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2025 (5) TMI 932 - SC - Indian LawsRight to recall a witness for the purpose of examining cross-examining or re-examining the witness under Order 18 Rule 17 of the Civil Procedure Code (CPC) - inherent jurisdiction under Section 151 C.P.C. - Section 165 of the Evidence Act - HELD THAT - It is true that the power can be exercised by the Court at its own initiative and may even be so done at the instance of a party. Section 165 of the Evidence Act provides that a Judge may in order to discover or obtain proper proof of relevant facts ask any question he pleases in any form at any time of any witness about any fact relevant. The section further provides that the parties shall not be entitled to make any objection to any such question nor crossexamine any witness upon any answer given in reply to any such question without the leave of the Court. If the provisions of Order 18 Rule 17 are read along with the provisions of Section 165 of the Evidence Act it is clear that the power to recall and re-examine a witness is exclusively that of the court trying the suit. The parties to the suit cannot take any objection to the question asked nor can they be permitted to cross-examine any witness without the leave of the court. The said rule in our opinion makes it abundantly clear that the right to put questions to the witness recalled under Rule 17 is given only to the court and even cross-examination is not ordinarily permitted on the answers given to such questions without the leave of the court. Under that rule therefore a witness cannot be recalled at the instance of a party for the purpose of examining cross examining or re-examining and that rule is not intended to serve such purpose and the purpose for which that rule can be invoked is the one that is indicated above. We are of the opinion that if circumstances warrant an opportunity to a party to re-call a witness for examining cross examining or re-examining can be granted by a Court in the exercise of its inherent jurisdiction under Section 151 C.P.C. In view of the position of law as explained aforesaid the Special Leave Petitions stand dismissed.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Court are:
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Whether a party has the right under Order 18 Rule 17 CPC to recall a witness for examination, cross-examination, or re-examination Relevant legal framework and precedents: Order 18 Rule 17 CPC states that the Court may recall any witness at any stage of the suit and put such questions as it thinks fit, subject to the law of evidence. Section 165 of the Evidence Act empowers the Judge to ask questions to any witness to discover or obtain proper proof of relevant facts, and bars parties from objecting or cross-examining without the Court's leave. The Court referred to Sultan Saleh Bin Omer v. Vijayachand Sirmal, which held that the right to recall a witness and put questions is vested exclusively in the Court, and parties cannot recall witnesses for examination or cross-examination under this rule. Court's interpretation and reasoning: The Court interpreted Order 18 Rule 17 CPC as conferring power solely on the Court to recall witnesses for clarification or to remove ambiguities. It is not intended to allow parties to recall witnesses for their own examination or cross-examination. The Court emphasized that the power is to be exercised sparingly and only for the Court's purpose of clarifying evidence, not to fill gaps in a party's case. Key evidence and findings: The Court relied on the text of the rule, Section 165 of the Evidence Act, and authoritative precedent to conclude that parties do not have a right under Order 18 Rule 17 CPC to recall witnesses for examination or cross-examination. Application of law to facts: Since the petitioner sought to recall witnesses for examination or cross-examination under Order 18 Rule 17, the Court found such invocation misplaced and upheld the High Court's rejection of the petition. Treatment of competing arguments: The petitioner's argument that the rule permits recalling witnesses for examination was rejected as contrary to the statutory scheme and judicial interpretation. Conclusion: A party does not have the right under Order 18 Rule 17 CPC to recall witnesses for examination, cross-examination, or re-examination; the power to recall is exclusively vested in the Court for clarificatory purposes. Issue 2: The scope of the Court's inherent jurisdiction under Section 151 CPC to allow recalling witnesses for examination or cross-examination Relevant legal framework and precedents: Section 151 CPC grants inherent powers to the Court to make orders necessary for the ends of justice. The Court referred to its earlier decisions, including Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate and K.K. Velusamy v. N. Palanisamy, which clarified that while Order 18 Rule 17 is restrictive, the Court may exercise inherent jurisdiction under Section 151 CPC to allow recalling witnesses for examination or cross-examination in appropriate cases. Court's interpretation and reasoning: The Court acknowledged that although Order 18 Rule 17 does not permit parties to recall witnesses for their own examination, the Court can, in exceptional and bona fide circumstances, permit such recall under its inherent powers. However, this power must be exercised sparingly, not routinely, and only when additional evidence will assist in clarifying issues and rendering justice. Key evidence and findings: The Court emphasized the need to prevent misuse of this power to cause delay or to cover negligence. It highlighted safeguards such as awarding costs for delay, fixing time schedules for case completion, and rejecting frivolous or mischievous applications with heavy costs. Application of law to facts: The petitioner had not demonstrated sufficient grounds to invoke the Court's inherent jurisdiction for recalling witnesses for examination or cross-examination. The Court found the High Court's rejection of such a petition justified. Treatment of competing arguments: The Court balanced the need for justice and procedural efficiency, cautioning against routine or tactical use of the power to recall witnesses. Conclusion: The Court's inherent jurisdiction under Section 151 CPC may permit recalling witnesses for examination or cross-examination in exceptional cases, but such power must be exercised judiciously and sparingly. Issue 3: The proper exercise of the Court's discretion in recalling witnesses and preventing abuse of process Relevant legal framework and precedents: The Court referred to the principles laid down in Vadiraj Naggappa Vernekar and K.K. Velusamy cases, emphasizing that the power to recall witnesses should not be used as a tool for delay or to fill lacunae in a party's case. Court's interpretation and reasoning: The Court underscored that the power to recall witnesses is to be exercised only when it assists in clarifying evidence and ensuring justice. The Court must guard against protracting tactics and ensure that the trial proceeds expeditiously. Key evidence and findings: The Court highlighted procedural safeguards such as awarding costs against frivolous applications and fixing time limits for completing the trial once witnesses are recalled. Application of law to facts: The petitioner's attempt to recall witnesses did not meet the criteria of bona fide necessity or valid reasons for non-production of evidence earlier. Thus, the Court upheld the rejection of the petition. Treatment of competing arguments: The Court rejected any argument that recall of witnesses should be permitted as a matter of routine or convenience. Conclusion: The Court's discretion to recall witnesses must be exercised with caution, ensuring it serves the interests of justice without causing undue delay or abuse of process. 3. SIGNIFICANT HOLDINGS "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." "The power is to be used for removing ambiguities, for clarifying the statement and not for the purposes of filling up the lacuna in a party's case." "The power to recall and re-examine a witness is exclusively that of the court trying the suit. The parties to the suit cannot take any objection to the question asked nor can they be permitted to cross-examine any witness without the leave of the court." "Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded." "If circumstances warrant, an opportunity to a party to re-call a witness for examining, cross-examining or re-examining can be granted by a Court in the exercise of its inherent jurisdiction under Section 151 C.P.C." "The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials." "Where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence." "If the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs." Final determination: The Court dismissed the Special Leave Petitions challenging the High Court's orders refusing to recall witnesses under Order 18 Rule 17 CPC, affirming that the power to recall witnesses for examination or cross-examination lies within the Court's inherent jurisdiction and must be exercised sparingly and judiciously.
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