K.K.Velusamy vs. N. Palanisamy
J U D G M E N T
R.V.RAVEENDRAN J.
1.
Leave
granted.
2.
The
respondent herein has filed a suit for specific performance (OS No.48/2007)
alleging that the appellant-defendant entered into a registered agreement of sale
dated 20.12.2006 agreeing to sell the suit schedule property to him, for a consideration
of Rs.240,000/-; that he had paid Rs.160,000/- as advance on the date of
agreement; that the appellant agreed to execute a sale deed by receiving the
balance of Rs.80,000/- within three months from the date of sale; that he was
ready and willing to get the sale completed and issued a notice dated 16.3.2007
calling upon the appellant to 2execute the sale deed on 20.3.2007; and that he
went to the Sub-Registrar's office on 20.3.2007 and waited, but the appellant
did not turn up to execute the sale deed. On the said averments, the respondent
sought specific performance of the agreement of sale or alternatively refund of
the advance of Rs.160,000/- with interest at 12% per annum from 20.12.2006.
3.
The
appellant resisted the suit. He alleged that he was in need of Rs.150,000 and
approached the respondent who was a money lender, with a request to advance him
the said amount as a loan; that the respondent agreed to advance the loan but insisted
that the appellant should execute and register a sale agreement in his favour
and also execute some blank papers and blank stamp-papers, as security for the
repayment of the amount to be advanced; and that trusting the respondent, the
appellant executed the said documents with the understanding that the said documents
will be the security for the repayment of the loan with interest. The appellant
therefore contended that the respondent - plaintiff was not entitled to specific
performance.
4.
The
suit was filed on 26.3.2007. The written statement was filed on 12.9.2007.
Thereafter issues were framed and both parties led evidence. On 11.11.2008 when
the arguments were in progress, the appellant filed two applications (numbered
as IA No.216/2009 and IA No.217/2009). The first application was filed under section
151 of the Code of Civil Procedure (`Code' for short) with a prayer to reopen
the evidence for the purpose of further cross-examination of Plaintiff (PW1) and
the attesting witness Eswaramoorthy (PW2). IA No.217/2009 was filed under Order
18 Rule 17 of the Code for recalling PWs.1 and 2 for further cross examination.
The appellant wanted to cross-examine the witnesses with reference to the admissions
made during some conversations, recorded on a compact disc (an electronic
record). In the affidavits filed in support of the said applications, the appellant
alleged that during conversations among the appellant, respondent and three
others (Ponnuswamy alias Krishnamoorthy, Shiva and Saravana Kumar), the respondent-plaintiff
admitted that Eswaramoorthy (PW2) had lent the amount (shown as advance in the
agreement of sale) to the appellant through the respondent; and that during
another conversation among the appellant, Eswaramoorthy and Shiva, the said Eswaramoorthy
(PW2) also admitted that he had lent the amount (mentioned in the agreement of
sale advance) through the respondent; that both conversations were recorded by a
digital voice recorder; that conversation with plaintiff was recorded on 27.10.2008
between 8 a.m. to 9.45 a.m. and the conversation with Eswaramoorthy was
recorded on 31.10.2008 between 7 to 49.50 p.m.; and that it was therefore necessary
to reopen the evidence and further cross-examine PW1 and PW2 with reference to
the said admissions (electronically recorded evidence) to demonstrate that the
agreement of sale was only a security for the loan. It is stated that the
Compact Disc containing the recording of the said conversations was produced along
with the said applications.
5.
The
respondent resisted the said applications. He denied any such conversations or
admissions. He alleged that the recordings were created by the appellant with
the help of mimicry specialists and Ponnuswamy, Shiva and Saravana Kumar. He
contended that the application was a dilatory tactic to drag on the
proceedings.
6.
The
trial court, by orders dated 9.9.2009, dismissed the said applications. The trial
court held that as the evidence of both parties was concluded and the arguments
had also been heard in part, the applications were intended only to delay the
matter. The revision petitions filed by the appellant challenging the said
orders, were dismissed by the High Court by a common order dated 7.4.2010,
reiterating the reasons assigned by the trial court. The said order is challenged
in these appeals by special leave. The only question that arises for consideration
is whether the applications for reopening/recalling ought to have been allowed.
