Case Note & Summary
The matter arose from a civil revision petition filed under Article 227 of the Constitution of India challenging an order dated 12.12.2022 passed by the XV Additional District and Sessions Judge, Krishna District at Nuzvid in I.A.No.404 of 2022 in O.S.No.40 of 2013. The underlying suit was filed for partition of suit schedule property. The petitioner and the first defendant were children of the second defendant. The plaintiff alleged that defendant Nos.1 and 2 indulged in clandestine sale of 1,500 square feet of open terrace area on the first floor in Item No.2 of the suit schedule property, having sold the same to defendant Nos.3 to 5 and permitted them to construct a house. The plaintiff was examined as PW1. During trial, defendant No.1's counsel was absent and the court recorded nil cross-examination on behalf of defendant No.1. PW1 was cross-examined by counsel for defendant Nos.3, 4, 7 and 9. Thereafter, defendant No.1 changed counsel and filed I.A.No.404 of 2022 under Order XVIII Rule 17 CPC seeking to recall PW1 for cross-examination. The trial court allowed the application, observing that a fair opportunity ought to be granted to cross-examine PW1 despite abnormal delay. The petitioner, aggrieved by the order allowing recall, filed the civil revision petition. The petitioner contended that the application was filed at a belated stage to fill up lacunae in evidence, which is impermissible under Order XVIII Rule 17 CPC. The petitioner relied on Vadiraj Nagappa Vernekar (dead) Through L.Rs. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 and Bagai Construction Through Its Proprietor Lalit Bagai Vs. Gupta Building Material Store, (2013) 14 SCC 1 to argue that recall cannot be used to fill omissions and that continuous recording of evidence is required. The respondent Nos.4, 6 to 9 submitted that they adopted the counter filed by the petitioner in I.A.No.404 of 2022. The High Court framed the issue whether it could set aside the trial court's order. It noted that the suit was for partition, that the plaintiff and first defendant were children of the second defendant, and that the plaintiff alleged clandestine sale of terrace area. The court observed that the affidavit in support of recall disclosed that defendant No.1 could not cross-examine PW1 due to counsel's absence and nil cross-examination was recorded. It also observed that PW1 was cross-examined by other defendants. The High Court noted that the contesting defendants 1 and 2 had not cross-examined the plaintiff and that defendant Nos.3 to 5, being subsequent purchasers, were not necessary parties for deciding the plaintiff's entitlement to partition. However, the provided judgment excerpt ends before the final decision is recorded. The court did not explicitly state the final order in the available text. Interim stay had been granted earlier on 19.12.2022 and extended from time to time till 29.10.2024.
Headnote
A) Civil Procedure - Recall of Witness - Order XVIII Rule 17, Code of Civil Procedure, 1908 - Scope of power to recall witnesses - The provision is intended to enable the court to clarify doubts about evidence and not to allow parties to fill up omissions; applications for recall should be allowed only in compelling and acceptable circumstances and continuous recording of evidence should be maintained - The trial court allowed recall of PW1 for cross-examination despite abnormal delay; the High Court examined whether such order should be set aside; the excerpt ends before final direction (Paras 2-4, 10-11). B) Civil Procedure - Delay in Filing Recall Application - Order XVIII Rule 17, Code of Civil Procedure, 1908 - Abnormal delay alone may not bar recall if party had no opportunity to cross-examine - The trial court permitted recall despite observing abnormal delay; the High Court noted that contesting defendants had not cross-examined plaintiff and fair opportunity was necessary (Paras 3, 10).
Issue of Consideration
Whether this Court can consider the case of the petitioner and set aside the order passed by the learned XV Additional District and Sessions Judge, Krishna District at Nuzvid in IA No. 404 of 2022 in OS No. 40 of 2013?
Final Decision
Not mentioned in the provided judgment excerpt; the excerpt ends before the final order is recorded.
Law Points
- Order XVIII Rule 17 CPC is intended to enable the court to clarify doubts about evidence
- not to fill up omissions
- applications for recall of witnesses should be allowed only in compelling and acceptable circumstances
- recording of evidence should be continuous and followed by arguments and final decision
- applications for adjournments
- reopening
- and recalling witnesses should not be used to fill lacunae
