RECALLING AND EXAMINATION OF WITNESSES

[DR.MARIAPPAN GOVINDARAJAN]

In a civil suit both the plaintiffs and the defendants are entitled to examine, cross examine the witnesses.  Examination-in-chief is when the party who called the witness asks questions to elicit relevant testimony. Cross-examination allows the opposing party to question the witness, potentially revealing inconsistencies or biases. Re-examination, if desired by the party who called the witness, allows them to clarify any points raised during cross-examination. Once these procedures are closed no witness will be examined by both of the parties. 

However, Order 18 of the Code of Civil Procedure, 1908 (‘CPC’ for short) outlines the procedures for hearing a suit and examining witnesses in Indian civil courts. It covers the right to begin presenting evidence, the order of presenting cases, the examination of witnesses, and the court's power to recall and re-examine witnesses.

Order 18, Rule 17 of the CPC empowers the court to recall any witness who has been examined at any stage of a suit. The primary purpose of this rule is to enable the court to clarify any doubts or issues that may arise regarding the evidence presented by that witness. It's not intended for parties to re-examine witnesses or fill gaps in their evidence. The court can exercise this power either on its own initiative or upon request from any party involved.

This Rule provides the Court with a power which is necessary for the proper conduct of a case.  At any state of the proceedings the Court considers it necessary to recall and further examine a witness it can always do.  This power can be exercised even at the time of writing the judgment.  this power should not be exercised lightly and the rule is that it should be used sparingly and in exceptional cases only.

Section 165 of the Evidence Act, 1872 (corresponding section 168 of the Bharathiya Sakshiya Adhiniyam, 2023) gives power to Judges to put questions and order production.  The said section provides that the judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant and may order the production of any document or thing.  Neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any question.  The judgment must be based upon facts declared by this Act to be relevant and duly proved.  This section shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked or documents were called for by the adverse party nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149 nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

In ‘VADIRAJ NAGGAPA VERNEKAR (D) THROUGH LRS. VERSUS SHARAD CHAND PRABHAKAR GOGATE - 2009 (2) TMI 936 - SUPREME COURT, the Supreme Court held that though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. The evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross- examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.

In SULTAN SALEH BIN OMER VERSUS VIJAYACHAND SIRIMAL - 1965 (7) TMI 68 - ANDHRA PRADESH HIGH COURT, it was observed that a close reading of this rule makes it obvious that the right under that Rule to put question at any stage or a suit or recall any witness for that purpose, is given to the Court. The court can put questions to the witness recalled, and no cross-examination is ordinarily allowed upon the answers to the questions put by the Judge without leave.  The Court, therefore, held that it cannot therefore be said that an opportunity to a party to recall any witness for the purpose of examining cross-examining or re-examining is governed by Order 18, Rule  17 C.P.C.

In K.K. VELUSAMY VERSUS N. PALANISAMY - 2011 (3) TMI 1803 - SUPREME COURT the Supreme Court discussed the power of Court under Order 18 Rule 17.  The Supreme Court held that this power is only for clarification and not for any other purpose.  Even though the application has been filed by the parties to the case, it is only the Court can put questions to such witnesses and get answers from the witness. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions. This power is not to be used routinely.  If it is so used then it will defeat the very purposes of expediting trials. 

If 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. But if it does so, it should ensure that the process does not become a protracting tactic.           

The Supreme Court further held that while entertaining such action it should be ensured that-

• The court should firstly award appropriate costs to the other party to compensate for the delay.
• the court should take up and complete the case within a fixed time schedule so that the delay is avoided.
• If the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.

In SHUBHKARAN SINGH VERSUS ABHAYRAJ SINGH & ORS. - 2025 (5) TMI 932 - SUPREME COURT, the High Court, Madhya Pradesh rejected the Misc. petition No. 7264 of 2024 filed by the petitioner under Order 18 Rule 17 of CPC.  The petitioner filed a review petition in 117/2025 which was also dismissed.  Therefore, the petitioner filed the present petitions before the Supreme Court challenging the above said two orders of High Court.  The Supreme Court relied on the above judgments and dismissed the petition.  The Supreme Court held that 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.

Conclusion

Order 18 Rule 17 of CPC 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.