Petitioner under Article 227 challenged dismissal of his application to recall PW-3, an attesting witness to an alleged will, filed after part final arguments. The High Court found no infirmity, holding the delayed application was an attempt to fill lacunae in evidence, and dismissed the petition.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 10th February, 2026
Through: Mr. Bhupesh Narula, Mrs. Rinku Narula, Mr. Anugrah Ekka and Mr. Kanishk Taneja, Advocates. versus USHA DEVI AND ANR .....Respondents Through: Mr. Monish Chhoker, Advocate. CORAM: HON'BLE MR. JUSTICE RAJNEESH KUMAR GUPTA ORDER (Oral)
Rajneesh Kumar Gupta, J.
CM APPL. 9078/2026 (for early hearing)
CM(M) 126/2026
Signature Not Verified
CM(M) 126/2026
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Signed By:VAISHALI CHAUHAN Signing Da te:1 1.02.2026 11:24:44
“12. It is evident from the record that part arguments in the matters were heard on 19.07.2025 and only thereafter the present application came to be filed on 30.07.2025.
13. Again, it is settled law that even though powers U/O XVIII Rule 17 CPC are discretionary in nature, the same cannot be invoked by a Court to fill up omission in the evidence already led by a witness. In fact, in the matter of ‘Ramrati Vs. Mange Ram AIR 2016 Supreme Court 1343’, the Hon'ble Supreme Court of India went on to hold that the said power cannot be used even in cases where no prejudice is caused to either party.
14. In the present case, Counsel for D-1 and Maya Devi are vehemently opposing the application pointing out that in case the
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CM(M) 126/2026
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Signed By:VAISHALI CHAUHAN Signing Da te:1 1.02.2026 11:24:44
present application is allowed, it would amount to allowing the plaintiff to supply the omissions they have pointed out during their part arguments made in the matter and this would gravely prejudice their case.
15. The same appears to be a correct stand taken by D-1 and Maya Devi. Evidently, the present application is a result of the deficiencies in plaintiff's evidence pointed out during arguments before this Court. Thus, if plaintiff is allowed to recall the said witness, it would basically be a case where plaintiff is being allowed to supply shortcomings/omissions in his evidence. PW-3 was examined before this Court on 27.04.2024 and he was cross-examined at length on the said date. His cross-examination runs in 5 pages and in case there was any clarification which was left out to be taken from him, he could have been re-examined or recalled soon after he was discharged.
16. The delay in moving of the present application and the stage at which it has been moved shows that this is an attempt by the plaintiff to fill in the lacunae in his evidence, which cannot be permitted in law.
17. Considering the above, in my humble opinion, the present application is misconceived. It is dismissed.
18. To come up for final arguments on 02.12.2025, Dasti.”
Signature Not Verified
CM(M) 126/2026
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Signed By:VAISHALI CHAUHAN Signing Da te:1 1.02.2026 11:24:44
RAJNEESH KUMAR GUPTA, J
FEBRUARY 10, 2026/ nd/isk
Signature Not Verified
Signed By:VAISHALI CM(M) 126/2026 CHAUHAN Signing Da te:1 1.02.2026 11:24:44
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1 issue framed by the court
Was the trial court justified in dismissing the plaintiff's application under Order XVIII Rule 17 CPC to recall PW-3, an attesting witness to the will, after part arguments?
3 provisions across 2 enactments
Kishan
Usha Devi
Anr.
Rajneesh Kumar Gupta
As recorded by the court registry
A petition under Article 227 of the Constitution invoking the High Court's supervisory jurisdiction over subordinate civil courts.
Judgements on the same questions, provisions and authorities, from every court
