The power to recall a witness under Order XVIII Rule 17 CPC should be sparingly exercised and in appropriate cases, not to fill up omissions in the evidence but to clear any ambiguity that may have arisen during the course of examination.

JUDGMENT :

Prathiba M. Singh, J.

CM APPL.51749/2019 (for exemption)

1. Allowed, subject to all just exceptions. Application is disposed of.

CM(M) 1714/2019 & CM APPL. 51748/2019

2. The present petition under Article 227 challenges the impugned order dated 23rd October, 2019 by which the ld. Trial Court has permitted the reopening of the cross-examination of DW-2 – Ms. Manisha at the behest of the Plaintiff/Respondent. The case of the Petitioner/Defendant is that Ms. Manisha was cross-examined by the Plaintiff on 8th February, 2019 and the matter was thereafter listed for final arguments. At that stage, the Plaintiff moved an application relying upon various documents to argue that the statement made by Ms. Manisha that she signs in Hindi is not correct as she has also signed in English. Along with this application certain documents were also annexed. Considering that application, the impugned order has been passed by which the Trial court has permitted Ms. Manisha to be cross-examined again on 3rd December, 2019.

3. Ld. counsel for the Petitioner relies upon the judgment of the Supreme Court in M/s Bagai Construction Thr. Proprietor Lalit Bagai v. M/s Gupta Building Material Store, 2013 (14) SCC 1, the judgment of the Orissa High Court in Sarat Chandra Mohapatra v. Narasingha Mohapatra & Anr., II (2017) CLT 369 (Ori) as well as the Calcutta High Court judgment in Sipra Chatterjee v. Samir Ranjan Mukherjee, II (2018) CLT 101 (Cal.) to argue that Order XVIII Rule 17 CPC is only a provision which enables Court to clarify the doubts and is not meant to be used by the parties who wish to fill up lacunae in the evidence.

4. It is important to note that vide the amendment of the CPC in July, 2002, Order XVIII Rule 17(A) CPC has been repealed. Thus, under the CPC as it is prevalent currently, the power to recall and examine a witness is quite limited. As laid down in M/s Bagai Construction (supra), the parties cannot be permitted to file applications under Section 151 to place on record documents after the witness has been discharged. Further, the same cannot be permitted to fill up lacunae and gaps in the cross-examination/evidence. The observations in the M/s Bagai Construction (supra) read as under:

9. In Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate [Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 : (2009) 2 SCC (Civ) 198] this Court had an occasion to consider similar claim, particularly, application filed under Order 18 Rule 17 and held as under: (SCC pp. 414-15, paras 25, 28-29 & 31)

“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.

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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.

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31. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the court's discretion, if it deems fit, to allow such an appl