Right To Put Questions To Witness Recalled Under Order 18 Rule 17 Is Given Only To Court; Cross-Examination Not Ordinarily Permitted Without Leave Of The Court: Supreme Court

The special leave petitions before the Apex Court were filed against the order passed by the Madhya Pradesh High Court rejecting the petitioner’s petition filed under Rule 17 of the Civil Procedure Code. A Review Petition also came to be dismissed.

The Division Bench of Justice J.B. Pardiwala and Justice R. Mahadevan held, “The said rule, in our opinion, makes it abundantly clear that the right to put questions to the witness recalled under Rule 17 is given only to the court and even cross-examination is not ordinarily permitted on the answers given to such questions, without the leave of the court. Under that rule therefore, a witness cannot be recalled at the instance of a party for the purpose of examining, cross examining or re-examining, and that rule is not intended to serve such purpose, and the purpose for which that rule can be invoked is the one that is indicated above.”

Reasoning

Referring to Order 18 Rule 17, which talks about recalling a witness, the Bench said, “This Rule provides the Court with a power which is necessary for the proper conduct of a case. If it appears to a court trying the suit at any stage of the proceedings that it is necessary to recall and further examine a witness, it can always do so. This power can be exercised even at the stage of writing a judgment by the court. It is, however, proper that this power should not be exercised lightly and the rule is that it should be used sparingly and in exceptional cases only. The power is to be used for removing ambiguities, for clarifying the statement and not for the purposes of filling up the lacuna in a party's case. It is true that the power can be exercised by the Court at its own initiative and may even be so done at the instance of a party.”

Reference was also made to Section 165 of the Evidence Act, which provides that a Judge may, to discover or obtain proper proof of relevant facts, ask any question he pleases in any form at any time of any witness about any fact relevant. The section further provides that the parties shall not be entitled to make any objection to any such question, nor cross-examine any witness upon any answer given in reply to any such question without the leave of the Court.

“If the provisions of Order 18 Rule 17 are read along with the provisions of Section 165 of the Evidence Act it is clear that the power to recall and re-examine a witness is exclusively that of the court trying the suit. The parties to the suit cannot take any objection to the question asked nor can they be permitted to cross-examine any witness without the leave of the court”, it said.

The Apex Court also observed, “We are of the opinion that if circumstances warrant, an opportunity to a party to re-call a witness for examining, crossexamining or re-examining can be granted by a Court in the exercise of its inherent jurisdiction under Section 151 C.P.C.” The Bench took note of the judgment in K.K. Velusamy v. N. Palanisamy (2011) wherein it was held that the power under Order 18 Rule 17 of CPC is only for clarification i.e. to enable Court to clarify any issue or doubt, it may have in regard to evidence led by parties by recalling any witness so that the Court itself can put questions to such witness and elicit answers.

Thus, in light of such legal aspects, the Bench dismissed the petitions.

Cause Title: Shubhkaran Singh v. Abhayraj Singh & Ors (Neutral Citation: 2025 INSC 628)

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