Recalling the witness – Understanding the phenomenon of multiple cross examinations in the context of arbitration

Gibran Naushad & Susanah Naushad ]


Gibran Naushad is an Associate at S&R Associates, New Delhi and Susanah Naushad is an Associate at Khaitan & Co., New Delhi.


It is often said that cross-examinations can make or break a trial, a testimony to the importance of the process in the overall scheme of adjudication. There are, however, different ways in which one could approach cross-examination, depending on the nature of the case and the eventual result desired. Given the importance of cross-examinations in trial, situations are bound to arise where a party might want to conduct such examination again owing to its dissatisfaction with the previous cross-examination, amongst other factors. Such multiple cross-examinations are, however, a tricky terrain, and it is not in all cases that such repetition would be allowed. This is particularly true in the context of arbitrations, where the parties would have to primarily depend on the provisions of the Code of Civil Procedure, 1908 to carry out such a process.

The authors, through this post, try and explain the practical dimensions of cross examination and the options available to parties in case they are dissatisfied with a cross-examination already conducted. Case laws dealing with the subject would be looked at and an attempt would be made to understand the restrictions imposed on the parties to correct their mistakes or lapses by repeating a process that is germane to any trial.

Understanding The Practice Of Cross-Examination

Cross examination is one of the most vital constituents of trial. It becomes highly important to question the adversary on crucial facts relating to the matter to establish their falsehood or truthfulness, thereby establishing the credibility of such facts and claims to be taken up during the final arguments in the matter. There is no straightjacket formula for conducting cross-examination. The strategy and method could differ with different counsels. Additionally, the facts and circumstances of different cases along with the eventual result sought to be achieved would require different approaches to be adopted.

Certain counsels prefer to attack the witnesses on each and every fact, thereby posing straight questions to such witnesses and subsequently changing the orientation of such questions with each answer so as to direct the witness to their preferred answer. This ensures that the inability of the witnesses to answer correctly and comfortably the questions posed to them on certain facts and claims could be used against them at the time of making the final arguments in the matter. The other approach, however, is a more subtle approach wherein instead of questions, the counsel puts across certain suggestions which follow questions. The suggestions are meant to point towards the insufficiency in the answers to the questions. An example of such a suggestion could be – ‘I put it to you that you are lying about the illegal termination of the contract with Party X’. The aim behind putting such suggestions is to create an adverse inference against the party at the time of final arguments. Therefore, while the former approach is a head-on approach where the answers themselves bring out the adverse inference, the latter approach is a more nuanced approach where the counsel realizes that it would not be possible to extract such answers and it would be better to suggest adverse inferences.

In view of the fact that there is no fixed approach for conducting cross-examinations, there is a possibility that post the completion of the cross-examination; a party might feel that it wants to cross-examine its adversary again. The reasons for this could vary, from strategic lapses by the counsel to new facts coming on record which merit putting up the person on stand yet again. However, conducting such cross-examination for the second time is an uncertain proposition, particularly in the context of arbitration, and such strategy might not fly past the arbitrator in most cases. The Arbitration and Conciliation Act, 1996 (the “Act”) does not contain specific provisions for examination of the witnesses. However, Section 19 of the Act does stipulate that the parties are free to choose a procedure for the conduct of the arbitral proceedings.[1] Additionally, in case such procedure has not been agreed upon by the parties, the arbitral tribunal could conduct the proceedings in the manner it deems appropriate.[2]

The Act stipulates that the arbitral tribunal would not be bound by the Code of Civil Procedure, 1908 (the “Code”).[3]However, the Bombay High Court decision of Maharashtra State Electricity Board v. Datar Switchgear Limited[4] becomes important in this context. The Bombay High Court, while dealing with Section 19(1) of the Act clearly stated that Section 19(1) of the Act contained words of amplitude and not of restriction.[5] Therefore, though the arbitral tribunal is not bound by the Code, it could draw sustenance from the fundamental principles underlying the Code.[6] Order XVIII Rule 17 is one such provision from where sustenance can be drawn. The provision stipulates that the Court could at any stage of the suit recall a witness who has been examined and put such questions to the witness as the Court thinks fit. Therefore, if the Court is satisfied that there are grounds that exist for the recalling of the witness, cross-examination can be conducted on such witness again.