7.
The
amended definition of "evidence" in section 3 of the Evidence Act,
1872 read with the definition of "electronic record" in section 2(t)
of the Information Technology Act 2000, includes a compact disc containing an electronic
record of a conversation. Section 8 of Evidence Act provides that the conduct
of any party, or of any agent to any party, to any suit, in reference to such
suit, or in reference to any fact in issue therein or relevant thereto, is
relevant, if such conduct influences or is influenced by any fact in issue or
relevant fact, and whether it was previous or subsequent thereto. In R.M
Malkani vs. State of Maharastra - AIR 1973 SC 157, this court made it clear
that electronically recorded conversation is admissible in evidence, if the
conversation is relevant to the matter in issue and the voice is identified and
the accuracy of the recorded conversation is proved by eliminating the possibility
of erasure, addition or manipulation. This Court further held that a contemporaneous
electronic recording of a relevant conversation is a relevant fact comparable to
a photograph of a relevant incident and is admissible as evidence under Section
8 of the Act. There is therefore no doubt that such electronic record can be
received as evidence.
8.
Order
18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any
witness who has been examined (subject to the law of evidence for the time
being in force) and put such questions to him as it thinks fit. The power to
recall any witness under Order 18 Rule 17 can be exercised by the court either
on its own motion or on an application filed by any of the parties to the suit requesting
the court to exercise the said power. The power is discretionary and should be
used sparingly in appropriate cases to enable the court to clarify any doubts
it may have in regard to the evidence led by the parties. The said power is not
intended to be used to fill up omissions in the evidence of a witness who has already
been examined. [Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate
- 2009 (4) SCC 410]. Order 18 Rule 17 of the Code is not a provision intended to
enable the parties to recall any witnesses for their further examination-in-chief
or cross-examination or to place additional material or evidence which could
not be produced when the evidence was being recorded. Order 18 Rule 17 is
primarily a provision enabling the court to clarify any issue or doubt, by
recalling any witness either suo moto, or at the request of any party, so that
the court itself can put questions and elicit answers. Once a witness is recalled
for purposes of such clarification, it may, of course, permit the parties to
assist it by putting some questions.
9.
There
is no specific provision in the Code enabling the parties to re-open the
evidence for the purpose of further examination-in-chief or cross-examination. Section
151 of the Code provides that nothing in the Code shall be deemed to limit or
otherwise affect the inherent powers of the Code to make such orders as may be
necessary for the ends of justice or to prevent the abuse of the process of the
court. In the absence of any provision providing for re-opening of evidence or recall
of any witness for further examination or cross-examination, for purposes other
than securing clarification required by the court, the inherent power under
section 151 of the Code, subject to its limitations, can be invoked in
appropriate cases to re-open the evidence and/or recall witnesses for further examination.
This inherent power of the court is not affected by the express power conferred
upon the court under Order 18 Rule 17 of the Code to recall any witness to enable
the court to put such question to elicit any clarifications.
10.
The
respondent contended that section 151 cannot be used for re-opening evidence or
for recalling witnesses. We are not able to accept the said submission as an
absolute proposition. We however agree that section 151 of the Code cannot be routinely
invoked for reopening evidence or recalling witnesses. The scope of section 151
has been explained by this Court in several decisions (See : Padam Sen vs.
State of UP-AIR 1961 SC 8218; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC
527; Arjun Singh vs. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar
Mills (P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899; Nain Singh vs. Koonwarjee - 1970
(1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India - AIR 1976 SC
1152; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi
- AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences
vs. C Parameshwara - 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj - 2010
(8) SCC 1). We may summarize them as follows: (a) Section 151 is not a substantive
provision which creates or confers any power or jurisdiction on courts. It
merely recognizes the discretionary power inherent in every court as a necessary
corollary for rendering justice in accordance with law, to do what is `right'
and undo what is `wrong', that is, to do all things necessary to secure the
ends of justice and prevent abuse of its process. (b) As the provisions of the Code
are not exhaustive, section 151 recognizes and confirms that if the Code does not
expressly or impliedly cover any particular procedural aspect, the inherent power
can be used to deal with such situation or aspect, if the ends of justice warrant
it. The breadth of such power is co-extensive with the need to exercise such
power on the facts and circumstances. 9(c) A Court has no power to do that which
is prohibited by law or the Code, by purported exercise of its inherent powers.
