Gujarat High Court
Valjibhai Zaverbhai Lathia vs Giriraj Bharatkumar Randeria on 22 July, 2025
NEUTRAL CITATION
C/SCA/6439/2016 ORDER DATED: 22/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6439 of 2016
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VALJIBHAI ZAVERBHAI LATHIA
Versus
GIRIRAJ BHARATKUMAR RANDERIA & ORS.
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Appearance:
MR ABHISHEK M MEHTA(3469) for the Petitioner(s) No. 1
APPEARANCE WITHDRAWN for the Respondent(s) No. 4
MR N P CHAUDHARY(3980) for the Respondent(s) No. 2,3
SERVED BY AFFIX(N) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 22/07/2025
ORAL ORDER
1. Heard learned advocate Mr. Abhishek M. Mehta for the petitioner and learned advocate Mr. N. P. Chaudhary for respondents No. 2 & 3.
2. Though served, none appears for respondent No.1. Initially respondent No.4 was appeared through learned Advocate who retired from the matter and thereafter advocate notice was served upon respondent No.4 but she chosen not to appear. The matter is taken up for hearing.
3. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-
Page 1 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined "(A) Your Lordships may kindly be pleased to admit and allow this petition;
(B) Your Lordships may be pleased to issue a writ in the nature of mandamus or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 28.12.2015 below Exh.394 in Regular Civil Suit No.68 of 2007;
(C) Pending admission, hearing and final disposal of present petition, Your Lordships may be pleased to direct, by way of interim relief, staying the operation and implementation of the impugned order dated 28.12.2015 below Exh.394 in Regular Civil Suit No.68 of 2007 and be pleased to further direct the Ld. Judge not to proceed with the further hearing of the Regular Civil Suit No.68 of 2007;
(D) Your Lordships may be pleased to grant ad interim relief in terms of para 16(C) above;
(E) Any other and further relief/s as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted."
Short facts of the case
4. The petitioner herein is original defendant No.4 of Regular Civil Suit No. 68 of 2007 pending before the Additional Senior Civil Judge, Surat filed by respondent No.4 herein, whereas respondents No.1, 2 & 3 are original defendant Nos. 1, 2 & 3. The suit is filed seeking declaration and injunction in relation to suit property.
4.1 It is the case of the plaintiff that original owner of the suit property namely late Vasantlal Chandulal Randeria Page 2 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined executed Will dated 17.05.1995 in favour of the plaintiff thereby, she become absolute owner of the suit property and as such defendants have no right, title, interest in the suit property.
4.2 The defendants have appeared and contested the suit. After completion of the pleading of the parties, issues were framed by the trial Court below Exh. 190 on 03.08.2011. The trial of the suit has already commenced whereby, evidence of plaintiff was over on 19.02.2013 and thereafter a closing pursis was filed by the plaintiff on 15.02.2013. The defendant No.3 has submitted his oral evidence in form of examination-in-chief below Exh. 243 on 25.02.2013 who first cross examined by other defendants on 12.03.2013, and by plaintiff on 30.03.2013 and 15.04.2013. The defendant No.4 appears to have filed his oral evidence in form of examination-in-chief below Exh. 277 who was also cross examined by the plaintiff. The defendant No.4 has examined Court Commissioner. Thereafter, defendant No.4 has also examined attested witness of the Will executed by said late Vasantlal on 14.07.1999 in favour of defendant No.4.
4.3 The suit reached upto the stage of cross examination of such witness of the said Will and at that stage, plaintiff has appointed a new lawyer in the suit who has submitted the Page 3 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined impugned application filed below Exh. 393 under Order 18 rule 17 of CPC. Further, the plaintiff appears to have filed another application for framing additional issues which was filed below Exh. 393 and having being allowed, challenged it by way of another writ application filed by defendant No.4.
4.4 After hearing the parties at length, the trial Court vide its order dated 28.12.2015 has allowed the impugned application, thereby permitted the plaintiff to lead her evidence by re-opening the stage of leading her evidence as prayed in the impugned application albeit, imposed token cost of Rs. 1,500/- to be paid by the plaintiff to the defendants. It has been further mentioned in the aforesaid order that the impugned application filed in midst of cross examination of the witness to the Will (Exh.379), the plaintiff was directed to first complete cross examination of such witness before leading her evidence. The defendant No.4 is aggrieved with by the aforesaid impugned order, thus challenged by way of the present writ application.
