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IN THE SUPREME COURT OF INDIA CIVIL  APPELLATE  JURISDICTION

CIVIL APPEAL NO.  1684 OF 2016 (Arising from S.L.P. (C) No. 22141 of 2013)

RAM RATI … APPELLANT (S)   

VERSUS

MANGE RAM (D) THROUGH LRS. AND OTHERS … RESPONDENT (S)

J U D G M E N T

KURIAN, J.:

Leave granted.  

2. Whether a witness can be recalled under Order 18 Rule 17 of

The Code of Civil  Procedure, 1908 (hereinafter referred to as ‘the

Code’) for further elaboration of aspects left out in evidence already

closed, is the issue for consideration in this case.  

3. There are two suits filed by the respective parties and pending

before the Tis Hazari Courts at Delhi. Civil Suit No. 43 of 2009 was

filed  by  the  respondents  herein  for  declaration  and  injunction  in

respect  of  the  plaint  schedule  property.  In  respect  of  very  same

property, the appellant herein also filed a suit seeking permanent

REPORTABLE

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injunction and that suit has been numbered as Civil Suit No. 44 of

2009. The suits were consolidated for common trial, on joint request,

by order dated 08.12.2007. Suit No. 43 of 2009, with the consent of

the parties, was ordered to be tried in the court where Suit No. 44 of

2009 was pending by order dated 26.09.2005 of the District Judge,

Delhi.  Much before that, evidence in Civil Suit No. 44 of 2009 had

commenced and the appellant herein had been examined as PW-1

and the respondents herein had cross-examined PW-1 as well. That

evidence was closed on 16.04.2005. After the consolidation of the

two suits, the respondents herein filed an application on 13.04.2010.

We  shall  extract  the  averments  made  in  the  said  application  as

under:

“APPLICATION  ON  BEHALF  OF  DEFENDANT  FOR DISCHARGING  THE  STATEMENT  OF  PW-1  AND EXAMINATION OF  WITNESS  I.E.  PW-1  AFRESH UNDER ORDER 18  RULE  17  C.P.C.  READ WITH SECTION  151 C.P.C.  

Sir,

The applicant most respectfully submits as under:-

1. That the plaintiff examined PW-1, Sh. Chottu Ram as  PW1-  on  6.12.2004.  His  cross  examination  was concluded on 16.4.2005.

2. That this Hon’ble Court consolidated the present suit with another suit titled as Mange Ram Vs. Chander Kanta etc. vide its order dated 8.12.2007.

3. That  while  passing  the  order  of  consolidation dated 8.12.2007, this Hon’ble Court ordered as under:-

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“It  has  been  so  urged  on  behalf  of  both contesting  sides  that  trial  in  two  cases  be conducted commonly and evidence led in either case be read in both these cases.”

4. The  directions  or  observations  of  this  Hon’ble Court as reproduced above operates prospectively and not retrospectively.  

5. That  when  the  Hon’ble  Court  ordered  that evidence  in  one  case  may  be  read  in  evidence  in another case, then plaintiff in Mange Ram Vs. Chander Kanta & Ors. would be deprived of the opportunity of cross  examination  of  PW-1  which  was  concluded  on 16.4.2005,  much  prior  to  the  date  of  order  of consolidation.

6. That as per  settled position of law on this point and as per terms of order of this Hon’ble Court dated 08.12.2007,  either  the  PW-1  be  examined  afresh  or opportunity to cross examine the PW-1 may be granted to  the  applicant/plaintiff  in  Mange  Ram  Vs.  Chander Kanta & Ors.

It  is,  therefore,  prayed  that  PW-1  may  kindly  be examined afresh or opportunity to cross examine the PW-1 in Ram Rati Vs. Mange Ram etc. may kindly be granted to the applicant.”

4. By  order  dated  15.04.2008  of  the  Additional  District  Judge,

Delhi in Civil Suit No. 43 of 2009 filed by the respondents, the suit as

against Defendant Nos. 5 and 6 was rejected and it was held that

the  plaint  did  not  disclose  any  cause  of  action  against  them.

