1. Partition suit — Application to recall plaintiff for cross-examination — Trial court allowed the application. (Para 1 , 8 , 9 )
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2026 Supreme(AP) 1267
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
HARINATH.N, J.
Khambampati Hanumantha Rao, S/o. Late Seshagiri Rao – Petitioner
Versus
Dara Venkata Naga Satya Kishore, S/o. Lateseshagiri Rao – Respondent
Civil Revision Petition No: 2637 Of 2022
Decided On : 25-02-2026
Important Points
While Order 18 Rule 17 CPC cannot be used to fill lacunae, recalling a witness for cross-examination is permissible and essential for a trial on merits if the party has not yet cross-examined the witness, ensuring effective adjudication of the dispute.
Subject
Civil Law - Procedural Law
Act Referred
Headnote
(A) Code of Civil Procedure, 1908 - Order XVIII, Rule 17 - Recall of witness for cross-examination - The main purpose of the rule is to enable the Court to clarify any doubts regarding the evidence led by parties (Para 4) - The provision is not intended to be used to fill up omissions or lacunae in the evidence of a witness who has already been examined (Paras 4, 11).
(B) Procedural Fairness - Where the primary contesting parties have not cross-examined a witness, such cross-examination is essential for the effective adjudication of the dispute and for the suit to be decided on its merits (Paras 11, 13).
Facts of the case:
A suit for partition was filed concerning the alleged clandestine sale of a terrace area. The first and second defendants did not cross-examine the plaintiff witness because their counsel was absent, resulting in a record of "nil cross-examination." After engaging new counsel, the first defendant filed an application to recall the plaintiff witness for cross-examination, which was allowed by the trial court despite an abnormal delay. This order was challenged in a revision petition on the grounds that it was being used to fill lacunae in the evidence.
Findings of Court:
The court found that while the rule against filling lacunae is settled, the fact that the key defending parties had not cross-examined the plaintiff at all meant the suit could not be effectively decided on its merits without such evidence. The interests of justice and the need for a comprehensive trial outweigh the delay in filing the application.
Issues: Whether the order allowing the recall of the plaintiff witness for cross-examination under Order XVIII Rule 17 of the Code of Civil Procedure should be set aside.
Ratio Decidendi: While Order 18 Rule 17 CPC cannot be pressed into service for filling up lacunae, it is essential for the adjudication of the lis and a trial on merits that the competent and appropriate parties are given an opportunity to cross-examine a witness if they have not yet done so.
Result: Civil Revision Petition is dismissed.
(B) Procedural Fairness - Where the primary contesting parties have not cross-examined a witness, such cross-examination is essential for the effective adjudication of the dispute and for the suit to be decided on its merits (Paras 11, 13).
Facts of the case:
A suit for partition was filed concerning the alleged clandestine sale of a terrace area. The first and second defendants did not cross-examine the plaintiff witness because their counsel was absent, resulting in a record of "nil cross-examination." After engaging new counsel, the first defendant filed an application to recall the plaintiff witness for cross-examination, which was allowed by the trial court despite an abnormal delay. This order was challenged in a revision petition on the grounds that it was being used to fill lacunae in the evidence.
Findings of Court:
The court found that while the rule against filling lacunae is settled, the fact that the key defending parties had not cross-examined the plaintiff at all meant the suit could not be effectively decided on its merits without such evidence. The interests of justice and the need for a comprehensive trial outweigh the delay in filing the application.
Issues: Whether the order allowing the recall of the plaintiff witness for cross-examination under Order XVIII Rule 17 of the Code of Civil Procedure should be set aside.
Ratio Decidendi: While Order 18 Rule 17 CPC cannot be pressed into service for filling up lacunae, it is essential for the adjudication of the lis and a trial on merits that the competent and appropriate parties are given an opportunity to cross-examine a witness if they have not yet done so.
Result: Civil Revision Petition is dismissed.
