Manoj Kumar Sharma Vs Vinod Suri and Anr.

( 2026:HHC:20397 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMPMO No. 683 of 2025 Date of Decision:19.05.2026

__________________________________________________ Manoj Kumar Sharma ...Petitioner. Versus Vinod Suri & another ...Respondents

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Coram The Hon'ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting? Yes For the petitioner : Ms. Chehak Khurana Bhalla, Advocate. For the respondents : Ms. Shweta Sharma, Advocate.

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4._________________________________________________ Romesh Verma, Judge (oral)

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The present petition arises out of the order dated 07.10.2025, as passed by learned Rent Controller-II, Solan, District Solan, H.P., whereby the application filed by the present respondent/landlord under Order 18 Rule 17 CPC has been allowed.

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The brief facts of the case are that present respondent filed an Execution Petition No. 484 of 2013 against Vikas Kumar. During the pendency of the execution, third party objections were filed by the present petitioner under Order 21 Rule 97 CPC. Pursuant thereto, issues were framed by the learned Rent Controller on 22.12.2018 and thereafter evidence was led by the respective parties.

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The present respondent, namely Vinod Suri, tendered his affidavit in evidence on 18.04.2019, a copy whereof has been placed on record as Annexure P-11 at running page 48 of the petition. He was thereafter cross-examined on 04.07.2019. After the conclusion of his cross-examination, the respondent/decree holder moved an application under Order 18 Rule 17 CPC seeking his re-examination.

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In the application, it has been stated that on the previous date of hearing, the decree holder, Vinod Suri, was cross-examined by counsel for the objector, Manoj Kumar, who claims to be a tenant under the decree holder qua the shop in question. The decree holder has, however, always categorically maintained that Manoj Kumar was never a tenant in the premises and has been occupying the same in the capacity of a trespasser.

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It has been further stated that during the crossexamination, Vinod Suri was confronted with certain documents prepared by the police, and certain conclusions were sought to be drawn therefrom, necessitating clarification of the contents of those documents by way of his reexamination. It has been stated that the re-examination of

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Vinod Suri is necessary at this stage to clarify the statement made by the decree holder, Vinod Suri, qua the status of Manoj Kumar in respect of the tenanted premises.

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The said application was contested by the petitioner by filing a reply thereto. It was averred in the reply that the application was an afterthought and had been filed with an ulterior motive to prejudice the rights of the petitioner. It was further stated that there was a delay in filing the application and, therefore, the same, being devoid of merit, deserves to be rejected.

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The learned Rent Controller, vide the impugned order dated 07.10.2025, allowed the application filed by the present respondent by permitting the decree holder to reexamine himself on the points mentioned in the application.

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Feeling dissatisfied the objector/petitioner has approached this Court by filing the present petition under Article 227 of the Constitution of India.

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It was contended by Ms. Chahak Khurana, learned counsel for the petitioner, that the impugned order passed by the learned Rent Controller is erroneous and liable to be quashed and set aside. She has submitted that the

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application filed by the present respondent under the provisions of Order 18 Rule 17 CPC does not disclose sufficient material to warrant its allowance, and that the learned Rent Controller has passed a non-speaking order without referring to the entire factual matrix of the case.

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She has further submitted that, in view of the mandate laid down by the Hon’ble Apex Court, an application under Order 18 Rule 17 CPC cannot be allowed in a routine or casual manner, rather, a case has to be specifically made out for the same. However, in the present case, the respondent/ decree holder has failed to make out such a case.

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The provision of Order 18 Rule 17 of the CPC reads as follows:

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“17. Court may recall and examine witness.—The Court

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may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.”

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The said provision empowers the Court to recall any

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witness, who has been examined and to put such questions to him as the Court thinks fit. The legal proposition in this

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regard has been discussed by the Hon’ble Apex Court in Special Leave Petition Nos. 12012-12013 of 2025 , titled Shubhkaran Singh vs. Abhayraj Singh and Others , decided on 15 May 2025.

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The Hon’ble Apex Court has held that the power under the provisions of Order 18 Rule 17 CPC is to be exercised sparingly and only in appropriate cases, and not as a general rule merely on the ground that recalling the witness and conducting further examination would not cause prejudice to the parties. It has been observed that such an approach is neither the scheme nor the intention of Order 18 Rule 17 CPC.

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It has been further held that Order 18 Rule 17 CPC is primarily a provision enabling the Court to clarify any issue or doubt by recalling a witness either suo motu or at the request of a party, so that the Court itself may put questions and elicit answers. Once a witness is recalled for the purpose of such clarification, the Court may, of course, permit the parties to assist it by putting certain questions.

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The Apex Court has held that the power under Order

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18 Rule 17 CPC is not intended to be exercised routinely or

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merely for the asking. If used in such a manner, it would

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defeat the very purpose of the various amendments introduced to expedite the trial. The Hon’ble Supreme Court,

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in the said case, has held as follows:

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“ 9. In this connection, we may refer to the following observations in Sultan Saleh Bin Omer v. Vijayachand Sirmal [A.I.R. 1966, A.P. 295.], which accords with the above view:

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“A close reading of this rule makes it obvious that the right under that Rule to put question at any stage or a suit or recall any witness for that purpose, is given to the Court. The court can put questions to the witness recalled, and no cross-examination is ordinarily allowed upon the answers to the questions put by the Judge without leave…….. It cannot therefore be said that an opportunity to a party to recall any witness for the purpose of examining cross-examining or re-examining is governed by O. 18, R. 17 C.P.C. ………..”

