Case Note & Summary
The petitioner, Smt. Gangamma, filed a suit for declaration and injunction based on a registered Will executed by her father Thimmanna. The suit was filed against the children of her paternal uncle and her siblings. During the trial, the plaintiff examined herself and closed her evidence. The defendants cross-examined her. Thereafter, the suit was posted for judgment. At that stage, the plaintiff filed an application under Order 18 Rule 17 CPC to recall herself for further examination. The trial court allowed the application, which was challenged by the defendants in the High Court under Article 227 of the Constitution. The High Court held that the trial court's order was erroneous as the application was filed after the plaintiff's evidence was closed and the suit was posted for judgment. The court observed that the power under Order 18 Rule 17 CPC is discretionary and cannot be used to fill up lacunae or to allow a party to adduce additional evidence after the closure of evidence. Allowing the recall would cause prejudice to the defendants, who had already cross-examined the plaintiff. The High Court quashed the trial court's order and dismissed the application.
Headnote
A) Civil Procedure Code - Order 18 Rule 17 - Recalling of witness - Scope - The power under Order 18 Rule 17 CPC to recall a witness is discretionary and cannot be exercised to fill up lacunae or to allow a party to adduce additional evidence after the closure of evidence and when the suit is posted for judgment. The trial court's order allowing recall of the plaintiff for further examination was held to be erroneous as it would cause prejudice to the defendants. (Paras 5-8) B) Civil Procedure Code - Order 18 Rule 17 - Recalling of witness - Prejudice - The application to recall the plaintiff was filed after the plaintiff's evidence was closed and the suit was posted for judgment. The court held that allowing such recall would give an unfair advantage to the plaintiff and cause prejudice to the defendants, who had already cross-examined the plaintiff. (Paras 6-8) C) Civil Procedure Code - Order 18 Rule 17 - Recalling of witness - Timing - The application under Order 18 Rule 17 CPC was filed after the suit was posted for judgment. The court held that the trial court ought not to have entertained the application at that stage, as the plaintiff had already closed her evidence and the defendants had cross-examined her. (Paras 5-8)
Issue of Consideration
Whether the trial court was justified in allowing an application under Order 18 Rule 17 CPC to recall the plaintiff for further examination after the plaintiff's evidence was closed and the suit was posted for judgment.
Final Decision
The High Court allowed the writ petition, quashed the order dated 21.11.2014 passed by the Principal Civil Judge (Jr.Dvn.) Hiriyur in O.S.No.240/2012, and dismissed the application filed under Order 18 Rule 17 CPC.
Law Points
- Order 18 Rule 17 CPC
- Recalling of witness
- Scope of Order 18 Rule 17
- Prejudice to opposite party
- Closure of evidence
- Suit posted for judgment
