“No Prejudice” Not Enough: Supreme Court Sets Aside Order Permitting Plaintiffs to Reopen Evidence at Final Arguments Stage

A bench of Justices S.V.N. Bhatti and N.V. Anjaria holds that Order XVIII Rule 17 CPC cannot be used to fill evidentiary gaps, even if no prejudice results.

The Supreme Court has set aside directions issued by the High Court for the State of Telangana permitting the plaintiffs in a long-running property suit to recall their principal witness and reopen evidence — after four witnesses had already been examined, thirty-five exhibits marked, and final arguments had progressed past the halfway point. The Court held that Order XVIII Rule 17 of the Code of Civil Procedure, 1908 is a power vested in the court to clarify doubts, not a tool available to a party to cure gaps in evidence it had already led. Critically, the Court rejected the premise that the mere absence of prejudice to the opposite side can justify invoking this provision. The judgment, authored by Justice N.V. Anjaria, draws together a line of precedents to restate the strict disciplinary bounds of the rule.

The Property Dispute and How the Case Reached the Court

The respondents — original plaintiffs — instituted Original Civil Suit No. 489 of 2010 (renumbered as Original Suit No. 1302 of 2022) before the learned Additional Senior Civil Judge, Medchal-Malkajgiri District, Telangana. They sought a declaration of absolute ownership over three properties bearing House Nos. 11-71/2, 11-71/3 and 11-71/4 in Survey Nos. 433 to 438 and 448 to 452, Ghatkesar village, R.R. District. They also prayed to declare two sale deeds dated 21.05.1987 and 31.11.1987 — executed by defendant Nos. 2 and 3 in favour of the appellant, K. Bharathamma — null and void, and sought a perpetual injunction.

The appellant, defendant No. 1, contended that she had purchased Plot Nos. 7 and 8 under two registered sale deeds in 1987 and had been in uninterrupted possession for more than 23 years. She had also obtained a decree of perpetual injunction dated 21.11.1990 against the plaintiffs in Original Suit No. 348 of 1988. Pursuant to that decree, she constructed a compound wall, two rooms, and a bathroom on the property after obtaining Gram Panchayat sanction.

A notable admission emerged during proceedings: in their counter affidavit to the appellant's I.A. No. 5 of 2017 (which sought appointment of an Advocate Commissioner to inspect the properties), the plaintiffs stated that the houses had collapsed during heavy rains in 2016 and that no structure existed on the suit schedule property. The Trial Court closed I.A. No. 5 of 2017 on that basis by Docket Order dated 16.02.2018.

The suit thereafter progressed, evidence of both sides was recorded, and final arguments had begun. The plaintiffs had examined four witnesses (PW-1 to PW-4) and marked Exhibits A1 to A35. After the appellant concluded her final arguments, the plaintiffs filed three interim applications — I.A. No. 716 of 2022 under Order XVIII Rule 17 CPC (to recall PW-1), I.A. No. 717 of 2022 under Section 151 CPC (to reopen plaintiffs' evidence), and I.A. No. 718 of 2022 under Order VII Rule 14 CPC (to receive additional documents). The stated ground was that the appellant had raised pleas during arguments concerning the existence of house numbers that were not found in her written statement, and that further documents from the Municipality and the District Panchayat Officer were needed.

The Trial Court allowed all three applications on 08.12.2022, reasoning chiefly that no prejudice would be caused to the respondents. The High Court, in Civil Revision Petition Nos. 458, 496 and 621 of 2023, modified those orders by directing the Trial Court to complete the recalling and reopening of PW-1's evidence and marking of documents within ten days, requiring the appellant to complete cross-examination of PW-1 within one week thereafter, and imposing costs of Rs. 20,000 on the plaintiffs. The appellant challenged the High Court's modified directions before the Supreme Court by way of SLP (C) Nos. 2744-2746 of 2024.

The Scope of Order XVIII Rule 17 CPC: What the Court Actually Held

The Court began by reading Order XVIII Rule 17 on its own terms. The provision allows the court, at any stage of a suit, to recall any witness who has been examined and to put such questions as the court thinks fit. The Court observed that the right to recall and put questions is given to the court itself — not to the parties. No cross-examination is ordinarily open on the answers to questions put by the judge without leave.