Submission of the petitioner- defendant No.4 5.0 Learned advocate Mr. Abhishek Mehta for the petitioner would submit that the plaintiff has misused the process of law by filing the impugned application. He would Page 4 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined further submit that by change of her lawyer, noticing certain lacuna on the part of the plaintiff remained in her evidence, to fill such lacuna, the impugned application came to be filed which could not have been allowed by the trial Court.
5.1 Learned advocate Mr. Mehta would further submit that the trial Court has exceeded its jurisdiction so vested in it, thereby, wrongly exercised its jurisdiction by completely lost sight of and as such misunderstood Order 18 rule 17 of CPC. He would further submit that at relevant point of time, the plaintiff was having an ample opportunity to lead her evidence including examination of witness to the Will, of which the plaintiff is relying upon but having not done so before closing her evidence, at the stage of cross examination of witness of defendant No.4, no such permission could have been granted to the plaintiff.
5.2 Learned advocate Mr. Mehta would further submit that while the plaintiff was already examined and cross examined, the question of recalling of plaintiff and her witness would not arise and as such the trial Court has without appreciating the conduct of the plaintiff and so also misinterpreting the judgment of the Hon'ble Apex Court wrongly allowed the impugned application.
Page 5 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined 5.3 Learned advocate Mr. Mehta would further submit that the right to recall any witness, as envisaged under Order 18 Rule 17 of the CPC, cannot be exercised merely to fill up lacuna in a party's case. As per the settled legal position, such a recourse may be adopted only in exceptional circumstances, where the Court deems it necessary for seeking clarification on any issue. It is submitted that no such case has been made out by the plaintiff in the present matter.
5.4 Learned advocate Mr. Mehta would further submit that defendants No. 2 to 4 have already been examined and cross-examined by plaintiff, and even the Court Commissioner has been examined at the instance of defendant No. 4. It is only during the midst of the cross- examination of the attesting witness to the Will that the plaintiff changed her advocate and thereafter filed the present impugned application. It is submitted that this sequence of events clearly suggest that, upon becoming aware of the defence taken by the defendants and the evidence led by them, the plaintiff realized certain lacunae remained in her own evidence and has now sought to remedied the same through impugned application. It is further submitted that permitting such a recourse would undermine the sanctity and orderly conduct of the trial.
Page 6 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined 5.5 To buttress his argument, learned advocate Mr. Mehta would refer and rely upon the decision of this Court in the case of Abudulrahim Mamadbhai Parasara Vs. Rudabhai Jivanbhai Bambhava passed in Special Civil Application No. 14795 of 2024 dated 16.01.2025 reported in 2025(0) AIJEL- HC 250650.
5.6 Making the above submission, learned advocate Mr. Mehta would request this Court to allow the present writ application.
Submission of the respondents- defendants No. 2 & 3
6. Learned advocate Mr. N. P. Chaudhary for the respondents would submit that the trial Court has committed serious error of law and as such there is jurisdictional error committed by the trial Court while granting impugned application, which requires to be quashed and set aside by this Court. He would further submit that though the defendant No 2 & 3 have supported the case of defendant No.4 but at the same time, as an officer of the Court, he would submit that to fill any lacuna in the evidence of the plaintiff, the impugned application could not have been granted by the trial Court, otherwise, there would not Page 7 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined be an sanctity of trial of the suit.
6.1 Making the above submission, learned advocate Mr. Chaudhary would request this Court to reject the present writ application.
Point for determination Whether in the facts and circumstances of the present case, the impugned order passed by the trial Court, whereby right of plaintiff to lead evidence is re-opened at the stage where cross examination of witness of defendant No.4 was going on in the suit, is it proper exercising of the power so vested with the trial Court or not ?
Analysis
7. The facts which are narrated herein above are not in dispute. It is undisputed fact that the impugned application came to be filed by the plaintiff when she has changed her lawyer when her evidence and evidence of defendant No. 2 & 3 were closed, even cross examination of defendant No. 4 and one his witness got over. As such impugned application filed, at the stage of cross examination of the witness to the Will which was relied upon by the defendant No.4. So, Page 8 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined virtually entire evidence of both sides going to over, at that stage, impugned application came to be filed.
