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2026 Supreme(Ker) 806
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SYAM KUMAR V.M., J.
Janasree Mission Idukki District – Appellant
Versus
Kallar Janasree Society – Respondent
OP (C) No. 953 of 2018
Decided On : 02-06-2026
For the Appellants : K.S. Hariharaputhran, Dipu James, George Mathew, M.D. Sasikumaran, Sethuram Dharmapalan, Sunil Kumar A.G.
The court's power under Order XVIII Rule 17 of the Code of Civil Procedure to recall a witness is intended to ensure a just decision. When a reasoned explanation for delay in evidence production is offered, a court must evaluate its merits rather than dismissing the request on blanket assumptions.
Headnote:(A) Code of Civil Procedure, 1908 - Order XVIII Rule 17 - Recall of witness for examination - Discretionary power of court - Requirement for a just decision - Where a party seeks to recall a witness to mark additional documents, the court must evaluate the specific reasons provided for the delay in production rather than summarily rejecting the application based on a generalized finding of prior availability. (Paras 6, 8)
(B) Trial Practice - Duty of court - In exercising its discretion under Order XVIII Rule 17, the court must ensure that relevant evidence is not shut out, provided the application is bona fide and necessary for a just resolution. The mere availability of documents at an earlier stage does not automatically bar their subsequent production if a valid procedural explanation for the delay is presented and not adequately addressed. (Paras 7, 8)
Facts of the case:
The petitioner, as plaintiff, initiated a civil suit for the recovery of money. During the trial, when the matter was posted for further evidence, the plaintiff sought permission to produce additional documents and recall a witness to mark them. The plaintiff contended that these documents were stored at a central office and were only obtained after the witness was initially examined. The trial court dismissed these applications, concluding that the documents were within the plaintiff's possession before the suit was filed and that the request was merely an attempt to fill lacunae in the evidence.
Findings of Court:
The court observed that the lower court failed to adequately consider the specific contention regarding the logistical delay in obtaining the documents from the central office. The reasoning provided by the trial court for dismissals was held to be insufficient and neglected to engage with the explanation offered by the plaintiff. The court clarified that the power to recall a witness under the relevant procedural rule is intended to ensure a just decision in the case.
Issues: The main issue was whether the lower court exercised its discretion correctly under the procedural rules in refusing to recall a witness for the purpose of marking documents that were purportedly unavailable during the initial examination.
Ratio Decidendi: The court held that the discretionary power to recall a witness must be exercised with the objective of reaching a just decision. When a party provides a specific explanation for the delay in producing evidence, the court is obligated to weigh that explanation rather than dismissing the application based on an unsupported assumption of the party's prior knowledge or availability of the documents. Excluding relevant evidence without proper consideration of the party's explanation can lead to a failure of justice.
Result: The impugned order was set aside and the trial court was directed to reconsider the applications afresh.
| Table of Content |
|---|
| 1. procedural context for the revision petition against trial court interlocutory orders. (Para 2 , 3) |
| 2. assessment of lower court refusal to recall witnesses under order xviii rule 17 cpc. (Para 5 , 6 , 7) |
| 3. court's discretion to recall witness for a just decision under order xviii rule 17. (Para 8) |
JUDGMENT :
SYAM KUMAR V.M., J.
1. This Original Petition is filed by the petitioner, who is the plaintiff in O.S.No.371 of 2015 before the Munsiff Court, Kattappana, challenging the common order dated 09.03.2018 disposing of I.A.No.425 of 2018 and I.A.No.435 of 2018 filed in the said O.S.
2. O.S.No.371 of 2015 was filed by the plaintiff for realisation of an amount of Rs.2,20,737/- with interest and costs thereon from the respondents/defendants in the suit. The petitioner, a registered Society, had disbursed certain amounts to the respondents who are members registered with the self-help group affiliated with the petitioner. Agreements had also been entered into between the parties in the said respect wherein the respondents had agreed to repay in 24 instalments with interest. Since the respondents defaulted on payment, the suit was filed for recovery of the amount. Respondents entered their appearance in the suit and had filed written statements disputing the claim. The suit then proceeded to trial, and petitioner had let in evidence. In the course of the trial, the petitioner filed I.A.No.425 of 2018 seeking permission to produce 6 documents which the petitioner stated had only been received after the commencement of the trial. A petition for reopening the evidence by recalling the witness for letting in further evidence was also filed as I.A.No.435 of 2018. The respondents filed objections to the said I.As. The learned Munsiff, vide Common Order dated 09.03.2018, dismissed both the I.As. Aggrieved by the said Common Order, this O.P.(C) has been filed.
3. O.P.(C) was admitted to file on 02.04.2018, and an interim stay of further proceedings in the O.S. was granted. The matter had been pending since then.
4. Heard Sri.George Mathew, Advocate for the petitioner. Though service is complete against respondents, there is no appearance on their behalf.
5. The short question that comes up for consideration is whether the learned Munsiff erred in rendering the impugned order refusing permission to recall and examine PW1 again to mark the documents which are said to have been subsequently received by the petitioner.
6. The learned Munsiff had, in the impugned Common Order, noted that PW1 had been examined on 14.02.2018 and Exhibits A1 to A11 documents had been marked through him. He had been cross-examined and thereafter, the case was adjourned for the petitioner/plaintiff's evidence on various dates. It is during the said period that the petitioner/plaintiff had filed the above I.As seeking to reopen the evidence, recall the witness, and accept the documents proposed to be marked through him. The learned Munsiff had concluded that the documents sought to be introduced by recalling PW1 were available when PW1's affidavit was prepared and affirmed, and even before the filing of the suit. The learned Munsiff also concluded that it is not as if new facts have been discovered subsequently, which were not within the knowledge of PW1 when the affidavit in evidence was prepared. A finding that after the cross-examination of PW1 certain lapses in his evidence were noted, and the same had compelled the petitioner/plaintiff to file the above application, was also arrived at by the learned Munsiff. Based on such reasoning, the learned Munsiff had refused permission to recall the witness and to mark the documents through him. That Order XVIII Rule 17 CPC is not intended to be used to fill up an omission in the evidence of the plaintiff who had already been examined, and the said provision is only capable of enabling the court to clarify any doubts in the case, which had also been pointed out by the learned Munsiff in the impugned order. Hold
