LexK.K. VELUSAMY versus N. PALANISAMY
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[2011] 4 S.C.R. 31 K.K. VELUSAMY v. N. PALANISAMY (Civil Appeal Nos. 2795-2796 of 2011) MARCH 30, 2011 [R.V. RAVEENDRAN AND A. K. PATNAIK, JJ.] CODE OF CIVIL PROCEDURE, 1908: A B 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 refe
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