The discretion to recall a witness under Order XVIII Rule 17 CPC allows clarification of ambiguities in testimony, essential for fair adjudication without filling gaps in evidence.

JUDGMENT :

YOGENDRA KUMAR SRIVASTAVA, J.

The present petition under Article 227 of the Constitution of India has been filed challenging the order dated 04.02.2025 passed by the Judge, Small Cause Court, Kanpur Nagar in SCC Suit No.12 of 2020 (Archana Tripathi vs. Gopi Kishan Khandelwal), whereby Application No. 99C/99-Ga filed by the petitioner–tenant seeking recall/re- examination of witness DW-1 was rejected. The petitioner has also assailed the subsequent order dated 19.09.2025 passed by the Additional District Judge, Court No. 24, Kanpur Nagar in SCC Revision No. 81 of 2025, whereby the revision against the trial court’s order was dismissed.

2. The petition raises a significant question concerning the scope and application of Order XVIII Rule 17 of the Code of Civil Procedure read with Sections 137, 138 and 145 of the Indian Evidence Act, 1872, particularly the fine distinction between an impermissible attempt to fill up lacunae in evidence and a permissible exercise of seeking clarification of an ambiguity in a witness’s testimony, so as to enable the Court to arrive at the truth and ensure a fair adjudication.

3. The underlying SCC Suit No.12 of 2020 was instituted by the respondent–plaintiff seeking eviction, recovery of arrears of rent and damages, claiming ownership over the suit property on the basis of a Will dated 10.11.2010. The petitioner–defendant contested the suit by filing a written statement dated 18.02.2021, asserting that rent since the year 2010 had not been paid to the plaintiff but was being received by one Devendra Kumar Tripathi, son of Satyawati Tripathi, original owner of the premises. It was further pleaded that the Will dated 10.11.2010 relied upon by the plaintiff stood cancelled by a subsequent Will dated 21.01.2012 executed by the original owner, who admittedly died on 23.04.2019. According to the defendant, rent continued to be received by Devendra Kumar Tripathi both prior to and after the death of the original owner.

4. In the replication, the plaintiff admitted that Devendra Kumar Tripathi had been receiving rent earlier, though she claimed that thereafter she became entitled to receive rent. During trial, PW-1, namely Karmendra Tripathi, admitted in his cross-examination that the signatures appearing on the rent receipts, marked as paper nos. 81-Ga to 86-Ga, were those of Devendra Kumar Tripathi and that the said signatures tallied with the originals.

5. The defendant entered the witness box as DW-1 and filed his affidavit in evidence, wherein he categorically stated that rent was received by Devendra Kumar Tripathi and that rent receipts were issued by him. Original rent receipts bearing the signatures of Devendra Kumar Tripathi were also brought on record. However, during cross- examination dated 16.12.2024, DW-1 made a statement to the effect that Devendra Kumar Tripathi did not issue rent receipts. It is not in dispute that at the time when this statement was recorded, the counsel for the defendant was not present.

6. Despite the apparent inconsistency between the affidavit and the statement made during cross-examination, the plaintiff’s counsel did not confront DW-1 with his earlier affidavit or with the rent receipts on record, as required under Section 145 of the Evidence Act. Nor was DW- 1 afforded any opportunity to explain the discrepancy. Thus, on a cumulative reading of the material on record, there existed three apparently consistent pieces of evidence supporting the case that rent was received by Devendra Kumar Tripathi and rent receipts were issued by him, namely, the admission of the plaintiff in the replication, the admission of PW-1 in cross-examination, and the categorical statement of DW-1 in his affidavit in evidence.

7. In these circumstances, the