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10. We are of the opinion that if circumstances warrant, an opportunity to a party to re-call a witness for examining, cross- examining or re-examining can be granted by a Court in the exercise of its inherent jurisdiction under Section 151 C.P.C.

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11. This Court in the case of Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, reported at (2009) 4 SCC 410 more particularly para 28 held as under:

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“28. 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 reexamination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.” (Emphasis supplied)

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12. In the case of K.K. Velusamy v. N. Palanisamy reported at (2011) 11 SCC 275, this Court discussed the power of the Court under Order 18 Rule 17 of CPC. It was held that this power is only for clarification i.e. to enable Court to clarify any issue or doubt, it may have in regard to evidence led by parties by recalling any witness so that the Court itself can put questions to such witness and elicit answers. The relevant paras 9, 10 and 19 read as under:

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“9. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross- examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.

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10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.

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xxx xxx xxx

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19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary,

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will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.” (Emphasis supplied)”

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The Apex Court in Civil Appeal No. 1684 of 2016 tiled Ram Rati vs. Mange Ram (D) through LRs and others , dated 23.02.2016, while relying upon the judgment of Vadiraj Nagappa Vernekar (dead) through LRs vs. Sharadchandra Prabhakar Gogate (2009) 4 SCC 410 , has held that the provision 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 reexamination would not cause any prejudice to the parties. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The Apex Court in the said judgment has held as follows:

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“12. In Vadiraj Naggappa Vernekar (Dead) Through LRs. v. Sharadchandra Prabhakar Gogate1 , this principle has been summarized at paragraphs- 25, 28 and 29:

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“25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.

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xxx xxx xxx

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28. 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 1 (2009) 4 SCC 410 that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.

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29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination.”

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13. In K.K. Velusamy v. N. Palanisamy2, the principles enunciated in Vadiraj (supra) have been followed, holding at paragraphs- 9 and 10:

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“9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said

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power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. (Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate.)

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10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-inchief or cross-examination or to place additional material or evidence which could not be produced when the 2 (2011) 11 SCC 275 evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.”

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16. Some good guidance on invocation of Section 151 of the CPC to reopen an evidence or production of fresh evidence is also available in K.K. Velusamy (supra). To quote paragraph-14:

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“14. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for reopening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands on earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under Section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.”

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17. Vadiraj (supra) and K.K. Velusamy (supra) have also found affirmation by this Court in Bagai Construction Through its Proprietor Lalit Bagai v. Gupta Building Material Store3.

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18. The settled legal position under Order 18 Rule 17 read with Section 151 of the CPC, being thus very clear, the impugned orders passed by the trial court as affirmed by the High Court to recall a witness at the instance of the respondent “for further elaboration on the left out points”, is wholly impermissible in law.”

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Similarly, the Apex Court in Civil Appeal No. 1172 of

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2009, titled Vadiraj Nagappa Vernekar (dead) through LRs vs. Sharadchandra Prabhakar Gogate (2009) 4 SCC 410

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has held as under:

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“16. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross- examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in

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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. That is not the scheme or intention of Order 18 Rule 17 CPC.

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17. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re-examination-in- chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.”

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The said exposition of law clearly shows that the provisions of Order 18 Rule 17 CPC cannot be exercised in a routine manner. Merely because re-examination or recalling of a witness would not cause any prejudice to the parties would not entitle the applicant to seek relief under the said provision.

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Now coming to the factual matrix of the case, a perusal of the application demonstrates that the case set up by the respondent/decree holder is that, during the cross-examination of Vinod Suri, he was confronted with certain documents prepared by the police, and some confusion remained qua the

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clarification of the contents of those documents. However, the application is silent and does not disclose which documents are being referred to or what clarification is being sought by the respondent/decree holder.

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Similarly, the learned Rent Controller has not assigned any reasons for allowing the application. The only observation made by the learned Rent Controller is that the proposed reexamination is confined to certain matters which may assist the Court in reaching a just decision. However, nothing has been clarified by the learned Rent Controller as to what clarification is sought to assist the Court in arriving at a just decision.

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The learned Rent Controller has, in a cursory manner, allowed the application, which is not sustainable in law as the same is in conflict with the mandate laid down by the Hon’ble Apex Court while dealing with the provisions of Order 18 Rule 17 CPC.

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Consequently, there is merit in the present petition and the same is allowed and the impugned order dated 07.10.2025 is ordered to be quashed and set-aside.

¶81

At this stage, the Court has been informed that the Execution Petition No. 484 of 2013 preferred by the respondent

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was filed on 24.08.2011. She submits that despite passing of more than 15 years, the decree holder has not been able to get the fruits of the decree as passed in his favour. The case file reveals that the case is hanging fire for several years and on the one pretext or the other the case is being adjourned just to prolong the execution petition. Therefore, this Court directs the learned Executing Court to decide the Execution Petition, positively within a period of one month from the date of appearance of respective parties. The parties undertake to remain present before Executing Court on 15.06.2026 .

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Before parting, it is made clear that any observation made here-in-above shall not be taken as an expression of opinion on the merits of the main case and the same shall be adjudicated upon uninfluenced by any observation made here- in-above, which are only for the purpose of the instant petition. Records be sent back henceforth.

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Pending miscellaneous application (s), if any, shall also stand disposed off.

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(Romesh Verma)

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19^th May, 2026 (Nisha)

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Judge

Manoj Kumar Sharma v. Vinod Suri and Anr.

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