Order XVIII Rule 17 CPC Cannot Be Used To Fill Gaps In Evidence At "Fag End" Of Trial: Supreme Court

"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," Supreme Court of India.

"The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined." Supreme Court of India, in a significant ruling dated August 04, 2026, unequivocally held that the discretionary power under Order XVIII Rule 17 of the Code of Civil Procedure, 1908 (CPC), cannot be invoked by parties to fill up lacunae in their evidence or to introduce documents that were available earlier.

A bench of Justices S.V.N. Bhatti and N.V. Anjaria set aside a common order of the Telangana High Court, emphasizing that the "theory of no prejudice" is not a valid yardstick to justify such reopening of evidence, especially at an advanced stage of litigation.

The dispute originated from a 2010 civil suit where the plaintiffs-respondents sought declaration of ownership over properties and injunction against the appellant-defendant. At the "fag end" of the suit, after evidence was closed and final arguments had commenced, the plaintiffs filed three interim applications: one under Order XVIII Rule 17 CPC to recall PW-1 for marking documents, and two others under Section 151 CPC and Order VII Rule 14 CPC to reopen evidence and receive additional documents related to property house numbers. The Trial Court allowed these applications, which the High Court modified, directing specific timelines for recalling PW-1 and cross-examination.

The primary question before the Supreme Court was whether the High Court was justified in permitting the reopening of evidence and recall of a witness under Order XVIII Rule 17 CPC, read with other provisions, at a late stage of the suit to introduce new documents and fill perceived omissions. The Court also examined the scope and limits of Order XVIII Rule 17 CPC in light of established precedents.

Order XVIII Rule 17 CPC Not a Party's Right

The Supreme Court reiterated that Order XVIII Rule 17 CPC, which states that a court "may recall and examine witness," confers a discretionary power upon the court itself. It is not an absolute right available to a party for the mere asking.

Purpose: Clarify Doubts, Not Fill Omissions

The provision's core objective is to enable the court to clarify any doubts that may have arisen during the examination of a witness. It is decidedly not intended to be used by parties to fill up omissions or lacunae in evidence already led.

Deletion of Rule 17A Significant

The Court highlighted that after the deletion of Rule 17A of Order XVIII CPC (which previously allowed reopening evidence for further examination or cross-examination) with effect from July 1, 2002, such power is now limited. Any such power, if drawn from Section 151 CPC, must be exercised sparingly and for procedural aspects not expressly provided.

Power to be Exercised Sparingly

Citing its previous rulings in Vadiraj Naggappa Vernekar (Dead) through LRs vs. Sharadchandra Prabhakar Gogate and K.K. Velusamy vs. N. Palanisamy, the Court emphasized that Order XVIII Rule 17 CPC is to be exercised sparingly and in exceptional cases. It is not meant for routine use or to permit a party to improve its case.

Not a Tool for Procrastination

The Court noted that frequent resort to Order XVIII Rule 17 CPC tends to abuse the process of the court and leads to the procrastination of litigation. As held in Gayathri vs. M. Girish, such interlocutory applications must be considered only in compelling facts and on acceptable reasons, to prevent dishonest litigants from gaining undue advantage.

"No Prejudice" Is Not a Valid Ground

Crucially, the bench underscored that the argument of "no prejudice" to the other side cannot be a convenient justification for invoking Order XVIII Rule 17 CPC. An independent justification, beyond the mere absence of prejudice, must exist. The Court observed that the evidence sought to be introduced in the present case was available when the affidavit of evidence was prepared, indicating no new discovery of facts.

"The theory of 'no prejudice' cannot be conveniently applied to justify invocation of the provision of Order XVIII Rule 17, CPC."

High Court Exceeded Scope by Allowing Cross-Examination by Parties

The Supreme Court critically noted that the High Court's direction permitting the appellant-defendant to cross-examine PW-1 was "completely beyond the scope of Order XVIII Rule 17, CPC." Citing the Bombay High Court's observation in Balkrishna Shivappa Shetty vs. Mahesh Nenshi Bhakta and Others, it clarified that the provision empowers the court to recall a witness for its own examination, not to enable parties to conduct cross-examination.

Applications Deemed Delaying Tactics

Given that the plaintiffs had previously admitted in 2018 that no houses existed on the properties (as they had collapsed in 2016 rains), the Court found the subsequent applications to reopen evidence and recall PW-1 for purposes like proving house numbers to be a "futile exercise" and "apparently filed as a delaying tactics." The prayer to receive documents under Order VII Rule 14 CPC was found to be inextricably interwoven with the impermissible prayers under Order XVIII Rule 17 CPC.

The Supreme Court concluded that the Trial Court and High Court erred in allowing the applications to reopen evidence and recall the witness, as it amounted to permitting the plaintiffs to fill up lacunae and embellish their evidence at a belated stage. The directions issued by the High Court suffered from "vices of illegality." Consequently, the High Court's common order was set aside, and the civil appeals were allowed, rendering the interlocutory applications non-surviving.

Date of Decision: August 04, 2026