_**OP(C).2940/17**_
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE V.G.ARUN**
**FRIDAY, THE 5[TH] 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:
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## **V.G.ARUN, J. ----------------------------------------------O.P(C).No.2940 of 2017**
## **----------------------------------------------Dated this the 5[th] 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 1[st] defendant are friends and had decided to raise money by availing a loan from the 2[nd] respondent. For the said purpose, petitioner executed a sale deed with respect to the plaint schedule property in favour of the 1[st] defendant and the 1[st] defendant availed a loan on the strength of that document. Contrary to the understanding that the loan will be repaid in equal proportion, 1[st] 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 1[st] 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 1[st] respondent contended that the sale deed had been executed in her favour for due consideration.
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The 2[nd] 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 1[st] 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 2[nd] defendant from initiating coercive steps against the property for realisation of the loan amount. The original petition is filed challenging Exhibit P8 order.
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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, 1[st] 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**_
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_**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 1[st] respondent submitted that the petitioner had earlier filed an application for injunction, seeking to restrain the 1[st] 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 2[nd] 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
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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.
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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
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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_
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## **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
