Kerala High Court
Sudheer C.M vs Noby Augustine on 5 November, 2021
OP(C).2940/17 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
OP(C) NO. 2940 OF 2017
AGAINST THE ORDER/JUDGMENT IN OS 10/2016 OF PRINCIPAL SUB
COURT,NORTH PARAVUR, ERNAKULAM
PETITIONER/S:
SUDHEER C.M.
AGED 40 YEARS
AGED 40, S/O. MUHAMMED ALI,CHENAKARA HOUSE,
ASOKAPURAMDESOM, ALUVA WEST VILLAGE,ERNAKULAM
DISTRICT.
BY ADV SRI.SAJEEV KUMAR K.GOPAL
RESPONDENT/S:
1 NOBY AUGUSTINE
AGED 33, W/O FRANCIS XAVIER ANDREWS, THIRUTHANATHIL
HOUSE, MAJAPRA DESOM,MANJAPRA VILLAGE.
2 THE MANAGER
REPCO HOME FINANCE LTD,ERNAKULAM BRANCH,41/4057/A,
OLD RAILWAY STATION ROAD,KOCHI-682018
BY ADVS.
SRI.BENOY K.KADAVAN
SRI.K.P.SUJESH KUMAR
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 3.8.2021,
THE COURT ON 05.11.2021 DELIVERED THE FOLLOWING:
OP(C).2940/17 2
V.G.ARUN, J.
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O.P(C).No.2940 of 2017
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Dated this the 5th day of November, 2021
JUDGMENT
The petitioner is the plaintiff in O.S.No.10 of 2016 on the files
of the Sub Court, North Paravur. As per the plaint averments, the
plaintiff and 1st defendant are friends and had decided to raise
money by availing a loan from the 2nd respondent. For the said
purpose, petitioner executed a sale deed with respect to the plaint
schedule property in favour of the 1st defendant and the 1st
defendant availed a loan on the strength of that document. Contrary
to the understanding that the loan will be repaid in equal proportion,
1st defendant failed to remit his share, compelling the petitioner to
repay almost the entire loan amount. The petitioner was willing to
pay the balance amount also, provided the property is reconveyed to
him. The 1st defendant having refused to repay the loan and to
reconvey the property, the suit is filed for a decree of specific
performance.
In her written statement, the 1st respondent contended that the
sale deed had been executed in her favour for due consideration.
The 2nd defendant also filed written statement contending that some
portion of the loan have been repaid by the parties and the balance
is outstanding. When the suit reached the stage for payment of
balance court fee, petitioner filed various interlocutory applications,
some of which are produced as Exhibits P3 to P7. Among these
applications, I.A.No.193 of 2017 is for a direction to keep the
petitioner's mobile phone and compact disc in safe custody,
I.A.No.191 of 2017 is for a direction to compare the voice sample of
the 1st defendant with her voice recorded in the mobile phone and
compact disc and I.A.No.192 of 2017, for a direction to the 1 st
defendant to supply her voice sample for the purpose of comparison.
Later, the petitioner filed an amendment application as I.A.No.493 of
2017 seeking to incorporate an alternative relief of declaration that
the petitioner is the real owner in possession of the plaint schedule
property and the disputed sale deed was executed only as a security
for availing loan from the 2 nd defendant. By Exhibit P8 common
order, the trial court dismissed I.A.Nos. 191, 192 and 493 of 2017
along with I.A.No.180 of 2017, wherein the prayer is to restrain the
2nd defendant from initiating coercive steps against the property for
realisation of the loan amount. The original petition is filed
challenging Exhibit P8 order.
2. Heard Advocate Sri.Sajeev Kumar K.Gopal, learned counsel
for the petitioner, and M/s.Benoy K.Kadavan and K.P.Sujesh Kumar,
learned counsel appearing for respondents 1 and 2.
3. Elaborating on the reason for filing I.A.Nos.191 and 192 of
2017, learned counsel for the petitioner submitted that the 1 st
respondent had been summoned to the office of the Dy.SP, Aluva,
based on petitioner's complaint. In the discussion held in the
presence of the DySP, 1st respondent had divulged the true facts.
She admitted that the sale deed was executed in the manner stated
in the plaint and that she wanted only to be compensated for the
loss sustained by her. This conversation was recorded by the
petitioner in his mobile phone and copied to the compact disc.
Hence, comparison of the 1 st respondent's voice sample with her
voice in the recorded conversation is highly essential for just
disposal of the case. As regards the prayer for amendment of the
plaint it is submitted that the amendment is imperative and will not
alter the nature of the suit. It is contended that with the
advancement of technology, comparison of voice sample has
become an exact science and therefore rejection of the application
for comparison amounts to denial of best evidence. Reliance is
placed on the decisions of the Madras High Court in Mariya
Selvaraj v. Ganesan [2015 2 KLT SN 15] and Pustimargiya
Tritiya Peeth Pranyas Shri Dwarkadheesh Mandir, Kankroli
and Others v. Additional District Judge, Rajsamand and
Others [2009 KHC 7082] to contend that, conversation recorded by
a party to the suit can be sent for expert opinion and the opinion can
be accepted in evidence.
