Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Bom) 863

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SANDEEP V. MARNE, J.
Amines And Plasticizers Limited - Petitioner
Versus
APL Holdings and Investments Limited - Respondent
Writ Petition No. 3109 of 2026 With Writ Petition No. 3128 of 2026
Decided On : 28-04-2026
Advocates Appeared :
For the Petitioner : Mr. Girish S. Godbole, Senior Advocate with Mr. Haaris Koradia i/b Sujit Lahoti & Associates, Mr. Nirman Sharma with Mr. Haaris Koradia i/b Sujit Lahoti & Associates.
For the Respondent : Mr. Gaurav Joshi, Senior Advocate with Mr. Gaurang Mehta, Ms. Neelam, Ms. Namita Shirke & Ms. Vanita Shinde i/b Mr. Jaydeep Thakkar.

Advocates:
For the Appellants/Petitioners:Mr. Girish S. Godbole, Senior Advocate with Mr. Haaris Koradia i/b Sujit Lahoti & Associates, Mr. Nirman Sharma with Mr. Haaris Koradia i/b Sujit Lahoti & Associates
For the Respondents:Mr. Gaurav Joshi, Senior Advocate with Mr. Gaurang Mehta, Ms. Neelam, Ms. Namita Shirke & Ms. Vanita Shinde i/b Mr. Jaydeep Thakkar

Power under Order 18 Rule 17 CPC r/w Section 151 to recall witness for additional evidence post-closure is discretionary, not routine; rejected where no due diligence for non-production earlier, mere inadvertence insufficient, aimed at delaying long-pending suits.

Headnote:(A) Code of Civil Procedure, 1908 - Order 18 Rule 17 r/w Section 151 - Recall of witness and production of additional documents - Applications filed post evidence closure seeking recall of defendant’s witness to prove bills supporting ledger entries evidencing expenditure on permanent alterations to licensed premises - Defense of irrevocable license and permanent works raised in written statement filed in 2009 - Issues framed in 2012; plaintiff’s evidence closed 2019; defendant’s witness examined/cross-examined over years, evidence closed April 2025 - Applications rejected by trial court, upheld by appellate and review benches - Power discretionary, not to be exercised routinely to fill lacunae, cover negligence or protract trials; requires bona fides, due diligence for non-production earlier, relevance to assist justice - Mere inadvertence insufficient without pleadings of search efforts post-closure; evidence available throughout trial - No interference warranted in concurrent findings. (Paras 17-30)

(B) Code of Civil Procedure, 1908 - Order 18 Rule 17 - Scope - Court’s power to recall witness for further examination exists but sparingly in exceptional cases to clarify evidence, not for parties to patch evidence gaps after opportunities availed; deleted Order 18 Rule 17A underscores intent against prolonging trials - Applications filed with delay motive in long-pending suits held abuse of process, especially where licensee holds valuable premises at low fee post-expiry. (Paras 19-22, 30-32)

Facts of the case:
Suits for recovery of licensed office premises instituted in 2009 post license expiry in 2006; licensee defended inter alia on grounds of permanent alterations, huge expenditure - Post evidence closure purshis, licensee applied to recall own witness, produce supporting bills claiming inadvertence; trial/appellate courts rejected; reviews dismissed; writ petitions challenge same.

Findings of Court:
No case made for recall/additional evidence; defendant negligent despite 16 years, ample opportunities; applications derail arguments, prolong occupation benefiting licensee; suits to proceed expeditiously.

Issues: Whether lower courts erred in rejecting applications for witness recall/production of bills post-evidence closure absent due diligence; scope of Order 18 Rule 17 r/w Section 151 to permit additional evidence discovered allegedly post-closure.

Ratio Decidendi: Recall power not for filling evidentiary gaps when documents available earlier, no due diligence pleaded/shown; pretext of inadvertence admits possession; distinguishes scenarios of newly discovered evidence; upholds rejection to prevent trial delay/abuse.

Result: Writ petitions dismissed with costs of Rs.25,000/- each; trial court to commence arguments forthwith.

