# Shri Gopal Kishan Khandewal v. Smt. Archana Tripathi

- **Citation:** (2026) 2 ILRA 757
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-05
- **Case number:** Matters Under Article 227 No. 650 of 2026
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-gopal-kishan-khandewal-v-smt-archana-tripathi-54200
- **Pages:** 7

## Text

2 All. Shri Gopal Kishan Khandelwal Vs. Smt. Archana Tripathi
757

22. Regarding the submission of the learned Counsel for the petitioner that the original
defendant had executed the sale deed in violation of an order of temporary injunction restraining
transfer of the property, suffice it to say that the suit was proceeded with and decreed ex-parte and
there is nothing on record to show that the defendant had knowledge of the temporary injunction
order. Therefore, it cannot be said that the sale deed had been executed in deliberate violation of the
temporary injunction order.

23. Further, the plaintiff himself had filed an application for impleadment of Qadir Hussain
and Babu Lal (opposite party no. 4) in the execution proceeding which application was allowed by
means of an order dated 30.09.2013. Thereafter the ex-parte decree dated 30.05.2002 was set aside
by means of an order dated 07.08.2023 passed upon an application filed by the opposite party no. 4.
These facts also provide support to the claim for impleadment of the opposite party no. 4 as a
defendant to the suit.

24. The submission of the learned Counsel for the petitioner that it was wrongly done by some
other Counsel, whereas the newly engaged Counsel of the plaintiff was of a different view, also
does not deserve acceptance, because the mere change of Counsel would not justify a change
towards the approach adopted by the party when the case was being conducted by another Counsel.

25. Keeping in view the foregoing discussion, there appears to be no error or illegality in the
impugned order dated 13.03.2024 passed by the learned Additional Civil Judge (J.D.), Court
No.48, Lucknow in Regular Suit No.973 of 2000 allowing the application for impleadment filed by
Babu Lal - the opposite party No.4 to the petition.

26. The petition lacks merit and the same is hereby dismissed at the admission stage.
----------
(2026) 2 ILRA 757
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2026

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR SRIVASTAVA, J.

Matters Under Article 227 No. 650 of 2026

Shri Gopal Kishan Khandewal ...Petitioner
Versus
Smt. Archana Tripathi ...Respondent

Issue for Consideration
The petition raises a significant question concerning the scope and application of Order XVIII Rule 17 of the
Code of Civil Procedure read with Sections 137, 138 and 145 of the Indian Evidence Act, 1872, particularly the
fine distinction between an impermissible attempt to fill up lacunae in evidence and a permissible exercise of
seeking clarification of an ambiguity in a witness's testimony, so as to enable the Court to arrive at the truth
and ensure a fair adjudication.
758 INDIAN LAW REPORTS ALLAHABAD SERIES
Head Notes
The Constitution of India, 1950-Article 227; The Code of Civil Procedure, 1908- Order XVIII Rule
17- The Indian Evidence Act, 1872- Sections 137, 138 & 145- The determinative factor is the
object and purpose of the recall or reexamination- If the exercise is aimed at repairing a weak
case or introducing evidence that was available but deliberately withheld, it would amount to
filling up lacunae. However, where an apparent ambiguity arises on record, particularly one that
goes to the root of the matter, and where clarification would assist the Court in arriving at the
truth without causing prejudice to the opposite party, refusal to permit such clarification would
defeat the ends of justice- Order XVIII Rule 17 CPC confers a discretionary power upon the
Court to recall any witness at any stage of the proceedings, including even at the stage of
writing the judgment, if such recall is found necessary for the proper adjudication of the case.