4. Learned counsel for the 1st respondent submitted that the
petitioner had earlier filed an application for injunction, seeking to
restrain the 1st respondent from destroying the cowshed in the plaint
schedule property and from putting up structures therein. That
application was dismissed by Exhibit R1(b) order. Being aggrieved,
the petitioner preferred FAO No.177 of 2016 and this Court, by
Exhibit P2 judgment dated 22.11.2016, directed the parties to
maintain status quo, subject to the petitioner clearing the entire
liability due to the 2nd respondent. The court below was directed to
dispose the suit within six months. The petitioner failed to make the
payment as directed and on the suit being listed for trail, filed the
interlocutory applications with sole intention of protracting the
proceedings. The trial court maintained the suit in the list and
passed Exhibit P8 order on 30.3.2017. The suit was taken up for
evidence on the same day and the petitioner being absent, the suit
was dismissed for default. Immediately, the petitioner filed
O.S.No.160 of 2017 before the Munsiff's Court, Aluva praying for a
permanent prohibitory injunction restraining the 1 st respondent from
alienating or encumbering the plaint schedule property and also
sought an interim injunction till disposal of the suit. The Munsiff's
Court having refused to grant the interim injunction, petitioner
withdrew the suit. As regards the alleged recording of conversation
in the petitioner's mobile phone, it is contended that the recording
was done without the knowledge and consent of the 1 st respondent
and no sanctity can be attached to it. Even otherwise, the
mandatory requirements under Section 65B of the Evidence Act
have not been complied with. Finally, it is contended that the
conduct of the petitioner should dissuade this Court from interfering
with the impugned order, in exercise of the power under Article 227
of the Constitution of India.
5. Even though a single original petition challenging a common
order passed on interlocutory applications seeking different reliefs is
not maintainable, I refrain from dismissing the petition on that
ground, since the matter has been pending before this Court from
2017 onwards.
6. On merits, I find that the trial court was fully justified in
having refused to allow the prayer for comparison of the 1 st
respondent's voice recorded in the petition's mobile phone. As
rightly found by the trial court, the alleged recording was during the
pendency of the suit and in the office of the DySP, that too, without
the knowledge and consent of the petitioner. It is trite law that no
sanctity can be accorded to even agreements executed at Police
Stations. Being so, no evidentiary value can be attached to the
recording of a conversation in the office of the DySP. The
circumstances under which voice sample was accepted in evidence
in Mariya Selvaraj (supra) and Pustimargiya Tritiya Peeth
Pranyas Shri Dwarkadheesh Mandir, Kankroli (supra) being
entirely different, the dictum in those decisions cannot be made
applicable to the case at hand. The conduct of the petitioner in not
having complied with the direction in Exhibit P2 judgment, his failure
to pay the balance court fee on time, attempt to protract the
proceedings by filing unmerited interlocutory applications, coupled
with his act of having filed a suit for injunction before the Munsiff's
Court after dismissal of the instant suit for default, also dissuades
this Court from exercising the supervisory jurisdiction under Article
227 of the Constitution of India. No valid grounds are urged
challenging the dismissal of I.A.Nos.493 of 2017 and 180 of 2017
and hence, those orders also warrant no interference.
In the result, the original petition is dismissed.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX OF OP(C) 2940/2017
PETITIONER EXHIBITS
EXHIBIT P1: A TRUE COPY OF THE PLAINT IN OS NO.10 OF
2016 ON THE FILE OF THE SUB COURT NORTH
PARAVUR DATED 4.2.2016
EXHIBIT P2: A TRUE COPY OF THE JUDGMENT DELIVERED IN
F.A.O.NO.177 OF 2016 DATED 22.11.2016 ON
THE FILE OF THIS HON'BLE COURT
EXHIBIT P3: A TRUE COPY OF I.A.NO.193 OF 2017 IN
EXHIBIT P1 SUIT DATED 28.1.2017
EXHIBIT P4: A TRUE COPY OF I.A.NO.191 OF 2017 IN
EXHIBIT P1 SUIT DATED 28.1.2017
EXHIBIT P5: A TRUE COPY OF THE UNNUMBERED APPLICATION
IN EXHIBIT P1 SUIT DATED 28.1.2017
EXHIBIT P6: A TURE COPY OF THE UNNUMBERED APPLICATION
INEXHIBIT P1 SUIT DATED 28.1.2017
EXHIBIT P7: A TRUE COPY OF THE UNNUMBERED APPLICATION
IN EXHIBIT P1 SUIT DATED 28.1.2017
EXHIBIT P8: A TRUE COPY OF THE COMMON ORDER PASSED IN
IANO.190,191,192 AND 493 OF 2017 IN OS
NO.10 OF 2016 ON THE FILE OF THE SUB
COURT, NORTH PARAVUR DATED 30.3.2017
