- 1 - HC-KAR NC: 2025:KHC-D:11055 WP No. 116207 of 2019 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) 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. Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:11055 WP No. 116207 of 2019 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: - 3 - HC-KAR NC: 2025:KHC-D:11055 WP No. 116207 of 2019 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 - 4 - HC-KAR NC: 2025:KHC-D:11055 WP No. 116207 of 2019 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 - 5 - HC-KAR NC: 2025:KHC-D:11055 WP No. 116207 of 2019 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- - 6 - HC-KAR NC: 2025:KHC-D:11055 WP No. 116207 of 2019 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 - 7 - HC-KAR NC: 2025:KHC-D:11055 WP No. 116207 of 2019 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. - 8 - HC-KAR NC: 2025:KHC-D:11055 WP No. 116207 of 2019 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 CT-AN, List No.: 1 Sl No.: 2