Madras High Court
K.K.Velusamy vs N.Palanisamy on 7 April, 2010
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07-04-2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN C.R.P.(PD) Nos.3637 and 3638 of 2009 and M.P.No.1 of 2009 K.K.Velusamy .. Petitioner in both the revisions Versus N.Palanisamy .. Respondent in both the revisions PRAYER in C.R.P.No.3637 of 2009: Petition filed under Article 227 of the Constitution of India, seeking to call for the records pertaining to the order, dated 9.9.2009, passed in I.A.No.216 of 2009, in O.S.No.4s8 of 2007, on the file of the Principal Sub Court, Gobichettipalayam, Erode District and set aside the same. PRAYER in C.R.P.No.3638 of 2009: Petition filed under Article 227 of the Constitution of India, seeking to call for the records pertaining to the order, dated 9.9.2009, passed in I.A.No.217 of 2009, in O.S.No.48 of 2007, on the file of the Principal Sub Court, Gobichettipalayam, Erode District and set aside the same. For Petitioner : Mr.I.C.Vasudevan For Respondent: Mr.N.Manokaran COMMON ORDER
Inasmuch as the issues arising for consideration in both the revisions are one and the same, a common order is being passed.
2. The civil revision petition, in C.R.P.No.3637 of 2009, has been filed against the order, dated 9.9.2009, made in I.A.No.216 of 2009, in O.S.No.48 of 2007, on the file of the Principal Subordinate Court, Gobichettipalayam, Erode District.
3. The civil revision petition, in C.R.P.No.3638 of 2009, has been filed against the order, dated 9.9.2009, made in I.A.No.217 of 2009, in O.S.No.48 of 2007, on the file of the Principal Subordinate Court, Gobichettipalayam, Erode District.
4. The petitioner, who is the defendant in the suit, in O.S.No.48 of 2007, had filed two interlocutory applications, in I.A.Nos.216 and 217 of 2009, in O.S.No.48 of 2007. The interlocutory application, in I.A.No.216 of 2009 had been filed by the petitioner to reopen the plaintiffs side evidence, for the purpose of further cross examination of P.W.1 and P.W.2. I.A.No.217 of 2009, had been filed to recall P.W.1 and P.W.2 for the purpose of further cross examination, on their admissions in the CDs, establishing the case of the petitioner. The trial Court, by its orders, dated 9.9.2009, had dismissed the interlocutory applications. Hence, the petitioner has filed the present civil revision petitions, challenging the said orders passed by the trial Court, on 9.9.2009.
5. The respondent had filed the suit, in O.S.No.48 of 2007, on the file of the Principal Subordinate Court, Gobichettipalayam, praying for the reliefs of specific performance and delivery of possession of the suit schedule property, based on the agreement for sale, dated 20.12.2006, entered into between the plaintiff and the defendant.
6. The trial Court had dismissed the interlocutory applications stating that the said applications had been filed by the petitioner at a belated stage when the evidence, on both sides, had been closed and after the arguments on behalf of the plaintiff were over. Further, the voice recorded in the CD cannot be taken as acceptable evidence, as per law. The trial Court had also accepted the statement of the respondent that the applications had been filed by the petitioner only with the mala fide intention of dragging on the proceedings in the suit, in O.S.No.48 of 2007. Accordingly, by its orders, dated 9.9.2009, the trial Court had dismissed the interlocutory applications filed by the petitioners, in I.A.Nos.216 and 217 of 2009.
7. The learned counsel appearing on behalf of the petitioner had submitted that the Court below had committed an error by dismissing the applications filed by the petitioner. The petitioner ought to have been given a reasonable opportunity to prove his case. The trial Court had failed to note that the applications had not been filed by the petitioner, with the mala fide motive of dragging on the proceedings in the suit. Since, the recorded evidence was obtained only after the plaintiff's side evidence was closed, the trial Court ought to have allowed the interlocutory applications filed by the petitioner.
8. The trial Court ought to have allowed the applications, based on the decision of this Court, reported in A.R.Periyasamy V. G.Karunakaran (2009(2) CTC 419), wherein it had been held that tape recorded evidence is an admissible evidence. In paragraph 13 of the said decision, it had been held as follows:
"On a careful consideration of respective contentions, this Court is the considered view that the tape itself is a primary and direct evidence as to what has been said and picked up by the recorder and can only be an corroborative evidence and in that view of the matter, the revision petitioner/defendant is directed by this Court to file necessary fresh interlocutory application before the Trial Court seeking comparison of the recorded voice found in the cassette with that of the evidence of P.W.3 to be recorded by the Trial Court, to be compared by an expert as per rules of relevancy found in the Indian Evidence Act and that the Trial Court is to ensure that accuracy of what has to be recorded, has to be proved by the maker of the record with due identification through direct or circumstantial evidence so as to rule out the possibility of tampering with the record and in this regard, the Trial Court shall provide opportunity to both parties including the filing of counter, if any and to dispose of the matter, on merits, uninfluenced with any of the observations made by this Court in this revision. Consequently, the observation of the trial Court in I.A.No.4 of 2007, to the effect that presently an individual can speak with the same voice that of another and in this regard many are talented and available, etc., are not correct in the eye of law, in the considered opinion of this Court."
9. The trial Court ought to have seen that the petitioner was not making a new case by filing the interlocutory applications. The trial Court ought to have seen that the petitioner had not filed the applications to fill up the lacunae in the case of the petitioner. The learned counsel had further submitted that, under Order XVIII Rule 17 of the Civil Procedure Code, 1908, the Court may, at any stage of the suit, recall any witness, who has been examined and may put such questions to him, as it thinks fit. Therefore, the orders of the trial Court, dated 9.9.2009, dismissing the interlocutory applications filed by the petitioner, is erroneous and unsustainable in the eye of law.
10. The learned counsel appearing on behalf of the respondent had submitted that the trial Court was right in dismissing the interlocutory applications filed by the petitioner. The interlocutory applications filed by the petitioner were belated in nature. They had been filed only with the mala fide motive of dragging on the proceedings in the suit, in O.S.No.48 of 2007. The said applications, had been filed by the petitioner only as an afterthought, in order to delay the proceedings of the suit, unnecessarily. As such, the civil revision petitions are liable to be dismissed. In support of his contentions, the learned counsel had relied on the decision, reported in Vadiraj Naggappa Vernekar V. Sharadchandra Prabhakar Gogate (2009(4) SCC 410), wherein it had been held as follows:
"25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.....
28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.
29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination.
30. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the trial Court to permit recall of such a witness for re-examination -in-chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case."
11. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents and and on a perusal of the records available, this court is of the considered view that the petitioner has not shown sufficient cause or reason to interfere in the orders passed by the trial Court, on 9.9.2009, in I.A.Nos.216 and 217 of 2009, in O.S.No.48 of 2007. The order of the trial Court, dated 9.9.2009, cannot be said to be erroneous or illegal, as it is seen that the petitioner had filed the interlocutory applications, belatedly, after the evidence, on both sides, had been closed and after the arguments on behalf of the plaintiff had been concluded. In such circumstances, the Civil Revision Petitions are liable to be dismissed, as devoid of merits. Hence, they are dismissed. No costs. Consequently, connected miscellaneous petition is closed.
csh To The Principal Sub Court, Gobichettipalayam, Erode District