Order XVIII, Rule 17: Discretionary But Limited Scope of Recall

Order XVIII, Rule 17 is clearly a provision of the Code which could be used for recalling witnesses in arbitration proceedings. Though the provision stipulates that the Court can recall the witness on its own if it feels the need to do so, the parties could also make applications to invoke this provision and request the Court for such recalling. It has been held by the Punjab and Haryana High Court in the case of Om Prakash v. Sarupa[7] that the court could not only use Order XVIII, Rule 17 of the Code to recall a witness on its own but could also use this provision on an application made by the defendants. Similar views have been held by the Madras High Court in case of S.S.S. DuraiPandian v. S.A. SamuthiraPandian[8] and the Himachal Pradesh High Court in Om Prakash v. Sarupa[9].

The scope of this provision in terms of its invocation, however, is limited. The Allahabad High Court decision of Sunder Theatres v. Allahabad Bank[10] becomes important in this context. The Allahabad High Court held that while the power under Order XVIII, Rule 17 of the Code is discretionary, it has to be exercised with the greatest care and only in exceptional circumstances. It was further stipulated that this provision could not be used to fill up lacuna in the evidence already led by one of the parties.[11] Similar stipulations were laid down in the Rajasthan High Court decision in Jodhpur Gums & Chemicals (P) Ltd v. Punjab National Bank[12] where it was held that the Courts have to be careful while allowing such an application for recall of a witness. It was held that caution needs to be taken that such an application does not lead to prejudice to any of the parties (the defendants in that particular case).[13] While the other party needs to be compensated in costs, it should also be given a chance to recall witness/witnesses if it so desires.[14]

The Supreme Court stepped into this debate through the case of Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate[15]. The Supreme Court categorically stated that the main purpose of the rule was to enable the Court, while trying a case, to clarify any doubts that the Court might have with regards to the evidence led by the parties.[16] However, the Supreme Court clarified that the provision was not meant to fill up omissions or lapses in the evidence of a witness who has already been called to the stand. It was also stated that the provision was to be exercised sparingly, and the mere fact that its invocation would not cause prejudice to the other party would not be enough reason for making an application under the provision.[17]

We then have the Supreme Court case of K.K. Velusamy v. N. Palanisamy[18]. While dealing with Order XVIII, Rule 17, the Court categorically stated this provision was not intended to enable parties to recall witnesses for their further cross examination or for purposes of placing additional material or evidence which could not be placed earlier.[19] The Court, however, touched upon Section 151 of the Code and stipulated that while there was no provision in the Code which provided for further cross-examination, the inherent powers under Section 151 of the Code could be invoked for meeting the ends of justice, and thereby for such further cross-examination. The Court mentioned that such inherent powers under Section 151 of the Code for further cross-examination would not be affected by Order 18 Rule 17 of the Code.

The Supreme Court continued this line of reasoning in Ram Rati v. Mange Ram[20] wherein the Court held that the basic purpose of Rule 17 is to clarify any doubt, and the parties could be permitted to assist the Court by examining the witnesses for the purpose of clarification required or permitted by the Court.[21] The Court, however, cautioned that this provision cannot be used for filing up any lacuna in the evidence. It was clarified by the Court that though Rule 17 was restrictive, the inherent power of the Court under Section 151 of the Code permitted the Court to re-open the evidence for further examination or cross examination and such power could be exercised at any stage of the suit.[22] However, as elaborated in K.K. Velusamy, the power under Section 151 of the Code would have to be used with circumspection and care and only when it is absolutely necessary to meet the ends of justice.[23]

The legal position that has been settled through the above cases is quite clear. Order XVIII, Rule 17 cannot be used for further elaboration on a ‘left-out point’ during the cross examination or to fill up any lacuna in the cross examination already conducted. The aid of Section 151 of the Code could be taken in certain cases, however, such usage is dependent on the Court being convinced that the evidence needs to be re-opened for meeting the ends of justice.

Inconsistent Conclusion: Tapping Into The Arbitrator’s Mandate

While there are limited powers that have been provided under the Code for re-opening of the evidence if desired by a party, it becomes important to look at the mandate that is put on the arbitrator to appreciate material documents, facts and evidence, and arrive at consistent conclusions on the basis of such evidence. This mandate invariably could in certain situations lead to the arbitrator desiring another cross-examination to analyze the evidence in a more nuanced manner.

