Supreme Court of India
K.K. VELUSAMYversusN. PALANISAMY
- Citation
- 2011 INSC 243
- Decided
- 30 March 2011
- Disposal
- Case Partly allowed
- Bench
- R V RAVEENDRAN
Holding
The Court held that the trial court erred in dismissing the application under CPC s.151; the inherent power may be exercised to reopen evidence when material electronic evidence emerges, but the dismissal under Order 18 Rule 17 was proper.
Summary
The appellant, K.K. Velusamy, filed a suit for specific performance of a sale agreement, which he claimed was merely a security for a loan. After the evidence was closed, he sought to reopen the evidence and recall two witnesses to cross‑examine them about admissions recorded on a compact disc, alleging that the recordings showed the agreement was a loan security. The trial court dismissed the applications, deeming them dilatory, and the High Court affirmed. The Supreme Court held that the electronic recordings constitute "evidence" under the Evidence Act and that the inherent power under CPC s.151 may be exercised to reopen evidence when material facts emerge, even after closure of evidence, provided the ends of justice require it. Consequently, the Court set aside the dismissal of the application under s.151 but upheld the dismissal under Order 18 Rule 17, directing the trial court to consider the application afresh.
Issues considered
- The applicability of CPC s.151 and Order 18 Rule 17 to reopen evidence and recall witnesses after closure of evidence.
- The admissibility of electronic recordings on compact disc as evidence under the Evidence Act, 1872 and the Information Technology Act, 2000.
- Whether the material disclosed in the recordings warranted the exercise of inherent jurisdiction to prevent abuse of process and achieve justice.
Legislation cited
- Code of Civil Procedure, 1908s. 151, s. Order 18 Rule 17
- Indian Evidence Act, 1872s. 3, s. 8
- Information Technology Act, 2000s. 2(t)
Subjects
specific performancesale agreementloan securityelectronic evidenceCPC s.151Order 18 Rule 17reopening evidenceinherent jurisdictionadmissibility of electronic recordsprocedural law
Judgment
[2011] 4 S.C.R. 31
K.K. VELUSAMY A
v.
N. PALANISAMY
(Civil Appeal Nos. 2795-2796 of 2011)
MARCH 30, 2011
B
[R.V. RAVEENDRAN AND A. K. PATNAIK, JJ.]
CODE OF CIVIL PROCEDURE, 1908:
s.151 and Order 18, Rule 17 - Applications by defendant c
seeking to reopen evidence and to recall PWs for further
cross-examination - Suit for specific performance of
agreement of sale - Applications filed after closure of
evidence on the ground of admissions made by witnesses
subsequently in conversation recorded on a Compact Disc 0
- Rejected by trial court - Order upheld by High Court in
revision petitions - HELD: Neither the trial court nor the High
court considered the question whether it was a fit case for
exercise of discretion u/s 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 E
on the issues or lead to a just and effective adjudication -
Both the courts have mechanically dismissed the applications
only on the ground that the matter was already at the stage
of final arguments and the applications would have the effect
of delaying the proceedings - If after closure of evidence, the F
plaintiff and the attesting witness, subsequently, admitted
during conversation that the amount paid was not 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 recording of depositions, G
having a bearing on the decision and will also clarify the
evidence already led on the issues - It was a fit case for
exercising discretion uls 151 - Orders of High Court and trial
court dismissing the application uls 151 are set aside - Trial
31 H
32 SUPREME COURT REPORTS [2011)4 S.C.R.
A court would consider the said application afresh in accordance
with law - However, orders of High Court and trial court
dismissing the application under or. 18 r. 17 are affirmed.
s. 151 - Inherent power of the court - Principles
8 enunciated in various decisions of Supreme Court,
summarised in the instant judgment - Evidence Act, 1872 -
ss.3 and 8 - Information Technology Act, 2000 - s.2 (t).
Order 18, Rule 17 - Application to recall a witness who
has been examined - Exercise of power under Or. 18 r. 17 -
C Explained.
EVIDENCE ACT, 1872:
ss. 3 and 8 -"Evidence" read with "electronic record"
defined in s. 2(t) of Information Technology Act - Connotation
D of - Conversation recorded in a Compact Disc - Admissibility
of in evidence - Explained - Information Technology Act,
2000 - s.2(t).
In a suit for specific performance of agreement of
E sale, the defendant, after closure of the evidence, while
the arguments were in progress, filed I.A. No. 216/2009 u/
s 151 CPC seeking to re-open the evidence for further
cross examination of the plaintiff (PW 1) and the attesting
witness (PW 2). He also filed I.A. No. 217/2009 under Order
F 18, Rule 17 CPC for recalling PWs 1 and 2 for further
cross-examination. The applications were filed on the
ground that the plaintiff-respondent admitted in the
conversation, recorded on a compact disc that PW 2 had
lent the amount to the appellant through the plaintiff.
respondent and in another conversation PW 2 admitted
G that he had lent the said amount through the plaintiff-
respondent; that this would show that the agreement of
sale was only a security for the loan.