Held- Court is of the considered opinion that the ends of justice would be served by permitting recall of DW1, strictly for the limited and specific purpose of clarifying the ambiguity arising from the statement made by
him during cross-examination, which stands at variance with his affidavit and the other evidence on record.
Such recall shall not be construed as permitting the petitioner to fill up any lacuna in the evidence, but only as
an aid to the Court in arriving at a just and proper adjudication of the controversy- Impugned orders set
aside- Petition disposed of. (E-15)
(Para 14, 15 & 18)

Case Law Cited
Shubhkaran Singh vs. Abhayraj Singh (2025) SCC Online SC 1028 ; K.K. Velusamy vs. N. Palanisamy (2011)
11 SCC 275 ; Vadiraj Naggappa Vernekar vs. Sharadchandra Prabhakar Gogate (2009) 4 SCC 410; Sangram
Singh vs. Election Tribunal, Kotah AIR 1955 SC 425; State of Punjab vs. Shamlal Murari AIR 1976 SC 1177

List of Acts
The Constitution of India, 1950- The Code of Civil Procedure, 1908- The Indian Evidence Act, 1872

List of Keywords
Order XVIII Rule 17; discretionary power upon the Court to recall any witness at any stage; apparent
ambiguity; particularly one that goes to the root of the matter; clarification in arriving at the truth; refusal to
permit such clarification would defeat the ends of justice

Case Arising From
Order dated 04.02.2025 passed by the Judge, Small Cause Court, Kanpur Nagar whereby Application No.
99C/99-Ga filed by the petitioner-tenant seeking recall/reexamination of witness DW-1 was rejected. The
petitioner has also assailed the subsequent order dated 19.09.2025 passed by the Additional District Judge, in
SCC Revision, whereby the revision against the trial court's order was dismissed.

Appearances for Parties
Counsel for Petitioners(s) : Prakhar Tandon
Counsel for Respondent(s) : Manish Tandon

(Delivered by Hon'ble Dr. Yogendra Kumar Srivastava, J.)

The present petition under Article 227 of the Constitution of India has been filed challenging
the order dated 04.02.2025 passed by the Judge, Small Cause Court, Kanpur Nagar in SCC Suit
No.12 of 2020 (Archana Tripathi vs. Gopi Kishan Khandelwal), whereby Application No. 99C/99Ga filed by the petitione-'tenant seeking recall/re-examination of witness DW-1 was rejected. The
petitioner has also assailed the subsequent order dated 19.09.2025 passed by the Additional District
2 All. Shri Gopal Kishan Khandelwal Vs. Smt. Archana Tripathi
759
Judge, Court No. 24, Kanpur Nagar in SCC Revision No. 81 of 2025, whereby the revision against
the trial court's order was dismissed.

2. The petition raises a significant question concerning the scope and application of Order
XVIII Rule 17 of the Code of Civil Procedure read with Sections 137, 138 and 145 of the Indian
Evidence Act, 1872, particularly the fine distinction between an impermissible attempt to fill up
lacunae in evidence and a permissible exercise of seeking clarification of an ambiguity in a
witness's testimony, so as to enable the Court to arrive at the truth and ensure a fair adjudication.

3. The underlying SCC Suit No.12 of 2020 was instituted by the respondent'plaintiff seeking
eviction, recovery of arrears of rent and damages, claiming ownership over the suit property on the
basis of a Will dated 10.11.2010. The petitioner'defendant contested the suit by filing a written
statement dated 18.02.2021, asserting that rent since the year 2010 had not been paid to the plaintiff
but was being received by one Devendra Kumar Tripathi, son of Satyawati Tripathi, original owner
of the premises. It was further pleaded that the Will dated 10.11.2010 relied upon by the plaintiff
stood cancelled by a subsequent Will dated 21.01.2012 executed by the original owner, who
admittedly died on 23.04.2019. According to the defendant, rent continued to be received by
Devendra Kumar Tripathi both prior to and after the death of the original owner.

4. In the replication, the plaintiff admitted that Devendra Kumar Tripathi had been receiving
rent earlier, though she claimed that thereafter she became entitled to receive rent. During trial,
PW-1, namely Karmendra Tripathi, admitted in his cross-examination that the signatures appearing
on the rent receipts, marked as paper nos. 81-Ga to 86-Ga, were those of Devendra Kumar Tripathi
and that the said signatures tallied with the originals.

5. The defendant entered the witness box as DW-1 and filed his affidavit in evidence, wherein
he categorically stated that rent was received by Devendra Kumar Tripathi and that rent receipts
were issued by him. Original rent receipts bearing the signatures of Devendra Kumar Tripathi were
also brought on record. However, during cross-examination dated 16.12.2024, DW-1 made a
statement to the effect that Devendra Kumar Tripathi did not issue rent receipts. It is not in dispute
that at the time when this statement was recorded, the counsel for the defendant was not present.