7.1 There is no satisfactory explanation forthcoming from the plaintiff's side as to why the need arose to file the impugned application. It is only stated as vague and as general statement that, in order to observe the principles of natural justice, and owing to her lack of legal knowledge and qualifications, she could not lead her evidence at given point of time then, be permitted to lead her evidence by re- opening her right. It is further stated that no prejudice would be caused to the defendants. Such a bald and sweeping statement would not justified her claim and it would not inspire confidence or warrant indulgence of the Court. The grounds which are narrated in the impugned application, is not sustainable in law to allow the prayer made in the impugned application.
7.2 It appears that sole consideration for filing the impugned application was a change of plaintiff's lawyer. It is clear that a new lawyer of plaintiff after screening the entire oral evidence of plaintiff/ defendants must have found certain things left out at the hands of the plaintiff when her evidence was recorded and to fill such lacuna, the impugned application came to be filed to reopen her right to lead Page 9 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined evidence and to examine the witness.
7.3 The claim of plaintiff in the plaint and relief sought in the submit is entirely on basis and on the strength of the alleged Will executed on 17.05.1995 by late Vasantlal, but for any reason best known to plaintiff, witness to such Will were not examined to prove it in accordance with law. Whereas, the witness to the Will on which defendant No.4 is relying upon, has been examined by the defendant No.4 whose cross examination reached upto midway, when the impugned application came to be filed.
7.4 Thus, it is evident that the impugned application came to be filed solely with the intent to fill the lacuna left by the plaintiff when completed her evidence. It is not the case of the plaintiff that no sufficient opportunity was given to her to lead her evidence including the examination of her witnesses.
7.5 Once the plaintiff's right to lead evidence had already concluded way back on 15.02.2013 and then after much water has flown and in between defendants have been examined / cross examined by the plaintiff, such impugned application is nothing but amounts to re-trial of the suit which is never permissible in law.
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8. At this stage, it would be appropriate to refer the decision of this Court in the case of Abudulrahim Mamadbhai Parasara (supra), wherein this Court in similar set of factual circumstances and after considering the ratio laid down by the Hon'ble Apex Court in the case of K.K. Velusamy Vs. N. Palanisamy reported in 2011 (11) SCC 275 and Vediraj Naggappa Vernekar (dead) through LRs. Vs. Sharadchandra Prabhakar Gogate reported in 2009(4) SCC 410, observed and held thus:-
"13. This Court would like to refer to the provisions of law under which the impugned applications were filed, which read as follows:
ORDER XVIII RULE 2 OF THE CODE, 1908 "2. Statement and production of evidence.--
(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.
(3) The party beginning may then reply generally on the whole case.
3 [(3A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings Page 11 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined written arguments in support of his case to the Court and such written arguments shall form part of the record.
(3B) A copy of such written arguments shall be simultaneously furnished to the opposite party.
(3C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjourment.
(3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit.] *[(3A) A party shall, within four weeks prior to commencing the oral arguments, submit concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record.
(3B) The written arguments shall clearly indicate the provisions of the laws being cited in support of the arguments and the citations of judgments being relied upon by the party and include copies of such judgments being relied upon by the party.
(3C) A copy of such written arguments shall be furnished simultaneously to the opposite party.
(3D) The Court may, if it deems fit, after the conclusion of arguments, permit the parties to file revised written arguments within a period of not more than one week after the date of conclusion of arguments.
(3E) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment.
(3F) It shall be open for the Court to limit the time for oral submissions having regard to the nature and complexity of Page 12 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined the matter.]"
ORDER XVIII RULE 17 OF THE CODE, 1908
17. Court may recall and examine witness.--The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.
SECTION 151 OF THE CODE, 1908
151. Saving of inherent powers of Court.-- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
SECTION 135 OF THE EVIDENCE ACT
135. Order of production and examination of witnesses. The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.
14. So far as the first impugned application filed by the petitioner below Exhibit 80 is concerned, it was filed under Order XVIII Rule 17 read with Section 151 of the Code, 1908, for recalling the plaintiff for further cross-examination. It we see such provisions, it becomes clear that discretion is available to the Court to recall any witness at any stage of the suit and put such questions to him as the Court thinks fit. Section 151 gives inherent power to the Trial Court to make such orders as may be necessary for the ends of justice and/or to prevent abuse of the process of the Court.
