K K Velusamy Vs N Palanisamy: Consideration Of Call Recordings Is A Relevant Fact, And Admitting Them As Evidence Under Section 151 Of CPC Is Permissible

Bench:
Justice R V Raveendran, Justice A K Pattnaik

Appellant:
K K Velusamy

Respondent:
N. Palanisamy

Issue

Did the appellant-defendant enter into a registered agreement of sale?

Whether applications for reopening of evidence and recalling of witnesses can be allowed by Courts under Section 151 of the Code of Civil Procedure?

Facts

• A suit for specific performance of a contract was filed by the respondent. The contract was entered into by him and the appellant for a consideration. The respondent had paid an advance and the appellant had agreed to execute the sale deed upon receiving the remaining amount within three months.
• Accordingly, the respondent waited at the Sub-Registrar’s office for the said execution and the appellant did not show up.
• Owing to these circumstances, the respondent urged for specific performance of the contract alongside the interest.

Appellant’s contentions

• It was contended by the appellant that since the respondent is a money lender, a loan of ₹ 1,50,000 was taken from him in lieu of blank signed papers signed by the appellant.
• A compact disc was presented by the appellant. This disk contained recordings of calls between the appellant, the respondent, and three other individuals involved in the case.
• Through this electronically presented evidence, the appellant sought to prove that the agreement of sale was only made as a security for the loan.

Respondent’s contentions

• The respondent opposed that the electronically presented evidence was false. It was contended that it was a result of mimicry artists.
• He contended that the application was a dilatory tactic to drag on the proceedings.

Relevant Paragraphs ( Paragraph Numbers 8, 10, 16, 17 of the Original Judgement)

1. A Court, either on its own (suo moto) or on an application by a party on their behalf, can exercise its power of recalling witnesses under Order XVIII Rule 17 of the Code. This power of the Court is discretionary, and the Court must apply it only in relevant cases.
2. The power to reopen the evidence is not provided anywhere in the Code. However, Section 151 of the Code empowers a Court with some inherent powers for the purpose of securing the ends of justice and preventing the abuse of the process of law. Since there is no specific provision regarding the reopening/recalling, a Court may consider the same under Section 151 of the Code.
3. The power under Section 151 and Order XVIII Rule 17 must be exercised cautiously, and only in appropriate circumstances. The Court should award appropriate costs, and make sure that there is no delay in the proceedings thereafter. If an application in this regard is found to have been filed with some mala fide intention, it should be rejected with heavy costs.

Judgement

These appeals were allowed in part. The orders of the High Court and Trial Court dismissing the application under section 151 of the Code were set aside. The orders are affirmed in regards to the dismissal of IA Non 217/2009 under Order 18 Rule 17 of the Code.

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