Courts Cannot Allow Recall of Witness to Fill Gaps in Cross-Examination: Calcutta High Court

Litigants Must Exercise Due Diligence—Judicial Process Cannot Be Manipulated to Correct Omissions - In a decisive ruling Calcutta High Court rejected an attempt by the defendant to recall a witness after the conclusion of cross-examination. Justice Shampa Sarkar, upholding the City Civil Court's refusal to entertain the recall application under Section 151 of the Code of Civil Procedure, ruled that litigants cannot be permitted to manipulate judicial proceedings to cover their own lapses.
"The law does not permit a party to recall a witness merely because certain questions were omitted during cross-examination. If such a practice were allowed, trials would never conclude, and the judicial process would be reduced to an endless cycle of litigation," the court observed.
"Attempt to Reopen Settled Issues Cannot Be Permitted Under the Guise of Witness Recall"
The case arose out of Title Suit No. 35486 of 2014, where the plaintiff, Karnani Properties Limited, sought recovery of possession from Tirupati Vinimoy Private Limited, treating the defendant as a trespasser. The defendant, which had been occupying the property under an alleged lease agreement, sought to recall the plaintiff’s witness (PW1) for further cross-examination, claiming that certain key questions regarding the registration of the lease deed had not been asked earlier.
The trial court rejected the recall application, holding that the defendant had ample opportunity to put forth these questions during the original cross-examination but failed to do so. The trial court further observed that allowing recall at this stage would only serve to fill in gaps in evidence, which is prohibited by law.
The High Court agreed with this reasoning, stating, "Recalling a witness merely to ask questions that should have been put during cross-examination would set a dangerous precedent. The law does not allow parties to re-examine witnesses for the purpose of repairing defects in their own case."
"Repeated Attempts to Introduce Rejected Amendments Cannot Be Allowed"
The defendant had previously made two attempts to amend its written statement to include the registration of the lease deed, but both attempts were rejected by the trial court, upheld by the High Court, and ultimately dismissed by the Supreme Court.
Despite these failures, the defendant now sought to introduce the same facts through further cross-examination of PW1, effectively bypassing the earlier judicial rulings. The High Court strongly condemned this strategy, stating, "The principle of res judicata applies not only to successive proceedings but also to different stages of the same litigation. A party cannot be allowed to achieve indirectly what it has failed to do directly through rejected amendments."
The court further warned against misuse of procedural mechanisms to delay litigation, emphasizing, "Judicial discipline requires that litigants exercise due diligence at the appropriate stage. If procedural loopholes are exploited to delay proceedings, it would amount to an abuse of the process of law."
"Registration of Lease Does Not Justify Recall of Witness"
The defendant argued that the registration of the lease deed on January 8, 2018, significantly impacted the maintainability of the suit and that further cross-examination was necessary to highlight this fact.
The High Court rejected this argument, pointing out that the lease registration was completed before PW1’s cross-examination in June 2018, and therefore, the defendant had already had the opportunity to raise the issue at the relevant time.
"If the registration of the lease deed was a crucial issue, the defendant should have raised it during the cross-examination of PW1. The belated attempt to recall the witness now only demonstrates a lack of due diligence on the defendant’s part," the court observed.
"Belated Recall Applications Cannot Be Used as a Litigation Tactic"
One of the most striking aspects of the case was the delay of nearly three years between the closure of cross-examination on June 26, 2018, and the filing of the recall application on December 20, 2021.
Taking serious note of this delay, the High Court remarked, "A recall application cannot be entertained as a matter of right, especially when there is an unexplained delay of three years. The registration of the lease was known to the defendant at the time of cross-examination. If the defendant failed to bring it up then, it cannot now seek a second chance through recall."
The High Court stressed that recall applications must be filed promptly and with bona fide intent, adding, "Judicial discretion to recall witnesses must be exercised sparingly and only in cases where it is essential for justice. Permitting routine recalls would disrupt the efficiency of trials and encourage legal procrastination."
"Trial Courts Must Retain Control Over Their Proceedings"
The High Court reaffirmed that the discretion of the trial court in matters of witness recall should not be lightly interfered with. Referring to the Supreme Court’s decision in K.K. Vellusamy v. N. Palaanisamy (2011 AIR SCW 2296), the court noted, "While inherent powers under Section 151 CPC may be invoked in exceptional circumstances, they cannot be used as a substitute for procedural lapses. Recall should be permitted only when it serves the ends of justice and not merely as a tool for convenience."
In this case, the trial court had correctly exercised its discretion, and the High Court found no reason to interfere. "The trial court has already weighed the necessity of recall and found no exceptional circumstances warranting it. There is no reason for this court to disturb that finding," the judgment stated.
"Litigants Cannot Be Allowed to Derail Trials Through Procedural Manipulations"
After a detailed review of the facts, the High Court dismissed the revision petition and upheld the trial court’s refusal to recall the witness.
Justice Shampa Sarkar concluded: "The evidence already on record sufficiently addresses the issue at hand. The recall application was clearly intended to delay proceedings. No interference is warranted in the trial court’s well-reasoned order."
The court directed the trial court to proceed with the suit expeditiously and without further delay.
This judgment serves as a strong precedent reaffirming that:
Litigants must exercise due diligence during cross-examination and cannot seek witness recall merely to correct their own omissions.
Repeated attempts to introduce rejected amendments through procedural loopholes will not be entertained.
Judicial discretion in rejecting recall applications will not be interfered with unless exceptional injustice is demonstrated.
Trials must proceed efficiently, and courts will not allow belated recall applications to disrupt the judicial process.
By rejecting this recall plea, the Calcutta High Court has upheld procedural discipline, ensuring that trials do not become an endless cycle of litigation tactics.
 

Date of Decision: March 4, 2025