Legal Category Hierarchy
- practice and procedure
-
property law
- partition suits (Para 8)
Advocates Appeared:
For the Petitioner: Sri. E V V S Ravi Kumar
For the Respondent: Sri. Goli Ganesh Venkata Satyasai
For the Petitioner: Sri. E V V S Ravi Kumar
For the Respondent: Sri. Goli Ganesh Venkata Satyasai
Table of Contents
2. Petitioner argued recall was to fill lacuna in evidence; respondents argued fair opportunity should be granted. (Para 2 , 3 , 4 )
3. Order 18 Rule 17 not for filling lacunas; but non-cross-examination by necessary parties requires recall for effective adjudication. (Para 11 , 12 )
4. Recall under Order 18 Rule 17 CPC is permissible when a necessary party has not cross-examined, to ensure fair adjudication. (Para 11 , 12 , 13 )
5. Civil Revision Petition dismissed; trial court order allowing recall of PW1 upheld; suit to be decided within eight months. (Para 13 , 14 )
6. Can Order 18 Rule 17 CPC be used to fill lacuna in cross-examination?
No, Order 18 Rule 17 CPC cannot be used to fill lacuna in cross-examination, but it can be used to recall a witness when a necessary party has not cross-examined. (Para 11 , 12 )
7. Is recall of a witness permissible when the defendant was absent due to counsel change?
Yes, recall can be permitted if a party could not cross-examine due to counsel absence or change, especially when the witness is a necessary party for adjudication. (Para 9 , 11 , 12 )
ORDER :
HARINATH.N, J.
1. The petitioner is aggrieved by the order dated 12.12.2022 passed in I.A.No.404 of 2022 in O.S.No.40 of 2013 by the XV Additional District and Sessions Judge, Krishna District at Nuzvid. The said interlocutory application was filed to recall PW1 for cross-examination, and the learned Judge allowed it.
2. The learned counsel appearing for the petitioner submits that a Petition under Order XVIII, Rule 17, CPC, could not be filed to fill the lacuna in the cross-examination. It is submitted that the plaintiff was cross- examined by the other defendants in the suit. However, the 1st defendant awaited the cross-examination of the plaintiff as PW.1 by the other defendants and thereafter filed I.A. No. 404 of 2022 seeking to recall PW. 1 for cross-examination. It is submitted that the motive of filing the application at a belated stage is only to fill up the lacuna in the evidence, which is not permissible under the law.
3. The learned counsel for the petitioner further submits that the learned Judge has erred in allowing the I.A. solely on the ground that a fair opportunity ought to be granted to the petitioner to cross-examine the PW1. It is also submitted that the learned Judge observed that there was an abnormal delay in filing the petition; however, despite such observation, the I.A. was allowed without assigning any reasons.
4. The learned counsel for the petitioner further places reliance on Vadiraj Nagappa Vernekar (dead) Through L.Rs. Sharadchandra Prabhakar Gogate, (2009)4SCC410 the Hon’ble Supreme Court held that, 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. The Hon’ble Supreme Court in the matter of Bagai Construction Through Its Proprietor Lalit Bagai Vs. Gupta Building Material Store, (2013)14SCC1 held that after amendment to the CPC recording of evidence is to be continuous followed by arguments and final decision thereafter within a reasonable time. It was also observed that the Hon’ble Supreme Court has time and again reminded the Courts to constantly endeavour to follow such a time schedule. In the event, time schedule is not followed the very purpose of amending the provisions of Civil Procedure Code would be defeated. It was also observed that applications for adjournments, reopening and recalling witnesses could be as far as possible and only in compelling and acceptable reasons, those applications are to be considered. It was also held that by filing applications for recalling the witnesses the case of the party cannot be include resulting in filling up the lacuna.
5. The learned counsel appearing for the respondent Nos. 4, 6 to 9 submits that the respondent Nos. 4, 6 to 8 have adopted the counter filed by the petitioner in I.A.No. 404 of 2022. Though the notice has been served on the contesting respondents, there is no representation on their behalf when the matter is taken up for hearing.
6. Heard the learned counsel for the petitioner and the learned counsel appearing for respondent Nos. 4 and 6 to 9. Perused the material on record.
7. The short point for consideration is ;
Whether this Court can consider the case of the petitioner and set aside the order passed by the learned XV Additional District and Sessions Judge, Krishna District at Nuzvid in IA No. 404 of 2022 in OS No. 40 of 2013 ?
8. The suit in O.S.No.40 of 2013 is filed for partition and is pending trial. The petitioner and the 1st defendant are children of the 2nd defendant. The case of the plaintiff before the trial Court is that the defendant Nos.1 and 2 have indulged in clandestine sale transaction of 1,500 square feet of open terrace area on