The plaintiff resisted the applications contending that
H the recordings were created with the help of mimicry
K.K. VELUSAMY v. N. PALANISAM'( 33
specialist and the applications were a dilatory tactic to A
drag on the proceedings. The trial court dismissed both
the applications holding that as the evidence of parties
had been concluded and the arguments also had been
heard in part, the applications were intended only to delay
the matter. The High Court declined to interfere in the B
revision petitions. Aggrieved, the defendant filed the
appeals.
Allowing the appeals in part, the court
HELD: 1.1. The amended definition of "evidence" in · C
s. 3 of the Evidence Act, 1872 read with the definition of
"electronic record" in s.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 D
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. This E
· Court in R.M. Malkani's case* has 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 u/s 8 of the Act. There is, therefore, no doubt F
that such electronic record can be received as evidence.
[para 7] [41-G-H; 42-A-C]
*R.M.Ma/kani vs. State of Maharashtra AIR 1973 SC 157
- relied on.
G
1.2. Order 18 Rule 17 CPC is primarily a provision
enabling the court to clarify any issue or doubt, it may
have in regard to the evidence led by the parties. It
enables the court, at any stage of a suit, to recall any
witness who has been examined (subject to the law o( H
34 SUPREME COURT REPORTS [2011] 4 S.C.R.
A evidence for the time being in force) and put such
questions to him as it thinks fit. The power can be
exercised by the court either on its own motion or on an
application filed by any of the parties to the suit . The
power is discretionary and should be used sparingly in
B appropriate cases. The said power is not intended to be
used to fill up omissions in the evidence of a witness
who has already been examined; nor is the provision
intended to enable the parties to recall any witnesses for
their further examination-in-chief or cross-examination or
c to place additional material or evidence which could not
be produced when the evidence was being recorded.
[para 8] [42-D-HJ
Vadiraj Naggappa Vernekar v. Sharadchandra
Prabhakar Gogate - (2009) 4 SCC 410 - relied on.
D
1.3. In the absence of any provision in the Code
enabling the parties to re-open the evidence or to recall
any witness for further examination or cross-examination,
for purposes other than securing clarification required by
E the court, the inherent power u/s 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
F under Order 18 Rule 17 of the Code. The scope of s. 151
as explained by this Court in several decisions may be
summarised as follows:-
(a) Section 151 is not a substantive provision which
creates or confers any power or jurisdiction on
G 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
H prevent abuse of its process.
K.K. VELUSAMY v. N. PALANISAMY 35
(b) As the provisions of the Code are not exhaustive, A
s. 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- B
extensive with the need to exercise such power on
the facts and circumstances.
(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 C
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 be exercised in
relation to that matter, the inherent power cannot be D
invoked in order to cut across the powers conferred
by the Code or a manner inconsistent with such
provisions. Thus, a court cannot make use of the
special provisions of s.151, where the remedy or
procedure is provided in the Code. E
(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 s. 151 when the matter is not covered F
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.
G
(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 H
36 SUPREME COURT REPORTS [2011] 4 S.C.R.
A 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.
B (f) The power u/s 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 tides of the
applicant cannot be doubted, when such exercise is
c to meet the ends of justice and to prevent abuse of
process of court. [para 9, 10] [43-B-H; 44-A-H; 45-A-
D]
Padam Sen vs. State of UP AIR 1961 SC 218;
D 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
E 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) - relied on
F 1.4. 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
G ends of justice and to prevent abuse of process of court,
subject to the limitation recognized with reference to
exercise of power u/s 151 of the Code. [para 13] [46-G-H;
47-A]
.H 1.5. If for valid and sufficient reasons, the court
K.K. VELUSAMY v. N. PALANISAMY 37
exerc·ises its discretion to recall the witnesses or permit A
the fresh evidence, 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 B
schedule so that the delay is avoided. Thirdly, if the
application is allowed, but ultimately it is found to be
mischievous, or frivolous, or to cover up negligence or
lacunae, it should be rejected with exemplary costs, apart
from ordering prosecution if it involves fabrication of c
evidence. [para 16) [38-B-F]
1.6. In the instant case, the applications were made
before the conclusion of the arguments. Neither the trial
court nor the High court considered the question whether
it was a fit case for exercise of discretion u/s 151 or Order D
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 E
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. The appellant-
defendant has taken a consistent stand in his reply
notice, written statement and evidence that the agreement F
of sale was executed to secure a loan of Rs.1,50,000/- as
the respondent insisted upon execution and. registration·
of such agreement. If after the completion of recording
of evidence, PW1 and PW2 admitted during
conversations that the amount paid was not advance G
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 H
38 SUPREME COURT REPORTS [2011] 4 S.C.R.
A on the issues. According to the appellant, the said
evidence came into existence subsequently and,
therefore, he could not have produced this material
earlier and if the said evidence, if found valid and
admissible, would assist the court to consider the
B evidence in the correct perspective or to render justice,
it was a fit case for exercising the discretion u/s.151 of
the Code. The courts below have not applied their mind
to the question whether such evidence will be relevant
and whether the ends of justice require permission to let
C in such evidence. This Court is 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 u/s 151 of the Code.