14.1 The power of recalling and examining the witness at any stage of the suit by the Court is discretionary, but such discretion cannot be exercised arbitrarily. By now, the law on the issue involved in the impugned application filed below Page 13 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined Exhibit 80 is well settled, whereby it has been clearly held by the Hon'ble Supreme Court of India that the main purpose of Order XVIII Rule 17 of the Code, 1908, is to enable the Court, while trying a suit, to clarify any doubt it may have with regard to the evidence led by the parties. It is made clear in express terms that such provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.
14.2 If ample opportunity was available to the parties to cross-examine witnesses on each and every aspect, and due to any reason, including inadvertence on the part of the learned advocate of the concerned party, who, according to such party, failed to effectively cross-examine the witness concerned, such a witness cannot be recalled to fill the lacuna or omissions in the evidence of the witness, who has already been examined. Even according to this Court, the power under Section 151 of the Code, 1908, is not an unfettered or unguided power to be exercised by the Civil Court against the provisions of law but rather exercised to advance substantial justice.
15. There is a clear averment made in the impugned application filed by the petitioner - Defendant below Exhibit 80 that after the change of lawyer, the new lawyer noticed that the plaintiff was not properly cross-examined by the earlier advocate of the petitioner - defendant. According to the defendant, there is a specific denial of certain facts and defenses that are taken out in the written statement in Para 7 (G), (H), (I), and (J), but there was no cross-examination of the plaintiff on such defenses raised in the written statement.
16. For the aforesaid reason only, the defendant wants to recall the plaintiff for cross-examination, so he can be further cross-examined on the aforesaid defenses which are already raised by the defendant in his written statement. It was further contended in the impugned application that if the defendant is not allowed to further cross-examine the plaintiff as prayed for, the defense of the defendant will be seriously jeopardized.
17. Such reasons, as set out in the impugned application, can hardly be considered by the Court while exercising its power under Order Page 14 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined XVIII Rule 17 read with Section 151 of the Code, 1908. This Court, after considering the averments made in theimpugned application, is clearly of the view that the defendant, after change of his lawyer, wants to fill up the lacuna on his part while cross-examining the plaintiff by his earlier lawyer.
18. It is worth to note that the defendant had an ample opportunity to cross-examine the plaintiff on every aspect of the matter, including the defenses set out in his written statement. For any reason, if the earlier lawyer of the defendant did not effectively cross-examine the plaintiff, at this stage, the witness - plaintiff cannot be recalled for further cross-examination to fill up the omissions on the part of the petitioner - defendant.
19. If such a request made by the defendant is allowed, it would open a Pandora's box, as in every civil trial, either party may start using such practices to request the Court to recall witnesses to put certain questions, which were left out during cross-examination. This cannot be permitted by resorting to the discretionary power of the Civil Court under Order XVIII Rule 17 or Section 151 of the Code, 1908.
20. At this stage, the first judgment cited by the learned advocate for the petitioner, the Hon'ble Supreme Court of India in the case of K K Velusamy (Supra), needs to be considered. The learned advocate for the petitioner - defendant has emphasized and taken this Court through paragraphs 4, 9 to 11 and 14 to 16, thereby submitted that, as per the aforesaid decision, if the evidence sought to be produced would either assist in clarifying the evidence led on the issues or lead to a just and effective adjudication, it requires to be taken note of by the Trial Court while adjudicating the application.
21. The relevant observations made by the Hon'ble Supreme Court of India in the case of K K Velusamy (Supra), reads as under:-
"4. The suit was filed on 26.3.2007. The written statement was filed on 12.9.2007. Thereafter issues were framed and both Page 15 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined parties led evidence. On 11.11.2008 when the arguments were in progress, the appellant filed two applications (numbered as IA No.216/2009 and IA No.217/2009). The first application was filed under section 151 of the Code of Civil Procedure (`Code' for short) with a prayer to reopen the evidence for the purpose of further cross-examination of Plaintiff (PW1) and the attesting witness Eswaramoorthy (PW2). IA No.217/2009 was filed under Order 18 Rule 17 of the Code for recalling PWs.1 and 2 for further cross examination. The appellant wanted to cross- examine the witnesses with reference to the admissions made during some conversations, recorded on a compact disc (an electronic record). In the affidavits filed in support of the said applications, the appellant alleged that during conversations among the appellant, respondent and three others (Ponnuswamy alias Krishnamoorthy, Shiva and Saravana Kumar), the respondent-plaintiff admitted that Eswaramoorthy (PW2) had lent the amount (shown as advance in the agreement of sale) to the appellant through the respondent; and that during another conversation among the appellant, Eswaramoorthy and Shiva, the said Eswaramoorthy (PW2) also admitted that he had lent the amount (mentioned in the agreement of sale advance) through the respondent; that both conversations were recorded by a digital voice recorder; that conversation with plaintiff was recorded on 27.10.2008 between 8 a.m. to 9.45 a.m. and the conversation with Eswaramoorthy was recorded on 31.10.2008 between 7 to 9.50 p.m.; and that it was therefore necessary to reopen the evidence and further cross-examine PW1 and PW2 with reference to the said admissions (electronically recorded evidence) to demonstrate that the agreement of sale was only a security for the loan. It is stated that the Compact Disc containing the recording of the said conversations was produced along with the said applications.
