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)