Defendant  No.  5  was  the  plaintiff  in  Suit  No.  44  of  2009  and

Defendant  No.  6  is  her  husband.  That  Defendant  No.  5  is  the

applicant before this Court.

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5. Thus, the only ground taken up in the application filed under

Order 18 Rule 17 of the CPC is that after consolidation of the suits,

the plaintiff in Civil Suit No. 43 of 2009 should get an opportunity to

cross-examine  the  PW-1 (Defendant  No.  5  in  Civil  suit  No.  43  of

2009).

6. It  is  interesting  to  note  that  in  the  order  dated  24.02.2010

passed by the Additional District Judge in Civil Suit No. 44 of 2009, it

has been observed by the Court that the plaintiff in Civil Suit No. 44

of 2009 is  no more a party to Civil  Suit  No.  43 of 2009 and the

earlier  order  of  consolidation  of  suits  dated  08.12.2007  was

maintained, further clarifying that the past evidence of plaintiff in

Civil Suit No. 44 of 2009, which has already been recorded, to be

treated as the main suit.

7. We shall  extract the order dated 24.02.2010, which reads as

follows:

“Since  the  facts  in  this  suit  and  suit  No.  43/09  are intertwined even though Plaintiff is no more a party to suit No. 43/09, her claim for declaration to suit property therein  may  have  reflection  on  the  entitlement  of Plaintiff, therefore, with the consent of both sides, the consolidation  order  dated  8.12.2007  is  being maintained and suit No. 44/09 where past evidence of Plaintiff Ram Rati has been recorded is treated as main suit.”

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8. But  it  has  to  be noted that  the Suit  No.  43  of  2009 stands

rejected against that PW-1 (Defendant No.5). Not only that, being a

defendant in Suit No. 44 of 2009, PW-1 had been cross-examined

also by the respondent herein. What is lost, if at all it can be termed

so, is the opportunity to cross-examine in the capacity as plaintiff in

O.S. No. 43 of 2009. But that suit, as noted above, had already been

rejected  as  against  PW-1  (Defendant  No.  5),  appellant  herein.

Unfortunately,  both  the  courts  have  taken  the  view  that  the

examination of PW-1 in Suit No. 44 of 2009 having taken place prior

to consolidation, the plaintiff in Suit No. 43 of 2009 did not get an

opportunity to cross-examine him.  

9. The  trial  court,  by  order  dated  18.12.2010,  allowed  the

application filed by the respondent … “for further elaboration on the

left out points by the parties…”. The High Court, in the impugned

order,  endorsed  the  view  taken  by  the  trial  court,  holding  that

… “reading the impugned order shows that the witness has been

recalled, if available for further elaboration on the left out points to

both the parties”. Since, the High Court and trial court have taken a

wholly  wrong  approach  in  the  matter  and  against  the  settled

principles of law, it has become necessary for us to restate the law

as well.

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10. Order 18 of CPC deals with hearing of the suit and examination

of witnesses. By an amendment introduced thereunder with effect

from 01.02.1977, Rule 17A was introduced permitting production of

evidence  not  previously  known  or  which  could  not  be  produced

despite  due  diligence.  It  appears,  the  amendment  only  caused

unnecessary  protraction  of  the  litigation,  and  hence,  the  said

provision was omitted by The Code of Civil Procedure (Amendment)

Act,  1999  with  effect  from  01.07.2002.  However,  Rule  17  was

retained which reads as follows:  

“17. Court may recall and examine witness.-  The court may at any stage of a suit recall any witness who has  been  examined  and  may  (subject  to  the  law  of evidence for the time being in force) put such questions to him as the court thinks fit.”

