Karnataka High Court
Shri.Bhimappa S/O Bharmappa ... vs Shri.Shrikant S/O Basappa Kadlibuddi on 30 August, 2025
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WP No. 116207 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
AT DHARWAD
DATED THIS THE 30TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
WRIT PETITION NO. 116207 OF 2019 (GM-CPC)
BETWEEN:
SHRI BHIMAPPA
S/O. BHARMAPPA BADANINGAGOL,
AGE: 58 YEARS,
OCC: AGRICULTURE,
R/O. MASAGUPPI VILLAGE,
TALUK: GOKAK,
NOW MUDALAGI,
DIST. BELAGAVI.
...PETITIONER
(BY SRI. NIKHIL NAIK, ADV. FOR
SMT. P. G. NAIK, ADVOCATE)
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: High
Court of Karnataka,
Dharwad Bench
AND:
1. SHRI SHRIKANT
S/O. BASAPPA KADLIBUDDI,
C/O. MAHADEV MALLAPPA WALI,
AGE: 46 YEARS,
OCC: AGRICULTURE,
R/O. JODATTI VILLAGE,
TALUK: CHIKKODI,
DIST: BELAGAVI.
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WP No. 116207 of 2019
HC-KAR
2. SHRI BASAVARAJ
S/O. SHRIKANT KADLIBUDDI,
AGE: 25 YEARS,
OCC: AGRICULTURE,
R/O. JODATTI VILLAGE,
TALUK: CHIKKODI, DIST. BELAGAVI.
3. SMT. PARVATI
W/O. SHRIKANT KADLIBUDDI,
AGE: 48 YEARS,
OCC: AGRICULTURE,
R/O. JODATTI VILLAGE,
TALUK: CHIKKODI, DIST. BELAGAVI.
...RESPONDENTS
(BY SRI. S. A. SONDUR, ADV. FOR R1;
SMT. KAVYA SHETTAR, ADV. FOR
SHRI. C. S. SHETTAR, ADV. FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI TO SET ASIDE THE IMPUGNED
ORDER ON IA NOS.11 & 12 DATED 06.09.2019 PASSED BY THE
CIVIL JUDGE & JMFC, MUDALAGI IN O.S.NO.269/2014 AT
ANNEXURE-F AND ALLOW THE IA NOS.11 & 12 AT ANNEXURE-C
AND ANNEXURE-D RESPECTIVELY BY ALLOWING THIS WRIT
AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
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ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL)
This writ petition is filed seeking following reliefs:
"A) Issue a writ in the nature of certiorari to set aside
the impugned order on IA Nos.11 & 12 dated
06.09.2019 passed by the Civil Judge & JMFC,
Mudalagi in O.S.No.269/2014 at Annexure-F and allow
the IA Nos.11 & 12 at Annexure-C and Annexure-D
respectively by allowing this writ.
B) To issue any other order, writ nor direction as
deemed fit in the circumstances of the case."
2. Sri Nikhil Naik, learned counsel appearing for the
petitioner submits that the petitioner has filed a suit for specific
performance of the contract to enforce the agreement dated
08.12.2008 and 23.06.2010. In the said suit, the plaintiff
examined himself and thereafter his evidence was closed and the
matter was posted for the defendants' evidence. When the
matter was posted for cross-examination of defendant witnesses,
plaintiff filed an application seeking recall and to adduce further
evidence, which came to be rejected by the trial Court solely on
the ground that the application was filed belatedly and at the
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stage, when the matter was posted for cross-examination of
defendants' witnesses. It is submitted that plaintiff intends to
examine witnesses to the agreement dated 23.06.2010 and
examination of those witnesses is necessary to prove the case.
Hence, one opportunity may be provided to lead the evidence.
Hence, he seeks to allow the petition.
3. Per contra, Sri S.A.Sondur, learned counsel for
respondent No.1 and Smt.Kavya Shettar, learned counsel
appearing for respondents No.2 and 3 support the impugned
order of the trial Court and submit that the scope of exercising
power under Order XVIII Rule 17 of the Code of Civil Procedure,
1908 is very limited and in the instant case, the plaintiff has filed
an application only when the matter was posted for cross-
examination of defendants' witnesses. It is submitted that rule
mandates that the plaintiff must furnish list of witnesses along
with the plaint or at least at the time of adducing the evidence.
