Uttarakhand High Court
Shashibala vs Virendra Kumar on 11 July, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition Misc. Single No. 966 of 2021
11TH JULY, 2025
Shashibala --Petitioner
Versus
Virendra Kumar --Respondent
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Presence:-
Mr. Siddhartha Singh, Advocate for the petitioner.
Mr. Jagdish Chandra Belwal & Mr. Kailash Chandra Tiwari, Advocates for the
respondent.
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JUDGMENT
By means of this petition, filed under Article
227 of the Constitution, petitioner has sought the
following relief:-
“(i) Issue a writ, order or direction in the
nature of certiorari calling for the record of the case
and to quash judgment dated 27.02.2021 (Annexure
No. 1), in regard to issuance of notice instead of
granting interim injunction and further to allow the
application of temporary injunction.”
2. Learned counsel for the petitioner, however,
submits that petitioner is aggrieved by rejection of her
application filed under Oder 18 Rule 17 CPC by the Trial
Court, as affirmed by Revisional Court. He submits that
the Trial Court rejected the application under Order 18
Rule 17 CPC, vide order dated 16.08.2019 and the
Revisional Court affirmed the said order, vide judgment
dated 27.02.2021, rendered in Civil Revision No. 39 of
2019.
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3. From the pleadings made in the writ petition,
it is revealed that respondent filed a suit for partition,
inter alia on the ground that he is co-owner in respect
of the property in question, which was purchased
jointly by a common sale deed in the name of plaintiff
and defendant. The said suit was numbered as Civil
Suit No. 128 of 2010. In the said suit, after cross-
examination of plaintiff, petitioner moved an application
under Order 18 Rule 17 CPC, seeking recall of the
plaintiff for the purpose of cross-examination. In the
said application, it was stated that plaintiff could not be
cross examined on the question of his financial capacity
to purchase the property and other attending
circumstances, which were prevailing at the time of
execution of sale deed.
4. Learned Trial Court [Civil Judge (Junior
Division), Rudrapur] rejected the said application vide
order dated 16.08.2019 by holding that Order 18 Rule
17 CPC only enables the Court to recall a witness, in
order to clarify any issue or doubt either suo moto or at
the request of any party, however, it does not create
any right in favour of a party to re-open the evidence
for the purpose of further examination-in-chief or
cross-examination.
5. Petitioner, thereafter filed Civil Revision No.
39 of 2019 challenging Trial Court’s Order. The said
revision was also dismissed by learned District Judge,
Udham Singh Nagar, vide judgment dated 27.02.2021.
In this petition, petitioner has challenged both the
aforesaid judgment and orders.
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6. Mr. Siddhartha Singh, learned counsel for the
petitioner submits that in the written statement, filed
by petitioner, it was pleaded that entire sale
consideration for purchasing the property in question,
was paid by petitioner’s husband and name of the
plaintiff (respondent herein) was added in the sale deed
as purchaser, in good faith; however, during cross-
examination, question regarding financial capacity of
the plaintiff to purchase 1/2 share of the property could
not be put to him; since that question goes to the root
of the matter, therefore, the application for recall of the
plaintiff was moved, which deserved to be allowed; the
learned Trial Court erred in rejecting the said
application and the Revisional Court also committed
error in not allowing the revision filed by petitioner.
7. Per contra, Mr. Jagdish Chandra Belwal,
learned counsel for the respondent submits that
provision contained in Order 18 Rule 17 CPC enables a
Court to recall a witness, if there is some ambiguity in
the evidence or the Court wants to elucidate on some
points. He further submits that this provision cannot be
invoked for filling up omission in the evidence, already
led by a witness.
8. Order 18 Rule 17 of the Code of Civil
Procedure, 1908 is reproduced below:-
“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.”
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9. In the case of Vadiraj Naggappa Vernekar v.
Sharadchandra Prabhakar Gogate, reported as (2009) 4
SCC 410, Hon’ble Supreme Court while considering the
scope of power under Order 18 Rule 17 CPC held as
under:-
“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.
27. In the instant case, Sadanand Shet was
shown to have been actively involved in the
acquisition of the flat in question and, therefore, had
knowledge of all the transactions involving such
acquisition. It is obvious that only after the cross-
examination of the witness that certain lapses in his
evidence came to be noticed which impelled the
appellant to file the application under Order 18 Rule
17 CPC. Such a course of action which arises out of
the fact situation in this case, does not make out a
case for recall of a witness after his examination has
been completed..
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 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.
10. Similarly, in the case of Ram Rati v. Mange
Ram, reported as (2016) 11 SCC 296, Hon’ble Supreme
Court held as under:-
“11. The respondent filed the application under
Rule 17 read with Section 151 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.
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No doubt, once the court recalls the witness for the
purpose of any 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 v. Sharadchandra
Prabhakar Gogate [Vadiraj Naggappa
Vernekar v. Sharadchandra Prabhakar Gogate,
(2009) 4 SCC 410, this principle has been
summarised at paras 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.
***
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 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. Palanisamy [, the
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principles enunciated in Vadiraj have been followed,
holding at paras 9 and 10 : (K.K. Velusamy case SCC
pp. 281-82)
“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 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.” (emphasis in original)
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 at para 11, which reads as
follows : (SCC p. 282)
“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.
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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 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.”
18. The settled legal position under Order 18
Rule 17 read with Section 151 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.”
11. In a recent judgment, rendered by Hon’ble
Supreme Court in the case of Shubhkaran Singh v.
Abhayraj Singh, reported as 2025 SCC OnLine SC
1028, Hon’ble Supreme Court reiterated that the power
available to the Court under Order 18 Rule 17 CPC
should be used sparingly and in exceptional cases, only
for removing ambiguities for clarifying the statement
and not for filling up the lacuna in a party’s case.
Paragraph nos. 7, 8 & 9 of the said judgment are
extracted below:-
“7. 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 that7
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. Section
165 of the Evidence Act provides that a Judge may in
order 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.
8. 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.
9. In this connection, we may refer to the
following observations in Sultan Saleh Bin
Omer v. Vijayachand Sirmal [AIR 1966 AP 295.],
which accords with the above view:
“A close reading of this rule makes it
obvious that the right under that Rule to put
question at any stage or a suit or recall any
witness for that purpose, is given to the Court.
The court can put questions to the witness
recalled, and no cross-examination is ordinarily
allowed upon the answers to the questions put by
the Judge without leave…….. It cannot therefore
be said that an opportunity to a party to recall
any witness for the purpose of examining cross-
examining or re-examining is governed by O. 18,
R. 17 CPC ………..”
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12. In view of the settled legal position, as
discussed above, learned Trial Court was justified in
rejecting the application for recall of witness made by
the petitioner, as recall of witness was sought for
purposes of filling up the lacuna in petitioner’s case.
Learned Revisional Court also was right in not
interfering with the Trial Court’s Order.
13. Thus, this Court do not find any reason to
interfere in the matter.
14. The writ petition fails and is dismissed. No
order as to costs.
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MANOJ KUMAR TIWARI, J.
Dt: 11.07.2025
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