Delhi High Court Upholds Dismissal of Petitioners' Application to Recall Witness

Court rules that Order XVIII Rule 17 CPC is not for parties to fill evidential gaps; application deemed as attempt to address lacunae post-final arguments.

In a recent decision, the Delhi High Court, presided over by Justice Girish Kathpalia, upheld the trial court's dismissal of an application filed by petitioners Nikita Jain alias Nikki Jain and another, seeking to summon a witness under Order XVIII Rule 17 of the Civil Procedure Code (CPC). The application was filed during the ongoing proceedings of a suit challenging the validity of a registered sale deed and claiming title over a disputed property.

The petitioners had sought to summon Umesh Sharma, an attesting witness, to prove a Will that purportedly supported their claim of ownership. However, the trial court dismissed this application, observing that it was an attempt to address gaps in the petitioners' case after final arguments had already commenced.

Justice Kathpalia, after hearing the petitioners' counsel, Mr. Biraja Mahapatra, and others, ruled that Order XVIII Rule 17 CPC is designed for the court to recall witnesses to clarify ambiguities in evidence, not for parties to examine or cross-examine witnesses to fill gaps in their case. The court emphasized that the provision should be used sparingly and only in exceptional circumstances, reiterating that the onus of proving the Will as forged lay with the respondent, not the petitioners.

The judge referenced the Supreme Court's decision in "Shubhkaran Singh v. Abhayraj Singh," which highlighted the exclusive power of the court to recall and examine witnesses for clarification, without the involvement of parties unless with the court's leave. Justice Kathpalia noted that the trial court had found no ambiguity in the existing evidence that necessitated recalling the witness.

In dismissing the petitioners' application, the court underscored that the move to summon Umesh Sharma was belated and intended to plug evidential loopholes, contrary to the purpose of Order XVIII Rule 17 CPC. The ruling affirms the trial court's discretion and underscores the importance of adhering to procedural rules designed to ensure fair and efficient judicial processes.

Bottom Line:

The provision under Order XVIII Rule 17 CPC is not intended for parties to fill lacunae in their case but is for the court to recall witnesses for clarification in evidence where ambiguities exist.

Statutory provision(s):  

• - Order XVIII Rule 17 of the Civil Procedure Code, 1908  
• - Section 165 of the Evidence Act, 1872

Nikita Jain Alias Nikki Jain v. Ram Phal Alias Ram Pal, (Delhi) : Law Finder Doc Id # 2815722