Case Note & Summary
The case involved an appeal concerning the recall of a witness, Sadanand Shet, who had provided affidavit evidence in a suit regarding the estate of Dr. Sudha Gogate. The plaintiffs sought to recall Shet to address certain facts they claimed were inadvertently omitted from his affidavit. The learned Single Judge of the Bombay High Court dismissed their application, stating that it was an attempt to fill a lacuna in the evidence after cross-examination had been completed. The Division Bench upheld this decision, leading to the present appeal. The appellant's counsel argued that Order 18 Rule 17 of the Code of Civil Procedure, 1908 (CPC) allowed for the recall of witnesses at any stage to ensure complete justice. They cited various precedents to support their claim that the court could recall witnesses not only on its own motion but also upon application by the parties. Conversely, the respondent's counsel contended that the application was an impermissible attempt to fill gaps in the witness's evidence, which was known at the time of the affidavit's preparation. The court analyzed the provisions of Order 18 Rule 17 CPC, emphasizing that the rule's purpose is to clarify ambiguities rather than to introduce new evidence post-examination. The court ultimately dismissed the appeal, affirming that the power to recall witnesses should not be used to address previously known omissions. The appeal was dismissed without costs.
Headnote
A) Civil Procedure - Recall of Witness - Scope of Order 18 Rule 17 CPC - The court clarified that the provisions of Order 18 Rule 17 CPC are not intended to fill up omissions in the evidence of a witness who has already been examined. The court held that the power to recall a witness should be exercised sparingly and not merely to address gaps identified post cross-examination (Paras 15-17).
Issue of Consideration
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.
Final Decision
The Supreme Court dismissed the appeal, affirming the lower courts' decisions that the application to recall the witness was an impermissible attempt to fill gaps in the evidence after cross-examination had been completed.
Law Points
- Recall of witness
- affidavit evidence
- Order 18 Rule 17 CPC
- judicial discretion
- filling lacunae
