Order XVIII Rule 17 CPC Does Not Permit Party To Cross-Examine Recalled Witness: Supreme Court
The Court held that the High Court erred in directing cross-examination of recalled witness, and held that the provision permits only the court's own questions, not cross-examination by parties.
The Supreme Court has set aside a Telangana High Court order that permitted the plaintiffs to reopen their evidence and recall a witness at the fag end of the trial, after final arguments had substantially progressed, holding that Order XVIII Rule 17 of the Code of Civil Procedure, 1908 does not permit a party to cross-examine a recalled witness and that the mere absence of prejudice to the opposing party cannot, by itself, justify invoking the provision.
Reiterating that Order XVIII Rule 17 exists solely to enable the trial court to recall a witness for the limited purpose of clarifying its own doubts on the evidence already on record, the Court held that the provision cannot be used to fill gaps or omissions in a party's case. It further held that the Telangana High Court had travelled beyond the scope of the Rule by directing that the recalled witness be made available for cross-examination, even though the provision empowers only the court, not the parties, to put questions to a recalled witness.
A Bench of Justice S.V.N. Bhatti and Justice N.V. Anjaria observed, “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 vs. Mahesh Nenshi Bhakta and Others AIR 2003 Bom 293, 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”.
The Bench said that it endorses the observations in Balkrishna Shivappa Shetty where it was observed, “…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…”.
Advocate C. Mukund appeared for the appellant and Mehmood Umar Faruqui, AOR appeared for the respondents.
The dispute arose from a 2010 suit for declaration of title and injunction filed by the respondents concerning certain properties in Ghatkesar village, Telangana, against which the appellant claimed ownership under two 1987 registered sale deeds and over two decades of uninterrupted possession, having earlier obtained a permanent injunction decree in his favour in 1990.
After the plaintiffs' evidence was fully recorded, an application for appointment of an Advocate Commissioner to inspect the suit properties was closed in 2018 on the plaintiffs' own admission that the houses on the property had collapsed in 2016 rains and no structure existed. The suit proceeded to final arguments, with the appellant's arguments concluded, before the plaintiffs filed three interim applications seeking to recall a witness (PW-1), reopen evidence, and place additional documents regarding house numbers on record.
The Trial Court allowed these applications, reasoning that no prejudice would be caused to the appellant. The High Court, in revision, modified but substantially upheld this course, directing completion of PW-1's recall and re-examination within ten days, and, critically, directing the appellant to complete cross-examination of PW-1 within a week thereafter, while imposing costs of Rs. 20,000 on the plaintiffs.
Surveying the settled jurisprudence on Order XVIII Rule 17, the Court reiterated that the power to recall a witness is a discretionary tool vested in the court itself, meant to be exercised sparingly to clarify doubts arising from evidence already on record, not to permit a party to introduce fresh evidence, cure omissions, or refine a case at a late stage.
The Court held that since the plaintiffs' evidence was already complete, arguments were well underway, and the plaintiffs themselves had earlier admitted no structure existed on the suit property (leading to closure of their commissioner application in 2018), the applications for reopening evidence were "apparently filed as a delaying tactic" destined to serve no real purpose.
Accordingly, the Court held the High Court's directions were "not sustainable in law," set aside the impugned common order dated September 15, 2023, and allowed the appeals.
Cause Title: K. Bharathamma v. Bandaru Sakku Bai and Others (Neutral Citation: 2026 INSC 795)
Appearances:
Appellant: C. Mukund, Bijoy Kumar Jain, AOR, Advocates.
Respondents: Mehmood Umar Faruqui, AOR.