One of the earliest cases that could come to the arbitrator’s aid in such a situation would be K.P. Poulose v. State of Kerala[24]. The Supreme Court held in that case that if the arbitrator arrives at a decision by ignoring material documents, then that would result in ‘misconduct’ by the arbitrator under Section 30(a) of the Arbitration Act, 1940 and the award would be set aside.[25] The same reasoning was followed in Seth Mohanlal Hiralal v. State of M.P[26], wherein the Supreme Court held that the arbitrator misconducted himself by ignoring two very material documents to arrive at a conclusion relating to the controversy between the parties.[27] The decision in Sathyanarayana Brothers v. T.N. Water Supply and Drainage Board[28] also held that ignorance of material documents by the arbitrator would vitiate the award.[29]

We also have the decision in Union of India v. Pundarikakshudu and Sons[30],wherein the Supreme Court held that if the arbitrator had determined the disputes between the parties without taking into consideration the relevant facts, the arbitrator would be committing legal misconduct.[31] Similarly, in MD, Army Welfare Housing Organization v. Sumangal Services (P) Ltd.[32],it was held that if an award suffered from non-application of mind or when a relevant fact was ignored by the arbitrator, then such an award is liable to be set aside.[33] The decision in Sumitomo Heavy Industries v. Oil and Natural Gas Corporation of India[34] also becomes important. The Supreme Court in Sumitomo held that if some relevant evidence has not been considered of if some inadmissible material has been taken into account for arriving at the finding, then such finding would be perverse.[35]

It therefore becomes clear that an obligation is put on the arbitrator to analyze all material facts and render a decision on the basis of such analysis. Ignorance of such facts would lead to perversity and setting aside of the award. On this basis, one could infer that it is well within the realm of the arbitrator to order another cross-examination if the arbitrator feels the cross-examination already conducted was not sufficient. If there is material on record that is relevant to the conclusion and has not been examined, the arbitrator in a sense has a duty to examine the same, even though such material was not put to the witnesses during the cross-examination. Since the award would eventually be set aside if all the material documents and facts are not taken on record, the arbitrator might as well make requisite corrections in his analysis by calling for another cross-examination.

This premise, however, can be contradicted by another plausible view that the arbitrator is only required to appreciate the evidence that it put to the arbitrator. If a document is on record but has not been put to the witnesses in cross-examination, then the arbitrator is not duty bound to appreciate the relevance of such documents. It would wholly be the fault of the concerned party that the document went unquestioned, and another cross-examination would not be ordered by the arbitrator to fill a lacuna in the cross-examination conducted earlier by the parties.







[1]Section 19(2), The Arbitration and Conciliation Act, 1996

[2]Section 19(3), The Arbitration and Conciliation Act, 1996

[3]Section 19(1), The Arbitration and Conciliation Act, 1996

[4]2003 105 (1) Bom.L.R. 937.



[7]AIR 1981 P&H 157

[8]AIR 1998 Mad 323

[9]AIR 1999 HP 72

[10]AIR 1999 All 14


[12]AIR 1999 Raj 38



[15](2009) 4 SCC 410



[18](2011) 11 SCC 275


[20]Civil Appeal No. 1684 of 2016 (Arising from S.L.P. (C) No. 22141 of 2013)

[21]Id¶ 11

[22]Id¶ 14

[23](2011) 11 SCC 275 ¶ 12

[24]AIR 1975 SC 1259

[25]Id¶ 6

[26](2003) 12 SCC 144

[27]Id¶ 6, 7

[28](2004) 5 SCC 314

[29]Id¶  13-16

[30](2003) 8 SCC 168

[31]Id¶ 23, 25, 31

[32](2004) 9 SCC 619

[33]Id¶ 72

[34](2010) 11 SCC 296

[35]Id¶ 42


One response to “Recalling the witness – Understanding the phenomenon of multiple cross examinations in the context of arbitration”

  1. ปั้มไลค์ Avatar

    Like!! Great article post.Really thank you! Really Cool.

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