9. There is no specific provision in the Code enabling the parties to re- open the evidence for the purpose of further examination-in- chief or cross- examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of Page 16 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re- open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.
10. The respondent contended that section 151 cannot be used for re- opening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition.
We however agree that section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of section 151 has been explained by this Court in several decisions (See : Padam Sen V/s. State of UP-AIR 1961 SC 218; Manoharlal Chopra V/s. Seth Hiralal - AIR 1962 SC 527; Arjun Singh V/s. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. V/s. Kanhay Lal - AIR 1966 SC 1899; Nain Singh V/s. Koonwarjee - 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. V/s. Union of India - AIR 1976 SC 1152; Jaipur Mineral Development Syndicate V/s. Commissioner of Income Tax, New Delhi - AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences V/s. C Parameshwara - 2005 (2) SCC 256; and Vinod Seth V/s. Devinder Bajaj - 2010 (8) SCC 1). We may summarize them as follows:
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code Page 17 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co- extensive with the need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely Page 18 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.
11. The Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a late stage, after the conclusion of his evidence if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1.7.2002. The deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence.
14. Neither the trial court nor the High court considered the question whether it was a fit case for exercise of discretion under section 151 or Order 18 Rule 17 of the Code. They have not considered whether the evidence sought to be produced would either assist in clarifying the evidence led on the issues or lead to a just and effective adjudication. Both the courts have mechanically dismissed the application only on the ground that the matter was already at the stage of final arguments and the application would have the effect of delaying the proceedings.
15. The appellant - defendant has taken a consistent stand in his reply notice, written statement and evidence that the agreement of sale was executed to secure a loan of Rs.150,000, as the respondent insisted upon execution and registration of such agreement. If after the completion of recording of evidence, PW1 and PW2 had admitted during conversations that the amount paid was not advance towards sale price, but only a Page 19 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined loan and the agreement of sale was obtained to secure the loan, that would be material evidence which came into existence subsequent to the recording of the depositions, having a bearing on the decision and will also clarify the evidence already led on the issues. According to the appellant, the said evidence came into existence only on 27.10.2008 and 31.10.2008, and he prepared the applications and filed them at the earliest, that is on 11.11.2008. As defendant could not have produced this material earlier and if the said evidence, if found valid and admissible, would assist the court to consider the evidence in the correct perspective or to render justice, it was a fit case for exercising the discretion under section 151 of the Code. The courts below have not applied their minds to the question whether such evidence will be relevant and whether the ends of justice require permission to let in such evidence. Therefore the order calls for interference.
16. We may add a word of caution. The power under section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led Page 20 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application."
22. The ratio of the aforesaid decision in the case of K.K. Velusamy (Supra) would be that if any evidence sought to be produced would either assist in clarifying the evidence led on the issues or lead to just and effective adjudication, then the discretion requires to be exercised by the Trial Court by granting permission to recall the witnesses.
23. At the same time, the Hon'ble Supreme Court of India has put a word of caution which requires to be taken note of by every Court dealing with an application filed under Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure, 1908. It has been clearly observed in para 16 of the case K.K. Velusamy (supra) that the aforesaid power is not intended to be used routinely or merely for the arguing, and if it will do so, it would defeat the very purpose of various amendments made to the Code to expedite trials. It has been observed that when the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the Court in clarifying the evidence on the issues and rendering justice, and the Court is satisfied that non-production earlier was for valid and sufficient reason, the Court may exercise its discretion to recall the witnesses or permit fresh evidence.
24. It has also been clearly observed that if the application is found to be mischievous, frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.
