Recall of witness under Order 18 Rule 17 cannot be invoked to fill lacunae or produce previously available evidence.

The Petitioner (licensee) occupied two commercial premises in Worli, Mumbai, under Leave and License Agreements dated March 29, 1997.

The licenses expired in 2006, and the Respondent (owner/licensor) filed eviction suits in 2009.

The Petitioner resisted the suits, claiming an "irrevocable license" due to permanent alterations and significant expenditure.

After the Petitioner’s witness (D.W.1) was cross-examined for six years and an evidence closure purshis was filed on April 8, 2025, the Petitioner moved applications under Order 18 Rule 17 of the CPC on June 27, 2025.

These applications sought to recall D.W.1 to produce and prove specific bills for civil works to support ledger entries already on record.

The Trial Court and Appellate Bench rejected the applications and subsequent review petitions, leading to these Writ Petitions.

1. Whether a party can be permitted to recall a witness under Order 18 Rule 17 or Section 151 of the CPC to produce additional evidence (bills) that were in their possession during the entire trial but omitted due to "inadvertence".

2. Whether the Court should exercise its inherent powers to allow additional evidence when the application is made before the commencement of oral arguments but after the closure of evidence.

Order 18 Rule 17 of the CPC, which grants the court discretionary power to recall and examine witnesses to clarify evidence.

Section 151 of the CPC regarding inherent powers to meet the ends of justice.

The principle from M/s. Bagai Constructions v. M/s. Gupta Building Material Store holding that documents in a party’s exclusive possession throughout the trial cannot be produced at a belated stage to fill lacunae.

The doctrine from K.K. Velusamy v. N. Palanisamy, emphasizing that these powers are not for routine use and require a showing of due diligence and bona fides.

The court noted the deletion of Order 18 Rule 17A, which formerly governed additional evidence.

The court found that the Petitioner failed to demonstrate "due diligence" as required by law.

The defense of incurring expenditure was raised in 2009, yet the Petitioner waited 16 years—including six years while their witness was in the box—to seek production of the bills.

The court rejected the plea of "inadvertence," noting that the Petitioner’s current claim of "searching and finding" the bills after evidence closure was not pleaded in the original applications.

Following Bagai Constructions, the court reasoned that allowing the recall to prove bills (when ledger entries were already marked) would essentially permit the Petitioner to fill gaps in evidence caused by its own negligence.

The court observed that the Petitioner, paying a nominal license fee compared to market rates, was using these applications as a "protracting tactic" to delay the 19-year-old litigation.

The court dismissed the Writ Petitions, holding them to be a gross abuse of process and upheld the concurrent findings of the lower courts.

The Petitioner was ordered to pay costs of Rs. 25,000/- per petition to the Respondent, and the Trial Court was directed to proceed with arguments and decide the suits expeditiously.