Summary
The Supreme Court dismissed special leave petitions against orders of the Madhya Pradesh High Court rejecting an application under Order XVIII Rule 17 CPC and a review petition, holding that the power to recall a witness under that rule belongs to the court for clarifying evidence and cannot be invoked by a party to examine, cross-examine or re-examine a witness or to fill gaps in its case.
Issues
- Whether a party can invoke Order XVIII Rule 17 CPC to have a witness recalled for further examination, cross-examination or re-examination.
- Whether a court may nonetheless permit a party to recall a witness in exercise of its inherent jurisdiction under Section 151 CPC.
Provisions considered
- Order XVIII Rule 17, Code of Civil Procedure, 1908Read as conferring on the court a power to recall any witness at any stage, even while writing judgment, to put questions and remove ambiguities; the power is to be used sparingly and in exceptional cases, and not to fill a lacuna in a party's case. The right to question the recalled witness is the court's alone, and cross-examination on the answers is not ordinarily permitted without leave. (¶¶ 6, 7, 8, 11, 12)
- Section 165, Indian Evidence Act, 1872Read along with Order XVIII Rule 17 CPC: the Judge may ask any question of any witness at any time to discover proper proof of relevant facts, and parties may neither object to such questions nor cross-examine on the answers without leave, confirming that the power to recall and re-examine is exclusively the court's. (¶ 7)
- Section 151, Code of Civil Procedure, 1908Where circumstances warrant, a court may grant a party an opportunity to recall a witness for examination, cross-examination or re-examination in exercise of its inherent jurisdiction, though this power too is not to be used routinely and should be accompanied by costs and a fixed time schedule. (¶¶ 10, 12)
Held
- Order XVIII Rule 17 CPC vests the power to recall and further examine a witness in the court trying the suit. It exists for the proper conduct of the case, to remove ambiguities and clarify a statement, and may be exercised at any stage including while writing the judgment, suo motu or at a party's instance; but it is to be used sparingly, in exceptional cases, and not to fill up a lacuna in a party's case. (¶¶ 7, 11)
- Read with Section 165 of the Evidence Act, the right to put questions to a witness recalled under Rule 17 belongs only to the court; parties cannot object to the questions and cross-examination on the answers is not ordinarily permitted without leave. A witness therefore cannot be recalled under Rule 17 at a party's instance for the purpose of examining, cross-examining or re-examining him. (¶¶ 7, 8, 9, 12)
- If circumstances warrant, a court may grant a party an opportunity to recall a witness for examination, cross-examination or re-examination under its inherent jurisdiction under Section 151 CPC. Following K.K. Velusamy, neither Section 151 nor Order XVIII Rule 17 is to be used routinely merely for the asking; where an application is bona fide and the additional evidence will assist the court, it may be allowed subject to costs and a fixed time schedule, while mischievous or frivolous applications meant to cover up negligence or lacunae should be rejected with heavy costs. (¶¶ 10, 12)
- In view of this settled position, the High Court's rejection of the petitioner's application under Order XVIII Rule 17 and of the review petition called for no interference. (¶ 13)
Result
Special Leave Petitions dismissed; pending applications disposed of.