 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.
6.2 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.
6.3 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.
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 17 of 23
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.
6.4 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.
6.5 The following observations made in Vadiraj
Naggappa Vernekar (supra) stand close to the facts and
circumstances of the present case,
“As indicated by the learned Single Judge, the
evidence now being sought to be introduced by
recalling the witness in question, was available at
the time when the affidavit of evidence of the
witness was prepared and affirmed. It is not as if
certain new facts have been discovered
subsequently which were not within the knowledge
of the applicant when the affidavit evidence was
prepared.”
(Para 26)
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 18 of 23
7. The facts in the instant case show that when the
plaintiffs filed interim applications for reopening the
evidence and recalling witnesses under Order XVIII Rule
17, CPC, the issues in the suit were settled and after
closure of the evidence, the final arguments had travelled
beyond half-way. Apart this aspect, what becomes
important is that on behalf of the plaintiffs, PW-1 to PW-4
were already examined and Exhibits A1 to A35 were
marked. Questions were put to PW-1 during cross-
examination about house numbers of the suit properties
and what was pleaded by the plaintiffs that there were
some admissions about failure of PW-1 in filing certain
documents showing the house numbers and that they had
not filed such documents. It was further stated that PW-3
and PW-4 who were also examined and that all the
witnesses on the side of the plaintiffs had denied the
suggestion that the properties with the house numbers
were not in existence.
7.1 The above position obtained had the backdrop of
plaintiffs’ filing I.A. No. 5 of 2017 seeking to appoint
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 19 of 23
Advocate Commissioner to ascertain the existence of
properties. However, by Docket Order dated 16.02.2018
aforementioned, the said interim application was closed by
noting the admission of the respondents that the houses
were collapsed during heavy rains in the year 2016 and
that no house mentioned as scheduled property existed
and that there was no structure. Therefore, permitting to
reopen the evidence of the plaintiffs and recalling PW-1 for
the purposes like house numbers etc. was not to serve any
purpose. The interim application under Order XVIII Rule
17, CPC were apparently filed as a delaying tactics and was
destined to be a futile exercise.
7.2 In any case and in any view, 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.
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 20 of 23
7.3 The direction in ‘b’ passed in the impugned order
by the High Court is to complete the cross-examination of
PW-1 within stipulated time. Indeed, this direction is
completely beyond the scope of Order XVIII Rule 17, CPC.
The Bombay High Court in Balkrishna Shivappa Shetty
11
vs. Mahesh Nenshi Bhakta and Others , was more
specific in making a statement of law in paragraph 5 of the
judgment to observe that Order XVIII Rule 17, CPC does
not permit a party to cross-examine a witness. The position
is akin to one obtained in the facts of the case.
7.3.1
This Court endorses to the following observations
made by the Bombay High Court in that regard in
Balkrishna Shivappa Shetty (supra),
“…The said provision of law apparently does not
deal with the subject of allowing the parties to
cross-examine the witness after such witness being
recalled in exercise of powers thereunder. In other
words, the provisions contained in Order 18, Rule
17 of the Code do not empower the Court to recall
the witness for the purpose of cross-examination by
either of the parties though it does permit recall of
witnesses for the purpose of examination by the
Court itself…”
(Para 5)
11
AIR 2003 Bom 293
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 21 of 23
7.4 It became evident that the plaintiffs, by filing
interim applications under Order XVIII Rule 17, CPC for
recalling witnesses and seeking to produce documents
under Order VII Rule 14, CPC read with Section 151, CPC,
admitted, and wanted to, fill up the gaps in the evidence
which was already led and closed, utilising the provision
for curing the lacunae, which was not permissible.
7.5 The frontline reasoning which pervaded the orders
passed by the Trial Court allowing three interim
applications was that no prejudice would be caused to any
party if the plaintiffs were permitted to recall the witnesses
and the evidence is reopened. This premise, as stated
above, could not have been the ground to invoke the
provision of Order XVIII Rule 17, CPC. The theory of “no
prejudice” cannot be conveniently applied to justify
invocation of the provision of Order XVIII Rule 17, CPC.
8. While the orders passed by the Trial Court and
modified by the High Court, in their directions are mainly
referable to the exercise of powers under Order XVIII Rule
17, CPC, the prayer seeking to receive the documents was
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 22 of 23
under Order VII Rule 14, CPC. This prayer was inextricably
interwoven with the prayers under Order XVIII Rule 17,
CPC. The directions in their totality, thus suffer from vices
of illegality as above.
9. In view of the discussion above and the reasons
supplied, the impugned order of the High Court and the
directions issued therein are not sustainable in law.
10. Resultantly, the impugned common order dated
15.09.2023 passed by the High Court for the State of
Telangana at Hyderabad in Civil Revision Petition Nos.458 of
2023, 496 of 2023 and 621 of 2023, is hereby set aside. The
appeals are allowed.
The interlocutory applications, if any, shall not survive in
view of the disposal of the appeals as above.
..…………………………..,J.
[S.V.N. BHATTI]
……………………………..,J.
[N.V. ANJARIA]
NEW DELHI;
August 04, 2026.
Civil Appeals @ SLP (C) Nos.2744-2746 of 2024 Page 23 of 23