Parties cannot reopen evidence or recall witnesses under Order XVIII Rule 17 to fill gaps, Supreme Court rules

The respondents-plaintiffs instituted a suit in 2010 seeking declaration of ownership over the suit properties, declaration that certain sale deeds executed in favour of defendant No.1 were null and void, and a permanent injunction.

The appellant-defendant No.1 relied on registered sale deeds of 1987 and an earlier decree of perpetual injunction in her favour concerning the properties.

During the suit, the plaintiffs’ witnesses, including PW-1 to PW-4, were examined and documents Exhibits A1 to A35 were marked.

The plaintiffs had earlier admitted that the houses on the suit properties had collapsed during heavy rains and that no structures existed thereon; consequently, their application for appointment of an Advocate Commissioner was closed in 2018.

After the evidence had closed and final arguments had substantially progressed, the plaintiffs filed three interlocutory applications: one under Order XVIII Rule 17 CPC to recall PW-1 for marking documents, one under Section 151 CPC to reopen the evidence, and one under Order VII Rule 14 CPC to receive additional documents relating principally to house numbers and the alleged existence of the properties.

The Trial Court allowed the applications on the ground that no prejudice would be caused to the defendants.

The High Court modified the orders by directing recall and reopening of PW-1’s evidence, marking of the documents, completion of cross-examination within a stipulated period, and payment of costs of ₹20,000 by the plaintiffs.

The defendant challenged those directions before the Supreme Court.

1. Whether Order XVIII Rule 17 CPC could be invoked to recall PW-1 and reopen the plaintiffs’ evidence for producing additional documents and filling omissions in evidence already led?

2. Whether the absence of prejudice to the opposite party constituted sufficient justification for recalling a witness and reopening evidence at the stage of final arguments?

3. Whether Order XVIII Rule 17 CPC empowered the High Court to direct the defendant to cross-examine a witness recalled under that provision?

4. Whether the prayer under Order VII Rule 14 CPC for receiving documents could be sustained when it was interconnected with the impermissible reopening and recall of evidence?

Order XVIII Rule 17 CPC confers a discretionary power on the court to recall an already examined witness and put questions to that witness for clarification of doubts arising from the evidence; it is not intended to permit a party to conduct further examination-in-chief, introduce additional material, or cure omissions and lacunae.

The power must be exercised sparingly and only where an independent justification exists, not merely because no prejudice would be caused.

The Court relied on Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410; K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275; Bagai Construction v. Gupta Building Material Store, (2013) 14 SCC 1; Ram Rati v. Mange Ram, (2016) 11 SCC 296; and Gayathri v. M. Girish, (2016) 14 SCC 142.

Section 165 of the Evidence Act, 1872 reinforces that the power to question a witness for discovering or obtaining proof of relevant facts is primarily that of the Judge.

Order XVIII Rule 17 does not authorise recall of a witness for cross-examination by a party; the Court endorsed Balkrishna Shivappa Shetty v. Mahesh Nenshi Bhakta, AIR 2003 Bom 293, on this point.

The application to receive documents under Order VII Rule 14 CPC could not independently survive where it was inextricably connected with an impermissible reopening of evidence.

The Supreme Court found that the plaintiffs sought recall of PW-1 and reopening of evidence after the parties had completed their evidence and final arguments had substantially progressed.

The proposed documents concerning house numbers and the existence of structures were matters within the plaintiffs’ knowledge and could have been produced during the original evidence; they were not based on subsequently discovered facts.

Accordingly, the applications were aimed at improving the existing evidence and filling evidentiary gaps, rather than assisting the court in clarifying any doubt under Order XVIII Rule 17.

The earlier admission that no house or structure existed on the properties further demonstrated that recalling PW-1 for this purpose would not advance the adjudication.

The Trial Court and High Court incorrectly treated the absence of prejudice as sufficient justification, whereas the Rule required an independent and legally permissible basis.

Further, the High Court’s direction requiring the defendant to complete cross-examination exceeded the limited scope of Order XVIII Rule 17, which permits court-directed questioning and does not itself authorise recall for party-led cross-examination.

The “no prejudice” rationale was legally insufficient, and the direction requiring cross-examination under that provision was beyond jurisdiction.

The applications under Order VII Rule 14 CPC were also unsustainable because they were inseparably connected with the impermissible recall and reopening of evidence.

The common order dated 15 September 2023 of the Telangana High Court in Civil Revision Petition Nos. 458, 496 and 621 of 2023 was set aside, and the appeals were allowed.