Order XVIII Rule 17 CPC — Recall of Witness — Scope and Limitations. (Paras 2–4, 11) Petitioner challenged the order allowing recall of PW.1 for cross-examination. It was contended that Order XVIII Rule 17 CPC cannot be invoked to fill up lacunae in cross-examination and that the application was belated. The Court acknowledged settled law that Order XVIII Rule 17 CPC is not intended to fill lacunae. However, it found that defendant Nos.1 and 2 had not cross-examined PW.1 at all. Ratio Decidendi: While Order XVIII Rule 17 CPC cannot be invoked to fill omissions in evidence, where a necessary party has not cross-examined the principal witness at all, recall may be permitted to ensure effective adjudication of the lis.

advocatemmmohan

Order XVIII Rule 17 CPC — Recall of Witness — Scope and Limitations. (Paras 2–4, 11)

Petitioner challenged the order allowing recall of PW.1 for cross-examination. It was contended that Order XVIII Rule 17 CPC cannot be invoked to fill up lacunae in cross-examination and that the application was belated.

The Court acknowledged settled law that Order XVIII Rule 17 CPC is not intended to fill lacunae. However, it found that defendant Nos.1 and 2 had not cross-examined PW.1 at all.

Ratio Decidendi: While Order XVIII Rule 17 CPC cannot be invoked to fill omissions in evidence, where a necessary party has not cross-examined the principal witness at all, recall may be permitted to ensure effective adjudication of the lis.

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Partition Suit — Necessity of Effective Cross-Examination by Contesting Defendants. (Paras 8–11, 13)

The underlying suit (O.S. No.40 of 2013) is one for partition. Defendant Nos.1 and 2 are central parties against whom substantive relief is claimed. Subsequent purchasers (defendant Nos.3 to 5) have limited role.

The absence of cross-examination by defendant Nos.1 and 2 would impair effective adjudication on merits.

Ratio Decidendi: In partition suits, where principal defendants have not cross-examined the plaintiff, denial of opportunity to cross-examine may prejudice adjudication on merits; procedural rigidity must yield to substantive justice.

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Application of Supreme Court Precedents — Contextual Distinction. (Paras 4, 12)

Reliance was placed on
Vadiraj Nagappa Vernekar v. Sharadchandra Prabhakar Gogate and
Bagai Construction v. Gupta Building Material Store

These authorities hold that recall cannot be used to fill lacunae and that post-amendment CPC mandates continuous trial.

The Court distinguished these precedents, holding them inapplicable to present facts where cross-examination by necessary defendants had not occurred at all.

Ratio Decidendi: Supreme Court decisions restricting recall under Order XVIII Rule 17 CPC do not bar recall where essential cross-examination by necessary parties has not been conducted and recall is required for complete adjudication.

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Supervisory Jurisdiction under Article 227 — Limited Interference. (Paras 7, 14)

The revision was filed under Article 227 of the Constitution. The Court found no perversity or jurisdictional error in the trial Court’s discretion in allowing recall.

Ratio Decidendi: In supervisory jurisdiction under Article 227, interference is unwarranted where trial Court exercises discretion to permit recall for effective adjudication and no patent illegality or perversity is demonstrated.

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Expeditious Disposal — Time-bound Direction. (Para 13)

Considering pendency since 2013, the trial Court was directed to dispose of the suit within eight months.

Ratio Decidendi: Where recall is permitted in an old suit, expeditious disposal directions are necessary to balance procedural fairness with avoidance of delay.

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Final Order

Civil Revision Petition dismissed.
Order dated 12.12.2022 in I.A. No.404 of 2022 in O.S. No.40 of 2013 upheld.
Trial Court directed to dispose of suit within eight months.
No order as to costs.
Pending miscellaneous petitions closed.