11. The respondent filed the application under Rule 17 read with

Section 151 of the CPC invoking the inherent powers of the court to

make  orders  for  the  ends  of  justice  or  to  prevent  abuse  of  the

process of the court. The basic purpose of Rule 17 is to enable the

court to clarify any position or doubt, and the court may, either suo

motu or on the request of any party, recall any witness at any stage

in that regard. This power can be exercised at any stage of the suit.

No doubt, once the court recalls the witness for the purpose of any

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such clarification,  the  court  may  permit  the  parties  to  assist  the

court  by  examining  the  witness  for  the  purpose  of  clarification

required or permitted by the court. The power under Rule 17 cannot

be stretched any further. The said power cannot be invoked to fill up

omission in the evidence already led by a witness. It cannot also be

used  for  the  purpose  of  filling  up  a  lacuna  in  the  evidence.  ‘No

prejudice is caused to either party’ is also not a permissible ground

to invoke Rule 17. No doubt, it is a discretionary power of the court

but  to  be used only  sparingly,  and in  case,  the court  decides to

invoke  the  provision,  it  should  also  see  that  the  trial  is  not

unnecessarily protracted on that ground.  

12. In  Vadiraj  Naggappa Vernekar  (Dead)  Through  LRs. v.

Sharadchandra  Prabhakar  Gogate1, this  principle  has  been

summarized at paragraphs- 25, 28 and 29:  

“25. In our view, though the provisions of Order 18 Rule  17  CPC  have  been  interpreted  to  include applications  to  be  filed  by  the  parties  for  recall  of witnesses,  the  main  purpose  of  the  said  Rule  is  to enable  the  court,  while  trying  a  suit,  to  clarify  any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to  fill  up omissions in  the  evidence of  a witness who has already been examined. xxx    xxx  xxx

28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground

1  (2009) 4 SCC 410

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that his recall and re-examination would not cause any prejudice  to  the  parties.  That  is  not  the  scheme  or intention of Order 18 Rule 17 CPC.

29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by  the  court  either  on  its  own  motion  or  on  an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill  up the lacunae in  the evidence of  the witness which  has  already  been  recorded  but  to  clear  any ambiguity that may have arisen during the course of his examination.”

13. In  K.K.  Velusamy v.  N.  Palanisamy2, the  principles

enunciated  in  Vadiraj (supra)  have  been  followed,  holding  at

paragraphs- 9 and 10:  

“9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or  on an application filed by any of  the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to  clarify  any  doubts  it  may  have  in  regard  to  the evidence  led  by  the  parties.  The  said  power  is  not intended to be used to fill up omissions in the evidence of  a  witness  who  has  already  been  examined.  (Vide Vadiraj  Naggappa  Vernekar v.  Sharadchandra Prabhakar Gogate.)

10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for  their  further  examination-in-chief  or cross-examination  or  to  place  additional  material  or evidence  which  could  not  be  produced  when  the

2  (2011) 11 SCC 275

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evidence  was  being  recorded.  Order  18  Rule  17  is primarily a provision enabling the court to  clarify any issue  or  doubt,  by  recalling  any  witness  either  suo motu, or at the request of any party, so that the court itself  can  put  questions  and  elicit  answers.  Once  a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.”

14. The rigour under Rule 17, however, does not affect the inherent

powers of the court to pass the required orders for ends of justice to

reopen  the  evidence  for  the  purpose  of  further  examination  or

cross-examination  or  even  for  production  of  fresh  evidence.  This

power can also be exercised at any stage of the suit,  even after

closure of evidence. Thus, the inherent power is the only recourse,

as held by this Court in  K.K. Velusamy (supra) at paragraph-11,

which reads as follows:

“11. There  is  no  specific  provision  in  the  Code enabling  the  parties  to  reopen  the  evidence  for  the purpose  of  further  examination-in-chief  or cross-examination.  Section  151  of  the  Code  provides that nothing in the Code shall  be deemed to limit or otherwise  affect  the  inherent  powers  of  the  court  to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court.  In  the  absence  of  any  provision  providing  for reopening  of  evidence  or  recall  of  any  witness  for further examination or cross-examination, for purposes other than securing clarification required by the court, the  inherent  power  under  Section  151  of  the  Code, subject to its limitations, can be invoked in appropriate cases to reopen the evidence and/or recall  witnesses for  further  examination.  This  inherent  power  of  the

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court is  not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall  any  witness  to  enable  the  court  to  put  such question to elicit any clarifications.”

