Re-recording examination-in-chief is permissible to cure procedural irregularity where cross-examination preceded it.

The respondent/plaintiff instituted a suit for recovery of possession of medical equipment valued at approximately ₹17,36,738, allegedly given to the petitioner/defendant on rent at ₹5,000 per day.

Seven issues were framed on 6 March 2019, and a Local Commissioner was appointed to record evidence.

Although PW-1 and PW-2 had not had their examination-in-chief recorded, they were partially cross-examined on 30 May and 3 June 2019.

The second Local Commissioner confirmed that the examination-in-chief of PW-1 and PW-2 had not been recorded and that documents had not been tendered before cross-examination.

The trial court allowed an application under Section 151 CPC for re-tendering PW-1’s evidence on 26 September 2024.

In December 2025, the respondent filed another application under Section 151 CPC seeking re-tendering and re-recording of the examination-in-chief of PW-1 and PW-2.

The trial court allowed the application on 9 January 2026 and appointed another Local Commissioner for recording the evidence.

The petitioner challenged that order under Article 227 of the Constitution, contending that the application was barred by constructive res judicata and constituted a dilatory tactic.

1. Whether the respondent’s application under Section 151 CPC for re-tendering and re-recording the examination-in-chief of PW-1 and PW-2 was barred by constructive res judicata because an earlier application seeking similar relief had been allowed on 26 September 2024?

2. Whether permitting the respondent to record the examination-in-chief after cross-examination had already taken place amounted to an impermissible or dilatory reopening of evidence?

3. Whether the trial court was justified in exercising its inherent powers under Section 151 CPC to cure the procedural irregularity in the recording of evidence?

The Court applied Section 143(1) of the Bharatiya Sakshya Adhiniyam, 2023, corresponding to Section 138 of the Indian Evidence Act, which mandates that a witness must first be examined in chief and thereafter subjected to cross-examination.

Consequently, cross-examination cannot properly exist in law where examination-in-chief has not been recorded.

The Court also considered the inherent jurisdiction of the civil court under Section 151 CPC to correct procedural irregularities in the interests of justice, particularly where the irregularity affects the substantive rights of the parties.

Although the petitioner relied on Satyadhyan Ghosal v. Sm. Deorajin Debi, Hope Plantations Ltd. v. Taluk Land Board and Shanmughasundram v. Diravia Nadar on res judicata and constructive res judicata, the Court held that the doctrine did not bar correction of an unresolved procedural defect where the earlier order had not resulted in the defect being cured.

The Court found that it was undisputed that the examination-in-chief of PW-1 and PW-2 had never been recorded, even though their cross-examination had been partially conducted.

This sequence violated the statutory order of examination prescribed by Section 143(1) BSA, under which examination-in-chief must precede cross-examination.

The later application was therefore directed only at curing the continuing procedural irregularity and not at introducing an entirely new or previously adjudicated claim.

Since the defect remained uncured even after the order dated 26 September 2024, the issue had not attained finality and the subsequent order permitting its correction could not be treated as barred by res judicata.

The Court further held that adherence to the statutory procedure could not be rejected merely because correction would prolong the proceedings; permitting cross-examination to stand without a recorded examination-in-chief could prejudice the parties’ substantive rights.

The trial court had properly exercised its inherent powers under Section 151 CPC to cure a material procedural irregularity and ensure compliance with Section 143(1) BSA.

The petition under Article 227 was accordingly dismissed, the order dated 9 January 2026 was upheld, and all pending applications were disposed of.