26. When the Hon'ble Supreme Court of India, in clear terms, has held that if the application is found to be mischievous, frivolous or to cover up negligence or lacunae, it should be rejected with costs, then this case is a classic example of covering up negligence and/or lacunae on the part Page 21 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined of the defendant while cross-examining the plaintiff.
28. It is worth to note the decision of the Hon'ble Supreme Court of India in the case of Vadiraj Naggappa Vernekar (Supra), wherein the scope and ambit of the power of the Trial Court while adjudicating an application filed under Order XVIII Rule 17 have been enunciated, which read as under:
"25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.
26. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared.
27. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after the cross-examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed.
28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate Page 22 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.
29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination.
30. of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the trial court to permit recall of such a witness for re-examination-in- chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case."
28.1 After going through the aforesaid decision in the case of Vadiraj Naggappa Vernekar (Supra), it is now well-settled that the power to recall a witness is available to the Court. However, such power is to be invoked not to fill up lacunae in the evidence of witnesses, which has been already recorded but to clear any ambiguity that may have arisen during the course of their examination.
28.2 Moreover, it has been held that such power is to be sparingly exercised and not as a general rule on the ground that the recall and re-examination of a witness would not cause prejudice to the parties. This is not the scheme or intention behind enacting Order XVIII Rule 17 of the Code of Civil Procedure, 1908. The prejudice caused to one of the parties is not a ground for exercising the power by the Court, but for a limited purpose and in a limited situation as indicated above, such power requires to be exercised by the Court, which is not at all germane in the present case.
Page 23 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined 28.3 It is worth to note that such power can be exercised at any stage of the proceedings by the Court. However, it is also worth to note that the cross-examination of the plaintiff was over on 16th September 2021, and the cross-examination of the defendant got over on 14th July, 2023, whereas the application was filed on 15th March, 2024 after a change of awyer by the defendant. Therefore, until the evidence of the plaintiff got over and the cross- examination of the defendant was also over, and the defendant also tendered a list of his witnesses on 19th October, 2023, it was not felt by defendant to recall the plaintiff but due to change of lawyer, the impugned application came to be filed."
(emphasis supplied)
9. Considering all these dates and events, the impugned application is nothing but an attempt to fill up the lacunae on the part of the plaintiff which appears to have remained during her evidence, merely her erstwhile lawyer remained negligent for not leading appropriate evidence would not be a ground to allow her to lead evidence again by re-open her right which was closed much earlier. To cure defect remained in plaintiff's evidence, such power could not have been exercised by trial Court, otherwise, every litigant realizing one or other lacunae in his/her evidence start making such application then it would not only delay completion of trial but would frustrate sanctity of trial so far conducted.
10. It is true that this Court should sparingly exercise its power under Article 227 of the Constitution of India, but when it finds that trial Court has exceeded its jurisdiction so vested in it by granting any relief against settled principles Page 24 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined of law, to keep the civil Court within its bound, needs to exercise such supervisory power. [See- Waryam Singh v/s Amarnath - AIR 1954 SC 215] Conclusion
11. In view of the aforesaid, the trial Court has passed erroneous, perverse and arbitrary impugned order thereby, egregiously erred in re-opened the right of plaintiff to lead evidence without arrived at the finding that to have a just finding and or to clarify any evidence, same was required to re-open.
12. This Court is firmly of the opinion that after change of plaintiff's lawyer, to fill up lacunae remained in her evidence and to cover up such negligence, impugned application came to be filed by plaintiff.
13. According to this Court, the impugned order dated 28.12.2015 below Exh.394 in Regular Civil Suit No.68 of 2007 passed by Additional Senior Civil Judge, Surat, suffers from gross irregularity, illegality and trial Court has exceeded its jurisdiction so vested in it, thereby, requires to be quashed and set aside, which is hereby quashed and set aside. Consequently, the impugned application filed by the plaintiff below Exh. 394 in Regular Civil Suit No. 68 of 2007 is hereby Page 25 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025 NEUTRAL CITATION C/SCA/6439/2016 ORDER DATED: 22/07/2025 undefined rejected.
14. In view of the above conclusion, the present writ application is hereby allowed. No order as to costs. The interim relief granted earlier stands vacated forthwith. It is made hereby clear that the trial Court to proceed with the suit at the earliest, albeit in accordance with law, without being influenced by any of observations so made by this Court herein above.
(MAULIK J.SHELAT,J) SALIM/ Page 26 of 26 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Tue Jul 29 22:24:09 IST 2025