After surveying its own precedents, the Court summarised the governing principles in a series of propositions:

First, the provision is a discretionary power vested in the court. It operates as a facilitator for the court in the adjudicating process, not as a right available to a party on application.

Second, the power can be invoked only to clarify doubts that have arisen during examination of a witness. It is not meant to fill up omissions, gaps, or lacunae in evidence already led. In Bagai Construction v. Gupta Building Material Store, (2013) 14 SCC 1, the Court had held that the provision “was not meant to fill up the omissions in the already adduced evidence.”

Third, the deletion of Order XVIII Rule 17A with effect from 01.07.2002 is material. Rule 17A had expressly permitted reopening of evidence and recalling for further examination or cross-examination. After its deletion, as explained in K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275, such power could at most be drawn from Section 151 CPC, but only to address a procedural aspect not expressly or impliedly provided for in the CPC — and not as a routine measure.

Fourth, and central to the present case, the absence of prejudice to the opposite party is not a valid ground for invoking Order XVIII Rule 17. The Court quoted Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410: “The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate 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.” An independent justification must exist, distinct from the absence of prejudice, before the court can legitimately resort to this provision.

Fifth, frequent resort to this provision risks becoming an abuse of process and a tool for procrastination. Gayathri v. M. Girish, (2016) 14 SCC 142, had emphasised that applications for reopening evidence and recalling witnesses must be considered only in compelling facts and on acceptable reasons, and that trial must be completed within a time schedule.

Applying the Principles to the Facts

The Court found that when the three interim applications were filed, the suit was well past the stage of evidence — issues had been settled, all four plaintiff witnesses had been examined, thirty-five exhibits were on record, and final arguments were more than half concluded. The documents the plaintiffs sought to introduce — relating to house numbers, Municipality records, and a District Panchayat Officer communication dated 18.07.2018 — were documents available to them and within their knowledge when PW-1's affidavit evidence was prepared. No new facts had been discovered subsequently.

The Court found the facts of the case close to those in Vadiraj Naggappa Vernekar, where the Court had refused recalling because the evidence sought to be introduced was available at the time the witness's affidavit was affirmed.

There was an additional dimension: the plaintiffs had themselves admitted in 2018 that the houses had collapsed and no structure existed on the suit property. In that context, permitting the plaintiffs to reopen evidence specifically to produce house number documents “was not to serve any purpose.” The Court characterised the interim applications as apparently filed as a delaying tactic and “destined to be a futile exercise.”

The Trial Court's stated basis — that no prejudice would be caused — was directly addressed and rejected. The Court held that the “theory of 'no prejudice' cannot be conveniently applied to justify invocation of the provision of Order XVIII Rule 17, CPC.”

The Direction on Cross-Examination Was Separately Impermissible

The High Court's modified order had included a direction (direction 'b') requiring the appellant to complete cross-examination of PW-1 within one week after the recalling exercise. The Court held this direction was completely beyond the scope of Order XVIII Rule 17 CPC. The provision does not permit a party to cross-examine a recalled witness. The Court endorsed observations of the Bombay High Court in Balkrishna Shivappa Shetty v. Mahesh Nenshi Bhakta and Others, AIR 2003 Bom 293, that Order XVIII Rule 17 “does not empower the Court to recall the witness for the purpose of cross-examination by either of the parties though it does permit recall of witnesses for the purpose of examination by the Court itself.”

The Documents Prayer Under Order VII Rule 14 CPC

The prayer to receive documents filed under Order VII Rule 14 CPC (I.A. No. 718 of 2022) was considered alongside. The Court held this prayer was inextricably interwoven with the prayers under Order XVIII Rule 17 CPC. Since the plaintiffs were using all three applications together to fill gaps in their already-led evidence — which was impermissible — the directions in totality suffered from illegality. The admission by the plaintiffs, in filing the applications, that they wanted to fill up gaps in closed evidence, was itself the reason the applications could not have been allowed.

Order

The Supreme Court allowed the three civil appeals. The common order dated 15.09.2023 of the High Court for the State of Telangana in Civil Revision Petition Nos. 458 of 2023, 496 of 2023 and 621 of 2023 was set aside. The interlocutory applications, if any, were held not to survive in view of the disposal of the appeals. The judgment was delivered on 4 August 2026 by a division bench of Justice S.V.N. Bhatti and Justice N.V. Anjaria.