[Cites 3, Cited by 0]
Delhi High Court
Kishan vs Usha Devi And Anr on 10 February, 2026
$~65
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 10th February, 2026
+ CM(M) 126/2026
KISHAN .....Petitioner
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.
1. This hearing has been conducted through hybrid mode.
CM APPL. 9078/2026 (for early hearing)
2. This is an application filed on behalf of the petitioner under Section 151
of the Code of Civil Procedure, 1908 seeking early hearing of the present
petition.
3. Learned counsel for the respondents has appeared on advance notice
and accepted notice.
4. For the ground and reasons stated in the application, the same is
allowed. The present petition is taken up for hearing today with the consent of
the learned counsels.
5. Accordingly, the application is disposed of.
CM(M) 126/2026
6. The present petition has been filed by the petitioner under Article 227
of the Constitution of India, 1950 assailing the order dated 30th October, 2025
passed by the learned Trial Court in CS. No. 236/2023, whereby the
application of the petitioner/plaintiff filed under Order XVIII Rule 17 of the
Code of Civil Procedure, 1908 to recall and re-examine PW-3, namely,
Mohd. Irshad Ali, has been dismissed.
7. Learned counsel for the petitioner submits that PW-3 is a material
witness, being one of the attesting witnesses of the alleged will. It is further
submitted that certain relevant facts could not be brought on record during the
examination-in-chief of PW-3 due to inadvertence and oversight. Learned
counsel further contends that if PW-3 is not permitted to be recalled, grave
prejudice would be caused to the petitioner.
8. On the other hand, learned counsel for the respondents submits that the
application has been moved only with a view to delay the proceedings, as the
same has been filed at a stage when part final arguments were heard, and that
the attempt is merely to fill up the lacunae in the petitioner's case.
9. The operative portion of the impugned order reads as unde:
"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
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."
10. A perusal of the record shows that PW-3 was examined on behalf of the
petitioner and was thereafter cross-examined by the respondents on 27th April,
2024. The present application was moved on 30th July, 2025, after the matter
had been partly heard on merits.
11. Keeping in view the facts and circumstances of the case that the
application has been moved after undue delay and appears to be an attempt to
fill up the lacunae in the case, this Court does not find any infirmity in the
impugned order, which is a well-reasoned order passed in accordance with
law.
12. Accordingly, the present petition is dismissed as being devoid of
merits. Pending application(s), if any, also stand disposed of.
13. The next date already fixed i.e., 08th May, 2026 stands cancelled.
RAJNEESH KUMAR GUPTA, J
FEBRUARY 10, 2026/nd/isk
