[Order XVIII Rule 17 CPC] Recall Applications Can't Be Allowed Merely For Filling Lacuna In Cross-Examination: Delhi High Court

The Delhi High Court has held that recall applications under Order XVIII Rule 17 of CPC cannot be allowed merely for filling lacuna in cross-examination by engaging a new counsel.

A single judge bench comprising of Justice C. Hari Shankar further held that the High Court's jurisdiction under Article 227 of the Indian Constitution was intended to be used sparingly for keeping subordinate courts within bounds and not for correcting mere errors.

Briefly, the facts of the case are that a petition was filed under Article 227 of the Constitution of India against an order passed by the Trial Court, rejecting a recall application under Order XVIII Rule 17 of CPC filed by the petitioner-defendant on the ground that after the cross examination of witnesses, the petitioner had changed her Counsel. The Counsel newly engaged in the matter requested for recall of witnesses contending the quality of the cross-examination conducted by the previous counsel. This request was dismissed by the impugned order of the Trial Court which stated that–

"It seems that the learned counsel for the defendant cross-examined the witnesses on relevant aspects to the best of her understanding. The present application has been filed by the new counsel engaged by the defendant but simply because a new counsel has been engaged and the said counsel thinks otherwise about the quality of cross-examination conducted by the earlier counsel, it cannot be said that there is an valid and justifiable ground for recalling of the witnesses after such a long period. If such like requests are considered and allowed by the courts then there will be no end to the litigation."

Aggrieved by the said order, the petitioner invoked the jurisdiction vested in the High Court by Article 227 of the Constitution of India.

Here, the court stated that its jurisdiction under Article 227 was circumscribed by very "well-known and well-delineated parameters" and as per the judgement of Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand "the power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and, not for correcting mere errors."

While analysing the power of courts under Order XVIII Rule 17 of the CPC, the court held that there existed no absolute right, vested in any party, to seek recall of a witness. The court relied upon Ram Rati v. Mange Ram which states that–

"The basic purpose of Order XVIII Rule 17 is to enable the court to clarify any position or doubt, and the court may, either suo motu or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence."

Nothing this, the Court further stated the recall of a witness under Order XVIII Rule 17 has to be for clarifying any doubts which may exist. Further, in exceptional cases, the court held that the parties may also be permitted to apply for recall of witnesses for further examination or cross examination under Order XVIII Rule 17 read with Section 151 of the CPC. In this context, a party may be permitted to recall a witness only if (i) there exists any doubt, remaining after the recording of the evidence of the said witness that has already taken place, which is required to be clarified or (ii) after the evidence of the witness has been recorded, the party seeking recall has come across evidence on which he could not lay his hands earlier, or (iii) evidence in regard to the conduct or action of the other party has come into existence. 

Thus, the Court upheld the Trial Court view's and stated that the Trial Court had correctly observed that the only ground on which the said plea has been made is that the earlier Counsel who was prosecuting the matter, by inadvertence, failed to ask certain questions which, according to the Counsel who has later taken up the case, were relevant. Such requests, if accommodated, would result in endless protraction of matters and would frustrate expeditious disposal of proceedings.

The petition was dismissed. 

CASE TITLE: SMT. SHASHI SEHDEV v. SH. NARENDER KUMAR SHARMA

Citation: 2022 LiveLaw (Del) 644

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