Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.2795-2796 OF 2011
[Arising out of SLP [C] Nos.18211-18212 of 2010]
K.K.Velusamy ... Appellant
vs.
N.Palanisamy ... Respondent
J U D G M E N T
R.V.RAVEENDRAN,J.
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
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execute 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
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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
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9.50 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
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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.
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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.
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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
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218; 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.
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(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
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applicant 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
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and 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
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because 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
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execution 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
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fide 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
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recording 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).
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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)
New Delhi; ............................J.
March 30, 2011. (A. K. Patnaik)