If the Code contains provisions dealing with a particular topic or aspect, and such
provisions either expressly or necessary implication exhaust the scope of the
power of the court or the jurisdiction that may exercised in relation to that
matter, the inherent power cannot be invoked in order to cut across the powers conferred
by the Code or a manner inconsistent with such provisions. In other words the
court cannot make use of the special provisions of Section 151 of the Code,
where the remedy or procedure is provided in the Code. (d) The inherent powers
of the court being complementary to the powers specifically conferred, a court is
free to exercise them for the purposes mentioned in Section 151 of the Code
when the matter is not covered by any specific provision in the Code and the
exercise of those powers would not in any way be in conflict with what has been
expressly provided in the Code or be against the intention of the Legislature. (e)
While exercising the inherent power, the court will be doubly cautious, as there
is no legislative guidance to deal with the procedural situation and the exercise
of power depends upon the discretion and wisdom of the court, and the facts and
circumstances of the case. The absence of an express provision in the code and
the recognition and saving of the inherent power of a court, should not however
be treated as a carte blanche to grant any relief. (f) The power under section 151
will have to be used with circumspection and care, only where it is absolutely
necessary, when there is no provision in the Code governing the matter, when
the bona fides of the 10applicant cannot be doubted, when such exercise is to meet
the ends of justice and to prevent abuse of process of court.
11.
The
Code earlier had a specific provision in Order 18 Rule 17A for production of
evidence not previously known or the evidence which could not be produced
despite due diligence. It enabled the court to permit a party to produce any evidence
even at a late stage, after the conclusion of his evidence if he satisfied the court
that even after the exercise of due diligence, the evidence was not within his knowledge
and could not be produced by him when he was leading the evidence. That provision
was deleted with effect from 1.7.2002. The deletion of the said provision does not
mean that no evidence can be received at all, after a party closes his evidence.
It only means that the amended structure of the Code found no need for such a provision,
as the amended Code contemplated little or no time gap between completion of evidence
and commencement and conclusion of arguments. Another reason for its deletion was
the misuse thereof by the parties to prolong the proceedings under the pretext of
discovery of new evidence.
12.
The
amended provisions of the Code contemplate and expect a trial court to hear the
arguments immediately after the completion of evidence 11and then proceed to judgment.
Therefore, it was unnecessary to have an express provision for re-opening the
evidence to examine a fresh witness or for recalling any witness for further
examination. But if there is a time gap between the completion of evidence and hearing
of the arguments, for whatsoever reason, and if in that interregnum, a party comes
across some evidence which he could not lay his hands earlier, or some evidence
in regard to the conduct or action of the other party comes into existence, the
court may in exercise of its inherent power under section 151 of the Code, permit
the production of such evidence if it is relevant and necessary in the interest
of justice, subject to such terms as the court may deem fit to impose.
13.
The
learned counsel for respondent contended that once arguments are commenced, there
could be no re-opening of evidence or recalling of any witness. This contention
is raised by extending the convention that once arguments are concluded and the
case is reserved for judgment, the court will not entertain any interlocutory application
for any kind of relief. The need for the court to act in a manner to achieve
the ends of justice (subject to the need to comply with the law) does not end
when arguments are heard and judgment is reserved. If there is abuse of the
process of the court, or if interests of justice require the court to do something
or take note of something, the discretion to do those things does not disappear
merely 12because the arguments are heard, either fully or partly. The
convention that no application should be entertained once the trial or hearing
is concluded and the case is reserved for judgment is a sound rule, but not a
straitjacket formula. There can always be exceptions in exceptional or extra-ordinary
circumstances, to meet the ends of justice and to prevent abuse of process of court,
subject to the limitation recognized with reference to exercise of power under section
151 of the Code. Be that as it may. In this case, the applications were made
before the conclusion of the arguments.
14.
Neither
the trial court nor the High court considered the question whether it was a fit
case for exercise of discretion under section 151 or Order 18 Rule 17 of the Code.
