Without prejudice admissions in failed settlement talks are not evidence, and witness recall cannot be used to prove them.

Order XVIII Rule 17 CPC does not permit recall of a witness to introduce fresh evidence, and Rule 17A applies only where evidence could not earlier be produced despite due diligence. A compromise petition that had not matured into a binding settlement, and which contained admissions made during failed negotiations, could not be used to prove those admissions on recall. Section 23 of the Evidence Act excludes statements made in settlement discussions when the parties intended they should not be used as evidence, treating them as without prejudice. The trial court was justified in refusing recall of the witnesses.

---

---

Issues: Whether admissions contained in an unacted compromise petition could be brought on record by recalling witnesses for further examination.

Analysis: The applications to recall the witnesses were sought for exhibiting the compromise petition and proving admissions contained therein. Order XVIII, Rule 17 of the Code of Civil Procedure, 1908 does not confer on a party a right to recall a witness for leading fresh evidence, and the alternative power under Order XVIII, Rule 17A of the Code of Civil Procedure, 1908 is available only where evidence could not earlier be produced despite due diligence. The compromise petition had not become a binding compromise and the admissions contained in it arose in the course of settlement negotiations. In such circumstances, Section 23 of the Indian Evidence Act, 1872 renders the admissions irrelevant where the parties intended that they should not be used as evidence, and statements made during failed compromise talks are treated as without prejudice.

Conclusion: The witnesses could not be recalled for the purpose of proving the admissions in the compromise petition, and the trial court's refusal to permit such recall was justified.

---