6. Despite the apparent inconsistency between the affidavit and the statement made during
cross-examination, the plaintiff's counsel did not confront DW-1 with his earlier affidavit or with
the rent receipts on record, as required under Section 145 of the Evidence Act. Nor was DW-1
afforded any opportunity to explain the discrepancy. Thus, on a cumulative reading of the material
on record, there existed three apparently consistent pieces of evidence supporting the case that rent
was received by Devendra Kumar Tripathi and rent receipts were issued by him, namely, the
admission of the plaintiff in the replication, the admission of PW-1 in cross-examination, and the
categorical statement of DW-1 in his affidavit in evidence.

7. In these circumstances, the defendant filed Application No. 99C-2/99Ga under Sections 137
and 138 of the Evidence Act seeking re-examination of DW-1 strictly for the purpose of clarifying
the ambiguity created by the statement made during cross-examination, without seeking to
introduce any additional or fresh evidence. The Trial Court rejected the application by order dated
760 INDIAN LAW REPORTS ALLAHABAD SERIES
04.02.2025, holding that the prayer amounted to filling up lacunae in the evidence. The Revisional
Court, by order dated 19.09.2025, affirmed the rejection, observing that the power under Order
XVIII Rule 17 CPC is to be exercised sparingly, that the inconsistency arose from statements of
different witnesses, and that the application appeared to be an attempt to fill up deficiencies at a
belated stage when the suit was ripe for final arguments and subject to directions for expeditious
disposal.

8. Learned counsel for the petitioner has contended that both courts below have misdirected
themselves in law by mechanically branding the request for re-examination as an attempt to fill up
lacunae, without appreciating the settled distinction between curing a defect in evidence and
clarifying an ambiguity arising on record. It is submitted that the alleged contradiction was never
put to DW-1 in accordance with Section 145 of the Evidence Act and therefore could not be treated
as a contradiction in the eye of law. Denial of re-examination, it is urged, has resulted in serious
prejudice and denial of a fair opportunity, warranting interference under Article 227 of the
Constitution.

9. Per contra, learned counsel for the respondent has supported the impugned orders,
submitting that Order XVIII Rule 17 CPC does not confer a right upon a party to recall or reexamine a witness and that the discretion exercised by the courts below does not suffer from any
perversity or jurisdictional error.

10. The law on the subject is no longer res integra. In Shubhkaran Singh vs. Abhayraj
Singh1, it has been authoritatively held that the power under Order XVIII Rule 17 CPC is
necessary for the proper conduct of a case and can be exercised by the Court at any stage, even at
the stage of writing judgment. It was, however, simultaneously emphasized that such power is to be
exercised sparingly and only in exceptional situations, and that its object is confined to removing
ambiguities or clarifying statements and not to fill up lacunae in a party's case. It was further
observed that while the power under Order XVIII Rule 17 primarily vests in the Court, recall or reexamination at the instance of a party may, in appropriate cases, be permitted in the exercise of
inherent powers under Section 151 CPC.

11. The position was reiterated in K.K. Velusamy vs. N. Palanisamy2, wherein it was
underscored that Order XVIII Rule 17 CPC is primarily intended to enable the Court to clarify any
doubt or issue arising from the evidence on record, and that procedural provisions are meant to
advance justice and not to thwart it. It was observed that where the application is bona fide and the
clarification sought would assist the Court in rendering justice, the discretion to recall or reexamine a witness may be exercised, subject to appropriate safeguards against delay or abuse of the
process of the Court.

12. At the same time, in Vadiraj Naggappa Vernekar vs. Sharadchandra Prabhakar
Gogate3, it was cautioned that recall cannot be permitted to fill omissions or lacunae noticed after
cross-examination, and that the power must be exercised judiciously and not as a matter of routine.

