Supreme Court of India

Vadiraj Naggappa Vernekar (D) Th. ... vs Sharad Chand Prabhakar Gogate on 24 February,
2009
Bench: Altamas Kabir, Cyriac Joseph
VADIRAJ NAGGAPPA VERNEKAR (D) THROUGH LRS.
V.
SHARAD CHAND PRABHAKAR GOGATE
Civil Appeal No. 1172 of 2009
FEBRUARY 24, 2009
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

The Judgement of the Court was delivered by

1. Leave granted.

2. The short question for decision in this appeal is whether a witness having been examined by way
of affidavit evidence can be recalled for giving further evidence with regard to facts not mentioned
in the affidavit.

3. The aforesaid question arises in respect of a suit filed by one Vadiraj Naggappa Vernekar and Smt.
Mainabai Ranade, being Suit No. S.925 of 1990, before the learned Single Judge of the Bombay
High Court, seeking a declaration that the Letters of Administration obtained by one Sharadchandra
Prabhakar Gogate th on 5 November, 1998, in respect of the estate of Dr. Sudha Gogate, was not
binding on the plaintiffs or any of them and did not affect their right, title and interest in the suit
property, being Flat no.402, situated in Amogh Vikram Cooperative Housing Society Ltd., Murari
Ghag Marg, Prabhadevi, Bombay 400025. Vadiraj Naggappa Vernekar died during the pendency of
the suit and his legal representatives were brought on record in his place. The appellant No.1, being
the wife of the deceased, was made plaintiff no.1A and his sons and daughters were made plaintiff
Nos.B, C and D respectively.

4. One Sadanand Sheshgiri Shet, who was alleged to be a witness to all the transactions relating to
the said flat, was appointed as Constituted Attorney by the appellant and the other heirs of deceased
Vadiraj Naggappa Vernekar and as required under Order 17 Rule 4 CPC, his evidence by way of an
affidavit was filed before the learned Single Judge. While the evidence was still being recorded in the
suit, the appellant and the other plaintiffs moved Notice of Motion No.463 of 2006 th before the
learned Single Judge on 13 February, 2006, urging that certain facts which were necessary for proper
adjudication of the suit had inadvertently been left out in the affidavit affirmed by Sadanand Shet
and that it was, therefore, necessary to recall him for further examination-in-chief under the
provisions of Order 18 Rule 17 th CPC. By order dated 7 July, 2006, the learned Single Judge
dismissed the said Motion upon holding that the witness could not be recalled to fill up the lacuna in
his examination-in-chief on affidavit. Appeal No.853 of 2006 filed by the appellant herein st was
dismissed in limine by the Division Bench of the High Court on 1 December, 2006, confirming the
order of the learned Single Judge. The present appeal, by st leave, has been filed against the order of
the Appeal Court dated 1 December, 2006.

5. Learned Senior Advocate, Mr. P.S. Narasimha, who appeared for the appellant, briefly submitted
that the provisions of Order 18 Rule 17 CPC were very wide and could be made at any stage to
enable the Court to do complete justice between the parties. For the sake of reference, the
provisions of Order 18 Rule 17 CPC are reproduced hereinbelow:-

"17. Court may recall and examine witness. -

6. Mr. Narasimha also submitted that it has been held by way of judicial pronouncements that the
Court may recall and examine a witness not only suo motu but also on an application that may be
made by the parties to the suit. Learned counsel also submitted that the affidavit of evidence of
Sadanand Shet had been prepared by the learned advocate, who had inadvertently left out certain
vital facts which were necessary for a complete and proper adjudication of the suit. He urged that on
account of the omission of the learned counsel, the plaintiffs/appellants herein should not be made
to suffer since the evidence of Sadanand Shet went to the very root of the issues to be decided in the
suit. Mr. Narasimha also submitted that although the cross-examination of the witness on affidavit
had been completed, the defendants could always be permitted to re-examine the witness on the
fresh evidence that would be adduced. Mr. Narasimha also submitted that while ensuring that
proper justice was done between the parties, allowing the recall of Sadanand Shet would not in any
way prejudice the defendants.

7. In support of his aforesaid submissions, Mr. Narasimha firstly referred to the decision of this
Court in Smt. M.N. Amonkar & Ors. Vs. Dr. S.A. Johari (1984 (2) SCC 354), wherein this Court,
while considering the scope of Article 227 in dealing with an application under Order 18 Rule 17
CPC, came to a finding that unless the reasons given by the Trial Court in rejecting an application
under Order 18 Rule 17 CPC can be said to be moonshine, flimsy or irrational, the rejection of the
application cannot be dubbed as suggestive of non-judicial approach or bias or partiality on the part
of the Trial Court merely because in the exercise of its discretion another Court might have taken a
different view and allowed the application. Mr. Narasimha submitted that, in other words, an
application under Order 18 Rule 17 CPC should not be rejected as a matter of course, unless it was
shown that such an application was moonshine, flimsy or irrational.

