Order XVIII Rule 17 CPC Cannot Fill Gaps in Evidence: Supreme Court
Supreme Court limits recall of witnesses under CPC
The Supreme Court has held that the power under Order XVIII Rule 17 of the Civil Procedure Code (CPC) is discretionary and primarily intended to help the court clarify doubts in evidence. It cannot be invoked as a routine mechanism to allow parties to fill omissions or lacunae in evidence already led.
Order XVIII Rule 17 of the CPC deals with the court's power to recall a witness who has already been examined.
A Bench of Justices S V Bhatti and N V Anjaria emphasised that the absence of prejudice to the other side is not a valid ground for invoking this provision. The power must be exercised sparingly and only in exceptional circumstances.`
“A frequent resort to use of Order XVIII Rule 17, CPC, has the tendency to develop into an abuse of process of the court and procrastination of litigation. The court should not allow this provision to become a handy tool for a party to the suit proceedings to prolong the litigation,” the Bench said.
Dealing with an appeal filed by K Bharathamma, the Bench held that recalling a witness to fill evidentiary gaps or lacunae is impermissible under Order XVIII Rule 17.
The Bench said the provision does not empower the court to recall a witness for the purpose of cross-examination by any party. Its scope is strictly limited to the court’s own exercise of power to examine a witness for clarification.
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Under Section 165 of the Evidence Act, a judge may, to discover or obtain proof of relevant facts, ask any question at any time to a witness. However, parties cannot raise objections or cross-examine the witness on such answers without the leave of the court.
When read with Order XVIII Rule 17 CPC, this shows that the power of recall and re-examination is essentially vested in the court, the Bench said.
What is the purpose of Order XVIII Rule 17 CPC?
The Bench said the right under the provision to put a question at any stage of the suit or recall any witness for that purpose is given to the court. The court can put questions to the witness, while cross-examination on the answers is ordinarily not open without its leave.
The scheme and object of the provision show that the power to recall a witness is a matter of discretion for the court.
Court pointed out that Order XVIII Rule 17 CPC cannot be invoked on the broad ground that recalling a witness or reopening the evidence would not prejudice the other side.
Summing up the scope and applicability of the provision, the Bench said it is a power and discretion vested in the court to aid the adjudication of a suit. It is a facilitator for the court and has to be used within the discipline of the trial and the rules of evidence.
“The parameters for invocation and use of Order XVIII Rule 17, CPC, are thus well-established. It is not meant for a routine exercise. Nor it is a provision which can be employed on mere asking by a party, unless the court wants any clarification on any aspect of the evidence already led in the proceedings,” the Bench said.
Though the provision can be invoked at the instance of a party, it is essentially a discretionary power to be exercised by the court itself. It cannot be used either by a party or by the court to fill gaps, omissions or lacunae in evidence, the court added.
Order XVIII Rule 17 cannot be used to improve evidence
The Bench also said that evidence already led and concluded by a party cannot be improved by reopening the evidence or recalling a witness under this provision.
“The provision is not a tool whereby a party can embellish the evidence, fill in the omissions therein or refine the evidence at a later stage. Also, it is no valid yardstick to be employed for permitting reopening the evidence or allowing recalling of a witness that such a course would not prejudice any party,” the Bench said.
Court therefore held that the directions passed by the Telangana High Court did not fall within the scope and parameters of the powers exercisable under Order XVIII Rule 17 CPC.
The Bench further found that the high court’s direction to complete the cross-examination of PW-1 within a stipulated time was completely beyond the scope of Order XVIII Rule 17 CPC.
Why did the Supreme Court reject the recall of the witness?
Court noted that the plaintiffs had filed interim applications under Order XVIII Rule 17 CPC to recall witnesses and sought to produce documents under Order VII Rule 14 CPC read with Section 151 CPC.
According to the Supreme Court, the applications effectively sought to fill gaps in evidence that had already been led and closed, by using the provision to cure lacunae. This was not permissible, Court held.
The challenge before the Supreme Court was against a common order dated September 15, 2023, passed by the high court for the State of Telangana at Hyderabad, disposing of three civil revision petitions filed by the defendant No.1-appellant.
The revision petitions arose from the trial court’s order allowing an application to recall a witness for marking a document in evidence.
The suit was instituted in 2010 by the plaintiffs, who sought a declaration that they were the absolute owners of the suit properties in R.R. District.
In his written statement, defendant No.1 pleaded that he was a bona fide purchaser and had purchased two plots through two registered sale deeds. He claimed to be their lawful owner in possession and said that no dispute had been raised regarding his title over the plots. The plaintiffs, however, claimed that they had been residing in the suit properties since 1970.
At the stage when final arguments were being heard and the appellant’s arguments had concluded, the respondents filed interim applications seeking to reopen the evidence, lead further evidence and receive documents by condoning the delay.
The Supreme Court ultimately allowed the appeal and set aside the high court’s order.
Case Title: K Bharathamma Vs Bandaru Sakku Bai And Others
Bench: Justices S V N Bhatti and N V Anjaria
Date of Judgment: August 4, 2026