They Asked To Recall Their Witness Mid-Argument. That Is Not What The Rule Is For.
Evidence closed, the defendant's final arguments over, and then an application to bring the plaintiff's witness back. The Supreme Court has explained what Order XVIII Rule 17 is actually for.
The Court held it was not permissible in law for a court to use Order XVIII Rule 17 to let the plaintiffs recall their witness and reopen their evidence at that stage. The applications were apparently filed as a delaying tactic and were destined to be a futile exercise. The appeals were allowed.
- The power belongs to the court, not the parties. Rule 17 lets the judge put questions and recall a witness for that purpose.
- It is not a way to fill gaps. Omissions, lacunae and second thoughts are not what the rule addresses.
- Frequent resort to it becomes an abuse of process and a way of dragging out litigation.
- Read it with Section 165 of the Evidence Act, which gives the judge that questioning power and bars cross-examination on the answers without leave.
- Court
- Supreme Court of India
- Bench
- Justice Sarasa Venkatanarayana Bhatti, Justice N. V. Anjaria
- Citation
- 2026 INSC 795
- Reported
- [2026] 8 S.C.R. 355
- Case
- Civil Appeal Nos. 10031-10033 of 2026
- Decided
- 4 August 2026
- Outcome
- Appeals allowed
The stage the suit had reached
Issues were settled, PW-1 to PW-4 had been examined, Exhibits A1 to A35 marked, and questions about house numbers had already been put to PW-1 in cross-examination.
By a docket order of 16 February 2018 an earlier application had been closed, on the respondents' admission that the houses had collapsed in the 2016 rains and no structure existed.
The plaintiffs then applied to reopen their evidence, recall PW-1 under Order XVIII Rule 17, and receive additional documents under Order VII Rule 14 read with Section 151 — to introduce material about house numbers. The trial court allowed it in part and the High Court modified those orders.
What Rule 17 is for
The right under the rule to put a question at any stage of the suit, or to recall a witness for that purpose, is given to the court. The court puts the questions; no cross-examination on the answers is ordinarily open without leave.
Read with Section 165 of the Evidence Act, the position is that the power to recall and re-examine a witness is exclusively that of the court trying the suit.
It is not meant for routine use, and cannot be employed on the mere asking of a party unless the court itself wants clarification on evidence already led.
What it is not for
Neither a party nor the court may use the provision to fill up gaps, omissions or lacunae in the evidence.
Evidence already led and settled cannot be improved by reopening it or recalling a witness. It is not a tool to embellish evidence or refine it at a later stage.
Frequent resort to Rule 17 tends to develop into an abuse of the process of the court and the procrastination of litigation, and courts should not let it become a handy tool for that.
Who argued it
Appearances as recorded in the judgment of the Court.
Frequently asked
Can a party recall its own witness after evidence is closed?
Not as of right. Order XVIII Rule 17 gives the power to the court, for its own clarification, and not to a party to fill gaps.
What if there is genuinely new material?
That is a different application. Rule 17 cannot be used to improve or embellish evidence already led and settled.
Facing an application to reopen evidence late in a trial
- Set out the stage of the suit precisely — issues, witnesses examined, exhibits marked, arguments begun.
- Show the point was already covered in cross-examination; here it had been.
- Argue that the power is the court's own, and that a party cannot invoke it as of right.
- Where earlier applications on the same point were closed, put those orders on record; the history establishes the delaying purpose.
Source. Supreme Court of India, 2026 INSC 795, [2026] 8 S.C.R. 355, Civil Appeal Nos. 10031-10033 of 2026, decided 4 August 2026 by Justice Sarasa Venkatanarayana Bhatti, Justice N. V. Anjaria. This explainer is written from the judgment text as reported.
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