Recall of Witness -- Re-Examination Confined to Clarifying Inconsistency Between Cross-Examination and Affidavit -- Recall permitted, not treated as filling lacuna
(i) Civil Procedure Code, 1908, O.18 R.17 -- Recall of Witness -- Governing Principles -- The court may recall a witness at any stage, even while writing judgment, if necessary for proper adjudication. Recall is primarily intended to enable the court to clarify ambiguity, doubt, or inconsistency in evidence already on record, and the power is discretionary, to be exercised sparingly in exceptional circumstances. Recall cannot be permitted to fill omissions or cure lacunae in evidence already led. It may be sought suo motu by the court or at the instance of a party, but not merely because a party perceives, in hindsight, inadequacy in its earlier examination. A bona fide application confined to clarifying an apparent inconsistency, aiding the court in arriving at the truth, may be allowed subject to safeguards, and recall is not to be used as a delaying tactic. The determinative test is whether recall is sought to fill a lacuna, which is impermissible, or to reconcile inconsistency and clarify ambiguity, which is permissible to prevent failure of justice. (ii) Evidence Act, 1872, S.137, Civil Procedure Code, 1908, O.18 R.17 -- Recall of Witness for Re-Examination -- Application Confined to Clarifying Variance Between Cross-Examination and Affidavit -- Where a prayer for re-examination is confined strictly to clarifying an ambiguity arising from a statement made by a witness in cross-examination that stands at variance with his affidavit and other evidence on record, and does not seek to introduce new material, such recall is not to be construed as permitting a party to fill a lacuna in evidence, but only as an aid to the court in arriving at a just adjudication.
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