8. Mr. Narasimha then referred to a Single Bench decision of the Madras High Court in S.S.S. Durai
Pandian Vs. Samuthira Pandian (AIR 1998 Mas 323) in which it had been held that under Order 18
Rule 17 CPC, the Court could not only recall a witness on its own but also on an application made
by the defendants. Similar views were expressed by the Himachal Pradesh High Court in the case of
Satinder Singh Vs. Sukhdev (AIR 1999 HP 72) and by the Punjab & Haryana High Court in the case
of Om Prakash Vs. Sarupa & Ors. (AIR 1981 P&H 157).

9. In this regard, Mr. Narasimha also referred to another Single Bench decision of the Rajasthan
High Court in Jodhpur Gums & Chemicals Pvt. Ltd. Vs. Punjab National Bank & Ors. (AIR 1999
Raj. 38), wherein while expressing the same views as expressed in the above-mentioned matters, it
was also observed that by allowing such an application for recall of a witness, no prejudice could be
caused to the defendants as, apart from being compensated by costs, they would also have the
opportunity to cross-examine the witness.

10. On the basis of the above, Mr. Narasimha submitted that the orders of the learned Single Judge,
as also the Division Bench, were passed on an erroneous understanding of the law and were liable to
be set aside.

11. Strongly opposing the submissions made on behalf of the appellants, Mr. Shivaji M. Jadhav,
learned Advocate, submitted that as has been held by the learned Single Judge and subsequently
confirmed by the Division Bench, the application made under Order 18 Rule 17 CPC was nothing
but an attempt to fill up the lacunae in the evidence of Sadanand Shet after his examination had
been completed. He urged that it is settled law that an application under Order 18 Rule 17 CPC
could not be allowed when the deponent, while preparing his affidavit evidence, had full knowledge
of all the facts which were now being proposed to be included in his evidence, and that the same
had been held to be impermissible. Mr. Jadhav also contended that the power under Order 18 Rule
17 CPC, though giving wide power to the Court to recall any witness at any stage of a suit in order
to examine him/her, was also meant to be exercised sparingly so that after the examination and
cross- examination of a witness, the said witness was not utilized for filling up the gaps in the
evidence of the witness which had been elicited during cross-examination.

12. Mr. Jadhav submitted that both the learned Single Judge as well as the Division Bench of the
High Court had rightly dismissed the appellants' application under Order 18 Rule 17 CPC and the
orders did not merit any interference.

13. In support of his submissions, Mr. Jadhav referred to a Single Bench decision of the Allahabad
High Court in Sunder Theaters Vs. Allahabad Bank, Jhansi (AIR 1999 All. 14), where a similar
question arose and the Court observed that the power of the Court under Order 18 Rule 17 CPC is
discretionary and has to be exercised with the greatest care and only in exceptional circumstances. It
was further observed that under the garb of this rule, the Court ought not to recall a witness at the
instance of a party in order to fill up a lacuna in the evidence already led.
14. Mr. Jadhav, therefore, submitted that the application filed by the appellants under Order 18 Rule
17 CPC had been rightly rejected by the Courts below following the well-established principles as to
invocation of power by a Court under Order 18 Rule 17 CPC.

15. Having heard learned counsel for the respective parties, we are unable to agree with Mr.
Narasimha that both the Single Judge and the Division Bench of the High Court had erred in
rejecting the appellants' application under Order 18 Rule 17 CPC since, according to Mr. Narasimha,
no prejudice would be caused to the respondent as he would be given a chance of cross-examination
after re- examination-in-chief by the plaintiff.

16. In our view, 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. As indicated by the learned Single Judge,
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.

17. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be
exercised by the Court either on its own motion or on an application filed by any of the parties to
the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the
evidence of the witness which has already been recorded but to clear any ambiguity that may have
arisen during the course of his examination. Of course, if the evidence on re-examination of a
witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the
Trial Court to permit recall of such a witness for re-examination-in- chief with permission to the
defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the
situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a
party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within
the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such
case has been made out.

18. We, accordingly, have no hesitation in dismissing the appeal, but without any order as to costs.
The appeal is accordingly dismissed.