0
The orders of the High Court and the trial court
dismissing IA No. 216/2009 u/s. 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.
[para 13-15 and 18-19] [46-E-H; 47-A-H; 49-B-D]
E
Case Law Reference:
AIR 1973 SC 157 relied on para 7
(2009) 4 sec 410 relied on para 8
F
AIR 1961 SC 218 relied on para 10
AIR 1962 SC 527 relied on para 8
AIR 1964 SC 993 relied on para 8
G AIR 1966 SC 1899 relied on para 8
(1970) 1 sec 732 relied on para 8
AIR 1976 SC 1152 relied on para 8
H AIR 1977 SC 1348 relied on para 8
.......
K.K. VELUSAMY v. N. PALANISAMY 39
(2005) 2 sec 256; relied on para 8 A
(201 O) s sec 1 relied on para 8
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2795-2796 of 2011.
B
From the Judgment & Order dated 7.4.2010 of the High
Court of Judicature at Madras in C.R.P. (PD) 3637 and 3638
of 2009.
S. Mahendran for the Appellant.
c
P. Vishwanatha Shetty, G. Indira, K.V. Jagdishwaran,
Mona K. Rajvanshi for the Respondent.
The Judgment of the Court was delivered by
R.V. RAVEENDRAN, J. 1. Leave granted. D
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, E
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 F
and issued a notice dated 16.3.2007 calling upon the appellant
to 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 G
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
H
40 SUPREME COURT REPORTS [2011) 4 S.C.R.
A 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
B 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
c 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
0 (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
E 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
F 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
G 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)
H
K.K. VELUSAMY v. N. PALANISAMY 41
[R.V. RAVEENDRAN, J.]
through the respondent; that both conversations were recorded A
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 9.50 p.m.; and that it was therefore
necessary to reopen the evidence and further cross-examine B
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. c
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 D
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 E
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 F
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" G
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,
H
42 SUPREME COURT REPORTS [2011] 4 S.C.R.
A in reference to such suit, or ;n 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
B 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 C()Urt further held that a
c contemporaneous electronic recorting 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.
D 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
E 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.
F 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
G 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
H either suo moto, or at the request of any party, so that the court
K.K. VELUSAMY v. N. PALANISAMY 43
I •.' [R.V. RAVEENDRAN, J.]
itself can put questions and elicit answers. Once a witness is A
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 B
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 c
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
0
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.
E
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 F
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 218; Manoharlal Chopra vs. Seth Hirata/ -
AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar - AIR
1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. G
Kanhay La/-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 H
44 SUPREME COURT REPORTS (2011] 4 S.C.R.
A 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
B
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.
c
(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
D 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.
(c) A Court has no power to do that which is prohibited by
law or the Code, by purported exercise of its inherent
E
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
F 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.
G
(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
H
....
....
K.K. VELUSAMY v. N. PALANISAMY 45
[R.V. RAVEENDRAN, J.]
provision in the Code and the exercise of those powers A
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 8
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 C
saving of the inherentpower 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 D
governing the matter, when the bona fides of the applicant
cannot be doubted, when such exercise is to meetthe ends
of justice and to prevent abuse of process of court.
11. The Code earlier had a specific provision in Order 18 E
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
F
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 G
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 H
46 SUPREME COURT REPORTS [2011) 4 S.C.R.
A 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 and then proceed to judgment.
Therefore, it was unnecessary to have an express provision for
8
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
C 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
D 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
E 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
F 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 because the arguments are heard, either fully or partly.
G 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
H abuse of process of court, subject to the limitation recognized
.......
K.K. VELUSAMY v. N. PALANISAMY 47
[R.V. RAVEENDRAN, J.]
with reference to exercise of power under section 151 of the A
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 B
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 C
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 o
Rs.150,000, as the respondent insisted upon 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 E
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 F
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 G
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.
H
48 SUPREME COURT REPORTS [2011) 4 S.C.R.
A 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
B 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
c 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,
0
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
E 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
F 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 recording
before granting or rejecting the application.
G 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
H measures could be avoided. The more the period of pendency,
K.K. VELUSAMY v. N. PALANISAMY 49
[R.V. RAVEENDRAN, J.]
the more the number of interlocutory applications which in turn A
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-
8
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 C
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. D
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.
·R.P .. APP$~~ partly allowed.
e
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