15. After surveying the various principles stated by this Court on

Section 151 from 1961, in K.K. Velusamy (supra), they have been

succinctly summarized as follows under paragraph-12:

“xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx a) Section 151 is not a substantive provision which

creates or confers any power or jurisdiction on courts. It merely recognises the discretionary power inherent in every  court  as  a  necessary  corollary  for  rendering justice in accordance with law, to do what is “right” and undo what is “wrong”, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.

(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if  the Code does  not  expressly  or  impliedly  cover  any  particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it.  The breadth of such power is  coextensive with the need to exercise such power on the facts and circumstances.

(c)  A  court  has  no  power  to  do  that  which  is prohibited by law or the Code, by purported exercise of its  inherent  powers.  If  the  Code  contains  provisions dealing  with  a  particular  topic  or  aspect,  and  such provisions either expressly or by necessary implication exhaust  the  scope  of  the  power  of  the  court  or  the jurisdiction  that  may be exercised  in  relation  to  that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner  inconsistent  with  such  provisions.  In  other words  the  court  cannot  make  use  of  the  special provisions  of  Section  151  of  the  Code,  where  the remedy or procedure is provided in the Code.

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(d)  The  inherent  powers  of  the  court  being complementary to the powers specifically conferred, a court  is  free  to  exercise  them  for  the  purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature.

(e)  While  exercising  the  inherent  power,  the  court will  be  doubly  cautious,  as  there  is  no  legislative guidance to deal with the procedural situation and the exercise  of  power  depends  upon  the  discretion  and wisdom of the court, and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of  the inherent power of a court, should not however be treated as a carte blanche to grant any relief.

(f) The power under Section 151 will have to be used with  circumspection  and  care,  only  where  it  is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet  the  ends  of  justice  and  to  prevent  abuse  of process of court.”

16. Some good guidance on invocation of Section 151 of the CPC to

reopen an evidence or production of fresh evidence is also available

in K.K. Velusamy (supra). To quote paragraph-14:

“14. The  amended  provisions  of  the  Code contemplate  and  expect  a  trial  court  to  hear  the arguments  immediately  after  the  completion  of evidence and then proceed to judgment. Therefore, it was  unnecessary  to  have  an  express  provision  for reopening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some

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evidence which he could not lay his hands on earlier, or some evidence in regard to the conduct or action of the other  party  comes  into  existence,  the  court  may  in exercise of its inherent power under Section 151 of the Code,  permit  the production of  such evidence if  it  is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.”

17. Vadiraj (supra) and  K.K. Velusamy (supra) have also found

affirmation  by  this  Court  in  Bagai  Construction  Through  its

Proprietor Lalit Bagai v. Gupta Building Material Store3.

18. The settled legal  position under Order 18 Rule 17 read with

Section 151 of the CPC, being thus very clear, the impugned orders

passed by the trial court as affirmed by the High Court to recall a

witness at the instance of the respondent “for further elaboration on

the left out points”, is wholly impermissible in law.  

19. In the above circumstances, the impugned order is set aside

and the appeal is allowed.

20. We are informed that during the pendency of the appeal, the

evidence  has  been  closed  and  what  remains  is  only  the  final

arguments. In view of the above, we direct the trial court to dispose

of the suits expeditiously and preferably within one moth from the

date of receipt of a copy of this order.

3  (2013) 14 SCC 1

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21. There shall be no order as to costs.   

……………..……………………J.                                                            (KURIAN JOSEPH)

……………..……………………J.                     (ROHINTON FALI NARIMAN)

New Delhi; February 23, 2016.