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IN THE HIGH COURT OF DELHI
C. Hari Shankar, J.
Shashi Sehdev - Appellant
Versus
Narender Kumar Sharma - Respondent
CM (M) 616 of 2022 & CM No. 29053 of 2022
Decided On : 06-07-2022
Recall of Witness - Application under Order XVIII Rule 17 of CPC - [Recall of Witness] - [Specific Performance of Agreement to Sell] - [Order XVIII Rule 17 of CPC] - The court dismissed the application seeking recall of witnesses for further cross-examination, holding that the earlier cross-examination was conducted to the best of the counsel's understanding and that the new counsel's opinion did not justify recalling the witnesses. The court emphasized that allowing such requests would lead to unnecessary delay and prejudice the case of the plaintiff. The court's decision was based on the narrow statutory compass of Order XVIII Rule 17 and judicial authorities broadening its scope to serve the cause of justice.
Fact of the Case:
The respondent filed a suit seeking specific performance of an agreement to sell, alleging part performance and the petitioner's non-compliance. After the evidence was recorded, the respondent's new counsel sought to recall witnesses for further cross-examination, claiming that the earlier cross-examination was inadequate.
Finding of the Court:
The court found that the earlier cross-examination was conducted to the best of the counsel's understanding and that the new counsel's opinion did not justify recalling the witnesses. The court emphasized that allowing such requests would lead to unnecessary delay and prejudice the case of the plaintiff.
Issues: The main issue was whether the application seeking recall of witnesses for further cross-examination should be granted.
Ratio Decidendi: The court's decision was based on the narrow statutory compass of Order XVIII Rule 17 and judicial authorities broadening its scope to serve the cause of justice. The court emphasized that the recall of a witness should be for clarifying any doubts which may exist after the recording of the evidence and not to fill up any lacuna or omission in the evidence already recorded.
Final Decision: The petition was dismissed with no orders as to costs.
1. This petition under Article 227 of the Constitution of India assails order dated 18th November 2019 passed by the learned Additional District Judge ("the learned ADJ"), rejecting an application under Order XVIII Rule 17 of the Code of Civil Procedure (hereinafter referred to as "CPC") filed by the petitioner (the defendant before the learned ADJ) in CS 576816/16, (Narender Kumar Sharma v. Shashi Sehdev).
2. CS 576816/16 was preferred by the respondent against the petitioner seeking specific performance of an agreement to sell dated 8th January 2013. Among the averments in the plaint was the averment that the respondent had completed part performance of the agreement to sell and that the petitioner was exhibiting recalcitrance in complying with her part of the deal. The respondent, as the plaintiff in the suit, examined himself as PW-1 and one Raj Rani Sharma as PW-2. The petitioner, as the defendant in the suit, cross examined the respondent and PW-2 Raj Rani Sharma.
3. Admittedly, the recording of evidence of PW-1 was concluded on 13th October 2016 and the recording of evidence of PW-2 Raj Rani Sharma was concluded on 6th March 2017.
4. Thereafter, the respondent chose to change her Counsel. The Counsel newly engaged in the matter filed application under Order XVIII Rule 17 CPC which has come to be dismissed by the impugned order dated 18th November 2019. Paras 4 to 7 of the application, which set out the justification for seeking recall of PW-2 for further cross examination, read thus:
"4. That at the time of adducing the evidence, the plaintiff examined himself and Smt. Raj Rani Sharma also examined on behalf of the plaintiff. The Counsel for the defendant cross-examined of both the above said witnesses, but the Counsel for the defendant due to the oversight/inadvertence could not cross-examine the veracity of the part performance done and as allegedly performed by the plaintiff on his behalf. It is also pertinent to mention here that the Counsel for the defendant also failed to cross-examined the PW-1 & PW-2 on the facts with respect to the alleged payment made to the defendant and in which circumstances the alleged Agreement dated 08.01.2013 was executed.
5. That the Counsel for the defendant could not cross-examined the PW-1 & PW-2 on the abovesaid aspects and if the witnesses would not be cross-examined on these two aspects then these facts will be treated the admission on the part of the defendant.
6. That this fact came to the knowledge of the Counsel for the defendant recently and the cross-examination of the PW-1 & PW-2 is very necessary on the abovesaid aspects and therefore, it is necessary to call the witnesses PW-1 & PW-2 for further cross-examination by this Hon'ble Court is very necessary.
7. That the defendant is having a very valuable right in the present suit and if the Hon'ble Court shall not grant the opportunity to the defendant to cross-examine the PW-1 & PW-2 on the abovesaid aspects then the defendant shall suffer an irreparable loss and injury, which cannot be compensated in terms of time and money and it is further submitted that if the Hon'ble Court allows the present application then no prejudice shall be caused to the plaintiff in any manner. Rather it will be helpful in properly adjudication of the present case by this Hon'ble Court."
5. The learned ADJ has, in the impugned order dated 18th November 2019, observed thus:
"It is matter of record that PW-1 was examined in chief on 22.02.2016 and he was cross-examined at length on 27.04.2016 and 13.10.2016. Similarly, PW-2 Smt. Raj Rani Sharma was examined on 06.03.2017 and was cross-examined at length on same day. It seems that the learned counsel for the defendant cross-examined the witnesses on relevant aspects to the best of her understanding. The present application has been filed by the new counsel engaged by the defendant but simply because a new counsel has been engaged and the said counsel thinks otherwise about the quali
The recall of a witness under Order XVIII Rule 17 should be for clarifying doubts and not to fill up any lacuna or omission in the evidence already recorded.
The right to lead evidence is pivotal to a fair trial and partakes of the character of natural justice and fair play. The recall of a witness under Order XVIII Rule 17 should be for clarifying any do....
Order 18 Rule 17 CPC enables Court to recall any witness to clarify any doubts which it may have with regard to evidence led by parties.
The court emphasized that powers under Order 18, Rule 17 CPC cannot be used to fill omissions in previously recorded witness evidence, reaffirming its intended use for clarification only.
The power to recall witnesses under Order 18 Rule 17 CPC is to clarify ambiguities, not to fill evidentiary gaps, and should be exercised sparingly.
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