13. The consistent thread running through the aforesaid decisions is that the determinative
factor is the object and purpose of the recall or re-examination. If the exercise is aimed at repairing
2 All. Shri Gopal Kishan Khandelwal Vs. Smt. Archana Tripathi
761
a weak case or introducing evidence that was available but deliberately withheld, it would amount
to filling up lacunae. However, where an apparent ambiguity arises on record, particularly one that
goes to the root of the matter, and where clarification would assist the Court in arriving at the truth
without causing prejudice to the opposite party, refusal to permit such clarification would defeat the
ends of justice.

14. The legal principles governing the exercise of power under Order XVIII Rule 17 CPC, as
crystallised by settled judicial precedents, may be summarised as follows:

14.1 Order XVIII Rule 17 CPC confers a discretionary power upon the Court to recall
any witness at any stage of the proceedings, including even at the stage of writing the judgment, if
such recall is found necessary for the proper adjudication of the case.

14.2 The power under Order XVIII Rule 17 CPC is primarily intended to enable the
Court itself to clarify any ambiguity, doubt or inconsistency in the evidence already on record, so
as to arrive at the truth and render a just decision.

14.3 The said power is discretionary in nature and is to be exercised sparingly, cautiously
and in exceptional circumstances, and not as a matter of routine or merely because recall would not
cause prejudice to the opposite party.

14.4 Recall of a witness under Order XVIII Rule 17 CPC cannot be permitted for the
purpose of filling up omissions, repairing weaknesses, or curing lacunae in the evidence already
adduced by a party.

14.5 The power of recall primarily vests in the Court and may be exercised suo motu or at
the instance of a party, but only where the Court is satisfied that such recall is necessary for the
proper conduct of the case and for removal of an ambiguity in the evidence.

14.6 Order XVIII Rule 17 CPC is not intended to provide a right to a party to recall and
re-examine a witness merely because, upon hindsight, a party perceives inadequacy or
inconsistency in its earlier examination of the witness.

14.7 Where an application for recall is bona fide in nature and is confined to seeking
clarification of an apparent inconsistency or ambiguity, and where such clarification would assist
the Court in arriving at the truth, recall may be permitted, subject to appropriate safeguards.

14.8 While allowing recall, the Court must ensure that the process is not misused as a
delaying tactic, and must impose suitable conditions, including limitation of the scope of
examination, denial of unnecessary adjournments, and expeditious conclusion of the proceedings.

14.9 The controlling and determinative test is whether the recall is sought to fill up
lacunae in the evidence, which is impermissible, or to reconcile inconsistencies and clarify
ambiguities, which is permissible and may be necessary to prevent failure of justice.
762 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In the present case, the affidavit of DW-1, the pleadings and the admission of PW-1 form a
consistent evidentiary foundation. The isolated statement made by DW-1 during cross-examination,
recorded in the absence of his counsel and without being confronted as required by Section 145 of
the Evidence Act, has created an apparent ambiguity rather than exposing any deliberate omission.
The prayer for re-examination is confined strictly to clarifying this ambiguity and does not seek to
introduce any new material. Treating such a request as an attempt to fill up lacunae reflects a
misapplication of the settled legal position and amounts to a failure to exercise jurisdiction vested
in the court.

16. The supervisory jurisdiction of this Court under Article 227 of the Constitution of India is
intended to ensure that subordinate courts act within the bounds of their authority, exercise
jurisdiction vested in them in accordance with law, and adhere to the principles of natural justice.
Though this Court does not sit as a court of appeal over interlocutory or procedural orders, it is
duty-bound to intervene where refusal to exercise jurisdiction results in manifest injustice or denial
of a fair opportunity to a party. Procedural law, as repeatedly held by the Supreme Court in
Sangram Singh vs. Election Tribunal, Kotah4 and State of Punjab vs. Shamlal Murari5, is the
handmaid of justice and must be applied in a manner that advances, rather than obstructs,
substantive justice.

17. It has been pointed out that the next date fixed before the Trial Court is 10th February,
2026. Learned counsel for the petitioner has undertaken that DW-1 shall be produced on the said
date and that no adjournment shall be sought. Learned counsel for the respondent has fairly stated
that he has no objection if the witness is examined on the said date strictly for the limited purpose
of clarifying the ambiguity regarding issuance of rent receipts by Devendra Kumar Tripathi.