Table of Content
1. writs challenge denial of witness recall. (Para 1 , 4)
2. license expired; alterations defense raised. (Para 2 , 3 , 11 , 12)
3. inadvertence justifies additional evidence recall. (Para 5 , 6)
4. applications are delay tactics post-opportunity. (Para 7 , 8 , 9)
5. no due diligence pleaded despite ample time. (Para 10 , 13 , 14 , 15 , 16)
6. o.18 r.17 discretionary, not for lacunae. (Para 17 , 18 , 19)
7. cannot reopen for available evidence bills. (Para 20 , 21)
8. velusamy requires bona fide valid reasons. (Para 22 , 23)
9. recall sparingly with due diligence essential. (Para 24 , 25 , 26 , 27)
10. delaying suits abuses court process. (Para 28 , 29 , 30 , 31)
11. petitions dismissed; suits expedited. (Para 32 , 33)

JUDGMENT :

1) These two petitions are filed by the Petitioner-licensee challenging the orders dated 3 January 2026 passed by the Appellate Bench of the Small Causes Court rejecting the Revisions filed against the orders passed by the Trial Court on 20 September 2025 by which applications filed by the Petitioner seeking permission to lead further evidence of D.W.1 and for production of additional documents were rejected by the Trial Court. The orders passed by the Appellate Bench on 3 January 2026 was subjected to review at the instance of the Petitioner and Review Petitions are rejected by orders dated 7 February 2026, which are subject matter of challenge in the present petitions.

2) Two office premises admeasuring 2490 sq.ft and 2821 sq.ft. on the North and South Wing respectively on 6th floor of D-building in Shiv Sagar Estate situated at Dr. Annie Besant Road, Worli, Mumbai are the ‘suit premises’ in L.E.& C. Suit No. 132/178 of 2009 and L.E. & C. Suit No. 136/182 of 2009 respectively filed before the Court of Small Causes at Mumbai. Plaintiff-Respondent is the owner of the suit premises. By Agreements of Leave and License dated 29 March 1997, Plaintiff permitted Petitioner-Defendant to use and occupy the suit premises. The period of license was for 3 years, which was renewable by further period of 3 years. The first period of license expired on 30 April 2000/31 January 2000. According to the Defendants, the same was renewed from 1 May 2000/1 February 2000 to 30 April 2003/31 January 2003. It is also the case of the Defendant that the license was further renewed from 1 May 2003/ 1 February 2003 to 30 April 2006/31 January 2006 being the second renewal. Even after expiry of second renewal period on 30 April 2006/31 January 2006, Defendant continued to occupy the suit premises. The initial license fees were agreed in respect of both the premises as Rs.30,000/- per month which according to the Plaintiff was increased to Rs.48,400/-. The Defendant had paid the license fees upto October 2008.

3) Plaintiff has instituted two suits for recovery of both the suit premises in the Court of Small Causes at Mumbai. The Defendant resisted the suits by filing Written Statements taking a defense inter-alia of irrevocable license. Defendant claimed that it is in possession of the suit premises since the year 1974. Defendant has also raised the defense of Plaintiff being a subsidiary company of the Defendant formed for acquisition of assets. The Defendant has also raised the defense of permanently altering the character and layout and incurring of huge expenditure on the suit premises.

4) Issues were framed in the suits based on the pleadings on 23 April 2012. Issue No.2 in both the suits is about the Defendant carrying out work of permanent character in the suit premises. Plaintiff filed Affidavit of Evidence of its witness on 30 August 2013. The cross-examination of Plaintiff’s witness went on from August 2013 to 15 January 2018. Plaintiff filed evidence closure purshis on 6 March 2019. Defendant filed affidavit of evidence of its witness Mr. Hemant K. Ruia (Chairman and Managing Director of the Defendant). Cross-examination of Defendant’s witness was conducted from 4 March 2025 to 30 April 2025. On 8 April 2025, Defendant

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2026 Supreme(Bom) 863

Power under Order 18 Rule 17 CPC r/w Section 151 to recall witness for additional evidence post-closure is discretionary, not routine; rejected where no due diligence for non-production earlier, mere inadvertence insufficient, aimed at delaying long-pending suits.

Cases Referred (2)