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Judgment
AMARJOT BHATTI, J. (ORAL)
Petitioner/respondent No.3 filed civil revision against impugned order dated 20.07.2026 (Annexure P-4) passed by learned Civil Judge (Senior Division), Gurugram vide which application filed under Order 18 Rule 17 CPC read with Section 168 of BSA, 2023 and Section 151 CPC filed by petitioner Mahesh Dayma (respondent No.1 herein) for recalling the witness i.e. Bank Manager of HDFC Bank, Sector- 41, Noida, Uttar Pradesh in Election Petition no.2 of 2025 titlted as “Shri Mahesh Dayma Vs. Municipal Corporation of Gurugram and Ors.” has been allowed wrongly without appreciating the facts and circumstances of the present case.
Learned counsel for the petitioner/respondent No.3 argued that Sh. Mahesh Dayma has filed election petition against Municipal Corporation, Gurugram and others (Annexure P-1) in which the statement of Mohammad Amaan (PW4) Customer Care Executive with HDFC Bank was already recorded on 05.05.2026 (Annexure P-5). Thereafter, petitioner filed application under Order 18 Rule 17 read with Section 151 CPC to recall and produce further record only with an intention to fill up lacunae in the case. Said application was contested by the petitioner/respondent by filing reply (Annexure P-3). Since the witness was completely examined, there was no valid justification to recall him with further record. To support his arguments, learned counsel has also referred to the judgment of Hon’ble Supreme Court of India in Civil Appeals arising out of SLP (C) Nos.2744-2746 of 2024 titled as ‘K. Bharathamma Vs. Bandaru Sakku Bai and others’ and referred to para No.6 which runs as under:-
6.Summing up on the scope, nature and applicability of the provision of Order XVIII Rule 17, CPC on the basis of the provisions of law laid down in the judicial decisions highlighted above, this provision is in the nature of power-cum-discretion vested in the Court.It aims to become an aid to the Court in the adjudicating process of the suit. The provision is in the nature of a facilitator to the court in the suit proceedings, to be used and invoked within the discipline of the trial and within the bounds of the rules of evidence.
6.1The parameters for invocation and use of Order XVIII Rule 17, CPC, are thus well-established. It is not meant for a routine-exercise. Nor it is a provision which can be employed on mere asking by a party, unless the Court wants any clarification on any aspect of the evidence already led in the proceedings. Though the provision could be invoked at the instance of a party to the suit, basically and essentially it is the discretionary power to be exercised by the court itself. This provision can be put into play neither by the party nor by the court itself to permit to fill up the gaps, omissions or lacunae in the evidence.
6.2It is not permissible that the evidence by a party already led and settled is allowed to be improved by reopening the evidence or recalling the witness under this Order of CPC. The provision is not a tool whereby a party can embellish the evidence, fill in the omissions therein or refine the evidence at a later stage.
6.3Also, it is no valid yardstick to be employed for permitting reopening the evidence or allowing recalling of a witness that such a course would not prejudice any party. It is no valid ground for invoking the powers under Order XVIII Rule 17, CPC that a party to the proceedings will not be prejudiced. Not the absence of prejudice but an independent justification must exist before the court can legitimately take resort to Order XVIII Rule 17, CPC.
6.4In Vadiraj Naggappa Vernekar (supra), the appellants sought to introduce the evidence by recalling witnesses who were available at the time the affidavit of such witnesses was prepared. Neither new evidence was introduced nor new facts were discovered subsequently. The court stated that it was not a case for recalling the witnesses.
6.5The following observations made in Vadiraj Naggappa Vernekar (supra) stand close to the facts and circumstances of the present case:
“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.” It is submitted that order passed by the learned Civil Judge (Senior Division) Gurugram is without justification. Therefore, the impugned order dated 20.07.2026 may kindly be set aside by accepting present civil revision.
Learned counsel representing petitioner has annexed all the relevant documents along with the civil revision. No purpose would be served by issuing notice to the contesting respondent No.1/petitioner Mahesh Dayma, therefore, service upon him is dispensed with.
I have considered the arguments and have gone through the record carefully. It is matter of record that statement of Mohammad Amaan, Customer Care Executive with HDFC Bank was examined completely as PW4 on 05.05.2026. Thereafter, petitioner filed application (Annexure P-2) to recall the aforesaid witness on the ground that inadvertently he did not bring all relevant summoned documents which were called upon by this Court and same were required for proper and just adjudication of the case. Witness Mohammad Amaan (PW4) was a summoned witness and at the time of issuing process the record was mentioned which he was required to be produced before the Court which is detailed in para No.4 of application (Annexure P-2). On the said date when his testimony was recorded he did not produce a part of the record and for that reason for limited purpose he was recalled vide impugned order dated 20.07.2026 (Annexure P-4). It is not the case that petitioner wanted to examine a new witness or some fresh record was being summoned from him. In-fact, witness Mohammad Amaan (PW4) was a summoned witness and the record was already detailed in the application which he was required to produce. The day when his statement was recorded in the Court as PW4, the said record was left to be produced by way of evidence.
Therefore, considering the peculiar facts and circumstances of the present case, I do not find any valid reason to interfere in the impugned order dated 20.07.2026 (Annexure P-4) and the same is, accordingly, upheld and the Civil Revision preferred by the petitioner/respondent No.3 is, accordingly declined.
Pending miscellaneous application (s), if any, stand disposed of accordingly as well.