18. In view of the aforesaid discussion, this Court is of the considered opinion that the
ends of justice would be served by permitting recall of DW-1, strictly for the limited and
specific purpose of clarifying the ambiguity arising from the statement made by him during
cross-examination, which stands at variance with his affidavit and the other evidence on
record. Such recall shall not be construed as permitting the petitioner to fill up any lacuna
in the evidence, but only as an aid to the Court in arriving at a just and proper adjudication
of the controversy. The impugned orders dated 04.02.2025 passed by the Judge, Small
Causes Court, Kanpur Nagar in SCC Suit No.12 of 2020 and dated 19.09.2025 passed in
SCC Revision No.81 of 2025 are, therefore, unsustainable in law and are accordingly set
aside.

19. The petition is, consequently, disposed of with a direction that on the next date
fixed before the Trial Court, i.e. 10th February, 2026, the witness DW-1 shall be produced
by the tenant-defendant and shall be examined by the Trial Court strictly within the
aforesaid limited scope. No adjournment shall be granted to either of the parties on the said
date. The Trial Court shall thereafter proceed to conclude the suit expeditiously, in
accordance with law. It is made abundantly clear that in the event of failure on the part of
the tenant-defendant to produce or examine the aforesaid witness on the said date, no
further opportunity shall be granted for recall or re-examination of DW-1, and the Trial
Court shall proceed to decide the suit on the basis of the evidence already on record.
2 All. Vijendra Singh & Ors. Vs. Jai Bhagwan & Ors.
763
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(2026) 2 ILRA 763
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.02.2026

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Matters Under Article 227 No. 1534 of 2015
connected with
Matters Under Article 227 No. 1535 of 2015

Vijendra Singh & Ors. ...Petitioners
Versus
Jai Bhagwan & Ors. ...Respondent

Issue for Consideration
Whether there was an obligation upon the plaintiff to honour the decree which attained finality upto the
Hon'ble Supreme Court in his favour but he failed to discharge the same and did not deposit the balance
money as required under the first appellate court's judgment and order, the contract stood rescinded in view
of Section 28 of the Act, 1963 and, therefore, both the orders impugned are liable to be set aside.

Head Notes
The Constitution of India, 1950-Article 227; The Specific Relief Act, 1963- Section 28; The Code
of Civil Procedure, 1908-Section 47 & 148- The nature of application 10-C certainly reflects the
intention of the decree-holder to deposit the balance money and, for that purpose, he rightly
sought permission from the court to pass the tender, in absence whereof he could not go ahead
with the execution.

Once the application was allowed in the year 2011, in terms of the order impugned in the
petition, it would certainly amount to extension/enlargement of time to make deposit- Neither
Section 28 of the Specific Relief Act, 1963 nor Section 148 of C.P.C. provides for the starting
point of the exercise of power to grant further time or to enlarge the same. The legislative intent
speaks only of discretion of the Court to do so depending on the facts of a case. The only
embargo, if at all it can be put on the power of the Court, may be felt from Section 148 C.P.C.
where power to enlarge time has been restricted 'not beyond thirty days in total', but that is the
outer limit for enlargement of time and not the starting point thereof. At the same time, there is
no such apparent statutory restriction under Section 28 of the Specific Relief Act, 1963. Hence,
the question as to when did the decree-holder move application 10-C becomes redundant.

Even if time of one (1) month for making deposit of amount is computed from the date of
decision of Hon'ble Supreme Court, since Civil Appeal was dismissed on 09.12.2004, one month
period would begin to run from the said date and would end on 09.01.2005 and, on or before the
said date, the decree holder should have deposited the balance amount. In the opinion of the
Court, even in that situation, the occasion to seek extension/enlargement of time would arise
only after 09.01.2005 and not before that. Therefore, moving of application 10-C seeking to clear
the tender of Rs. 95,000/- on 06.02.2005 was a rightful act on his part and there was no delay in
moving the same. Delay, if any, could be of 28 days but cannot be said to be fatal to claim of
decree-holder so as to frustrate the decree affirmed upto Hon'ble Supreme Court or hold the
contract as rescinded. Therefore, timing, stage, nature and contents of application 10-C are