In the instant case, no such exercise is carried out by the
plaintiff and only after the commencement of cross-examination
of defendant witness, such application is moved. Thus, they seek
to dismiss the petition. In support of their contention, reliance is
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placed on the decision of the Hon'ble Supreme Court in the case
of Shubhkaran Singh v. Abhayraj Singh and others, SLP
(C) Nos.12012-12013/2025 (2025 INSC 628).
4. I have heard learned counsel for the petitioner,
learned counsel for respondents and meticulously perused the
material available on record. I have given my anxious
consideration to the submissions advanced.
5. The petitioner filed O.S.No.269/2014 seeking the
relief of specific performance of the agreement dated 08.12.2008
and 23.06.2010. The records indicate that the plaintiff examined
himself as PW1 and thereafter, his evidence was closed and the
matter was posted for evidence of defendants. The defendants
also adduced the evidence and the matter was posted for cross-
examination of defendant witness. At this stage, the plaintiff filed
an application under Order XVIII Rule 17 r/w Section 151 of
Code of Civil Procedure seeking to recall the order and permit the
plaintiff to adduce further evidence, which came to be rejected
by the trial Court under the impugned order. The trial Court has
recorded the finding that the application was filed at the belated
stage, specifically when the matter was already posed for cross-
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examination of defendant-witness. The Hon'ble Supreme Court in
the case of Shubhkaran Singh referred supra at paragraph
No.6 is held as under:
6. Order XVIII Rule 17 reads as under:-
"17. The Court 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."
This Rule provides the Court with a power which is
necessary for the proper conduct of a case. If it appears
to a court trying the suit at any stage of the proceedings
that it is necessary to recall and further examine a
witness it can always do so. This power can be exercised
even at the stage of writing a judgment by the court. It
is, however, proper that this power should not be
exercised lightly and the rule is that it should be used
sparingly and in exceptional cases only. The power is to
be used for removing ambiguities, for clarifying the
statement and not for the purposes of filling up the lacuna
in a party's case. It is true that the power can be
exercised by the Court at its own initiative and may even
be so done at the instance of a party. Section 165 of the
Evidence Act provides that a Judge may in order to
discover or obtain proper proof of relevant facts, ask any
question he pleases in any form at any time of any
witness about any fact relevant. The section further
provides that the parties shall not be entitled to make any
objection to any such question, nor cross-examine any
witness upon any answer given in reply to any such
question without the leave of the Court. If the provisions
of Order 18 Rule 17 are read along with the provisions of
Section 165 of the Evidence Act it is clear that the power
to recall and re-examine a witness is exclusively that of
the court trying the suit. The parties to the suit cannot
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take any objection to the question asked nor can they be
permitted to cross-examine any witness without the leave
of the court.
6. Keeping in mind the enunciation of law laid down by
the Hon'ble Supreme Court in the aforesaid case, I am of the
considered view that the discretion exercised by the trial Court
under Order XVIII Rule 17 is to be exercised judiciously taking
into account the necessity of examining the witnesses and not
for the purpose of filling up of lacunas in the evidence already on
record. In the instant case, the plaintiff intended to examine the
witnesses to the agreement of sale deed dated 23.06.2010 and
in the application he has narrated the reason for filing the
application belatedly stating that the agreement in question was
deficiently stamped which was later cured. Hence, there is a
delay in filing the application for recall and further evidence of
the plaintiff. Considering the nature of explanation provided in
the application and taking note of the fact that the examination
of the witnesses to the agreement are necessary to decide the lis
between the parties. I am of the considered view that the
application deserves to be allowed. However, this Court also
cannot loose sight of the fact that the application was filed
belatedly. Hence, the same is required to be allowed on costs.
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7. For the aforementioned reasons, I proceed to pass
the following:
ORDER
i. The writ petition is allowed.
ii. The impugned order dated 06.09.2019 passed in
O.S.No.269/2014 by the Civil Judge and JMFC,
Mudalagi, on I.A.Nos.11 and 12 filed by the
plaintiff is set aside. Consequently, I.A.Nos.11
and 12 filed by the plaintiff are allowed subject
to plaintiff paying cost of Rs.3,000/- to the
defendants.
Sd/-
(VIJAYKUMAR A.PATIL)
JUDGE
CLK/RKM