They have not considered whether the evidence sought to be produced would
either assist in clarifying the evidence led on the issues or lead to a just
and effective adjudication. Both the courts have mechanically dismissed the application
only on the ground that the matter was already at the stage of final arguments
and the application would have the effect of delaying the proceedings.
15.
The
appellant - defendant has taken a consistent stand in his reply notice, written
statement and evidence that the agreement of sale was executed to secure a loan
of Rs.150,000, as the respondent insisted upon 13execution and registration of such
agreement. If after the completion of recording of evidence, PW1 and PW2 had admitted
during conversations that the amount paid was not advance towards sale price,
but only a loan and the agreement of sale was obtained to secure the loan, that
would be material evidence which came into existence subsequent to the recording
of the depositions, having a bearing on the decision and will also clarify the evidence
already led on the issues. According to the appellant, the said evidence came into
existence only on 27.10.2008 and 31.10.2008, and he prepared the applications
and filed them at the earliest, that is on 11.11.2008. As defendant could not
have produced this material earlier and if the said evidence, if found valid
and admissible, would assist the court to consider the evidence in the correct
perspective or to render justice, it was a fit case for exercising the discretion
under section 151 of the Code. The courts below have not applied their minds to
the question whether such evidence will be relevant and whether the ends of
justice require permission to let in such evidence. Therefore the order calls
for interference.
16.
We
may add a word of caution. The power under section 151 or Order 18 Rule 17 of
the Code is not intended to be used routinely, merely for the asking. If so
used, it will defeat the very purpose of various amendments to the Code to
expedite trials. But where the application is found to be bona 14fide and where
the additional evidence, oral or documentary, will assist the court to clarify
the evidence on the issues and will assist in rendering justice, and the court is
satisfied that non-production earlier was for valid and sufficient reasons, the
court may exercise its discretion to recall the witnesses or permit the fresh
evidence. But if it does so, it should ensure that the process does not become a
protracting tactic. The court should firstly award appropriate costs to the other
party to compensate for the delay. Secondly the court should take up and
complete the case within a fixed time schedule so that the delay is avoided.
Thirdly if the application is found to be mischievous, or frivolous, or to
cover up negligence or lacunae, it should be rejected with heavy costs. If the
application is allowed and the evidence is permitted and ultimately the court finds
that evidence was not genuine or relevant and did not warrant the reopening of the
case recalling the witnesses, it can be made a ground for awarding exemplary
costs apart from ordering prosecution if it involves fabrication of evidence.
If the party had an opportunity to produce such evidence earlier but did not do
so or if the evidence already led is clear and unambiguous, or if it comes to the
conclusion that the object of the application is merely to protract the proceedings,
the court should reject the application. If the evidence sought to be produced is
an electronic record, the court may also listen to the 15recording before
granting or rejecting the application.
17.
Ideally,
the recording of evidence should be continuous, followed by arguments, without
any gap. Courts should constantly endeavour to follow such a time schedule. The
amended Code expects them to do so. If that is done, applications for adjournments,
re-opening, recalling, or interim measures could be avoided. The more the
period of pendency, the more the number of interlocutory applications which in turn
add to the period of pendency.
18.
In
this case, we are satisfied that in the interests of justice and to prevent abuse
of the process of court, the trial court ought to have considered whether it was
necessary to re-open the evidence and if so, in what manner and to what extent further
evidence should be permitted in exercise of its power under section 151 of the
Code. The court ought to have also considered whether it should straightway
recall PW1 and PW2 and permit the appellant to confront the said recorded evidence
to the said witnesses or whether it should first receive such evidence by requiring
its proof of its authenticity and only then permit it to be confronted to the witnesses
(PW1 and PW2).
19.
In
view of the above, these appeals are allowed in part. The orders of the High Court
and Trial Court dismissing IA No. 216/2009 under section 151 of the Code are
set aside. The orders are affirmed in regard to the dismissal of IA No.217/2009
under Order 18 Rule 17 of the Code. The trial court shall now consider IA No.216/2009
afresh in accordance with law.
..............................J.
(R. V. Raveendran)
..............................J.
(A. K. Patnaik)
New
Delhi;
March
30, 2011.
Back