1. Petition under Article 227 assailing Trial Court's order dismissing application under Order XVIII Rule 17 CPC to recall a witness. (Para 6 )
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2026 Supreme(Online)(Del) 2718
IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajneesh Kumar Gupta, J
Kishan – Appellant
Versus
Usha Devi – Respondent
CM(M) 126/2026
Important Points
The discretionary power under Order XVIII Rule 17 CPC to recall a witness cannot be used by a party to fill in lacunae or omissions in their evidence, particularly when the application is filed belatedly after arguments have begun.
Subject
Civil Law - Procedural Law
Act Referred
Headnote
(A) Civil Procedure - Recall and Re-examination of Witness - Scope of Order XVIII Rule 17 CPC - The power to recall a witness is discretionary and cannot be invoked to fill up omissions or lacunae in the evidence already led, especially when the application is filed after part arguments have commenced. (Para 9, 11)
(B) Procedural Delay - Filing of application for recall - An application moved after undue delay and at a late stage of proceedings, aimed at supplying shortcomings in evidence pointed out during arguments, is misconceived and impermissible in law. (Para 10, 11)
Issues: Whether the trial court was justified in dismissing the application to recall and re-examine a material witness (PW-3) under Order XVIII Rule 17 of the CPC.
(B) Procedural Delay - Filing of application for recall - An application moved after undue delay and at a late stage of proceedings, aimed at supplying shortcomings in evidence pointed out during arguments, is misconceived and impermissible in law. (Para 10, 11)
Issues: Whether the trial court was justified in dismissing the application to recall and re-examine a material witness (PW-3) under Order XVIII Rule 17 of the CPC.
Legal Category Hierarchy
Advocates:
For the Appellants/Petitioners: Bhupesh Narula, Rinku Narula, Anugrah Ekka, Kanishk Taneja
For the Respondents: Monish Chhoker
For the Appellants/Petitioners: Bhupesh Narula, Rinku Narula, Anugrah Ekka, Kanishk Taneja
For the Respondents: Monish Chhoker
Table of Contents
2. Petitioner sought recall to fill inadvertent omissions; respondents opposed as delay tactic to fill lacunae after part arguments. (Para 7 , 8 )
3. Application moved after undue delay and after part arguments; appears to be attempt to fill lacunae in evidence. (Para 10 , 11 )
4. Power under Order XVIII Rule 17 CPC cannot be invoked to fill omissions or lacunae in evidence already led. (Para 11 )
5. Petition dismissed as devoid of merits; pending applications disposed of. (Para 12 )
6. Can a court allow recall of a witness under Order XVIII Rule 17 CPC to fill lacunae in evidence?
No, the power under Order XVIII Rule 17 CPC is discretionary and cannot be used to fill omissions or lacunae in evidence already led. (Para 11 )
7. Is delay in filing a recall application relevant to its merits?
Yes, undue delay in moving the application, especially after part arguments, indicates an attempt to fill lacunae and justifies dismissal. (Para 10 , 11 )
Rajneesh Kumar Gupta, J.
1. This hearing has been conducted through hybrid mode.
CM APPL. 9078/2026 (for early hearing)
2. ThisisanapplicationfiledonbehalfofthepetitionerunderSection151 of the Code of Civil Procedure, 1908 seeking early hearing of the present petition.
3. Learned counsel for the respondents has appeared on advance notice and accepted notice.
4. For the ground and reasons stated in the application, the same is allowed.Thepresentpetition is takenupfor hearingtodaywith the consentof the learned counsels.
5. Accordingly, the application is disposed of.
CM(M) 126/2026
6. The present petition has been filed by the petitioner under Article 227 of the Constitution of India, 1950 assailing the order dated 30th October,2025 passed by the learned Trial Court in CS. No. 236/2023, whereby the application of the petitioner/plaintiff filed under Order XVIII Rule 17 of the Code of Civil Procedure, 1908 to recall and re-examine PW-3, namely, Mohd. Irshad Ali, has been dismissed.
7. Learned counsel for the petitioner submits that PW-3 is a material witness, being one of the attesting witnesses of the alleged will. It is further submitted that certainrelevant facts couldnotbe brought on record during the examination-in-chief of PW-3 due to inadvertence and oversight. Learned counsel further contends that if PW-3 is not permitted to be recalled, grave prejudice would be caused to the petitioner.
8. On the other hand, learned counsel for the respondents submits that the application has been moved only with a view to delay the proceedings, as the same has been filed at a stage when part final arguments were heard, and that the attempt is merely to fill up the lacunae in the petitioner’s case. 9. The operative portion of the impugned order reads as unde: “12. It is evident from the record that part arguments in the matters were heard on 19.07.2025 and only thereafter the present application came to be filed on 30.07.2025.
13. Again, it is settled law that even though powers U/O XVIII Rule 17 CPC are discretionary in nature, the same cannot be invoked by a Court to fill up omission in the evidence already led byawitness.Infact,inthematterof‘RamratiVs.MangeRamAIR 2016 Supreme Court 1343’, the Hon'ble Supreme Court of India went on to hold that the said power cannot be used even in cases where no prejudice is caused to either party.
14. In the present case, Counsel for D-1 and Maya Devi are vehemently opposing the application pointing out that in case the present application is allowed, it would amount to allowing the plaintiff to supply the omissions they have pointed out during their part arguments made in the matter and this would gravely prejudice their case.
15. The same appears to be a correct stand taken by D-1 and Maya Devi. Evidently, the present application is a result of the deficiencies in plaintiff's evidence pointed out during arguments before this Court. Thus, if plaintiff is allowed to recall the said witness, it would basically be a case where plaintiff is being allowed to supply shortcomings/omissions in his evidence. PW-3 was examined before this Court on 27.04.2024 and he was cross-examined at length on the said date. His cross-examination runs in 5 pages and in case there was any clarification which was left out to be taken from him, he could have been re-examined or recalled soon after he was discharged.
16.Thedelayin movingofthe presentapplicationand thestageat which it has been moved shows that this is an attempt by the plaintiff to fill in the lacunae in his evidence, which cannot be permitted in law.
17. Considering the above, in my humble opinion, the present application is misconceived. It is dismissed.
18. To come up for final arguments on 02.12.2025, Dasti.”
10. AperusaloftherecordshowsthatPW-3wasexaminedonbehalfofthe petitionerandwasthereaftercross-examinedbytherespondentson27thApril, 2024. The present application was moved on 30th July, 2025, after the matter had been partly heard on merits.
11. Keeping in view the fac
