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.

JUDGMENT :

Mrs. Alka Sarin, J.

1. The present revision petition has been filed under Article 227 of the Constitution of India challenging the order dated 26.04.2024 (Annexure P-1) passed by the Civil Judge (Senior Division), Bhiwani whereby the application filed by the defendant-petitioner for recalling the plaintiff witnesses i.e. PW-2 Nehru Singh, PW-3 Desh Raj and PW-4 Jaipal for further cross-examination was dismissed.

2. Brief facts relevant to the present lis are that the plaintiff-respondent herein filed a suit for specific performance. After the pleadings were completed, the plaintiff-respondent concluded his evidence on 30.03.2019 and the defendant-petitioner herein concluded his evidence on 12.01.2023. Subsequently, the present application was filed for recalling the aforesaid witnesses of the plaintiff-respondent for further cross-examination. On 26.04.2024 the said application was dismissed vide the impugned order. Hence, the present revision petition.

3. Learned counsel for the defendant-petitioner would contend that there are certain questions which were not put to the witnesses of the plaintiff-respondent by the counsel representing the defendant-petitioner at that point of time and that certain material question suggestions are essential which need to be put to the said witnesses of the plaintiff-respondent.

4. Heard.

5. Order 18 Rule 17 CPC reads as under :

“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.”

6. In the present case the plaintiff-respondent concluded his evidence on 30.03.2019 and the defendant-petitioner concluded his evidence on 12.01.2023. Thereafter the present application was filed for recalling the aforesaid plaintiff-respondent’s witnesses for further cross-examination. There is no cogent reason forthcoming as to why the said witnesses need to be recalled except for stating that certain material questions were not put at the time when they were being cross-examined. The Trial Court has noticed in the impugned order that PW-2 to PW-4 were cross-examined by the defendant-petitioner’s counsel and the cross-examination was substantially lengthy. The only endeavour of the defendant-petitioner appears to fill in lacuna in his case which cannot be permitted in law. Once the plaintiff-respondent was examined and cross-examined at length, there was no question of the witnesses being recalled merely on the ground that certain material questions were not put to the said witnesses.

7. Hon’ble Supreme Court in the case of Ram Rati Vs. Mange Ram (D) thr LRs & Ors., [2016 (2) RCR (Civil) 464], after considering the various judgments, has held as under :

“12. In Vadiraj Naggappa Vernekar (Dead) Through LRs. v. Sharadchandra Prabhakar Gogate 2009 (2) RCR (Civil) 508: (2009) 4 SCC 410, this principle has been summarised at paragraphs- 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.

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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 par