Allowed

P.B. Chandrababu v. B.B. Venu

Kerala HC26 Jul 2018OP(C)/96/2018

Case brief

AI extract

What is this about?

This petition challenges a lower court order allowing a voice test on a recording of a phone call between two defendants. The court held that since the plaintiff was not a party to the conversation, sending it for expert opinion was futile under Section 45 of the Evidence Act.

What did the court decide?

The original petition is allowed and the lower court order is set aside; the suit disposal scheduled for five months.

P.B. Chandrababu Vs B.B. Venu — Property and Title | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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THURSDAY, THE 26TH DAY OF JULY 2018 / 4TH SRAVANA, 1940

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OP(C).No. 96 of 2018

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AGAINST THE ORDER DATED 3.1.2018 IN I.A.NO.709/2017 IN OS NO.227/2011 OF THE COURT OF THE SUBORDINATE JUDGE, KOTTARAKKARA.

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PETITIONER

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P.B. CHANDRABABU, S/O. BHANU PANICKER,

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N.R COTTAGE, PERAYATHUMUKAL, PIRAPPINCODE, THIRUVANANTHAPURAM.

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BY ADVS.SRI.K.C.SANTHOSHKUMAR

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SMT.K.K.CHANDRALEKHA

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RESPONDENTS:

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P.B. VENU, S/O. BHANU PANICKER, PUSHPAMANGALAM, BHARANIKAVU WARD, PUNALUR VILLAGE, PUNALUR-691 305.

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P.B PADMA, W/O. C.P RENJITH, SREE THILAK, KESARI LANE, POOJAPPURA, THIRUVANANTHAPURAM 695 012.

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P.B PUSHPARAJAN, S/O. BHANUPANICKER, PUSHPAMANGALAM, BHARANIKAVU WARD, PUNALUR VILLAGE, PATHANAPURAM 691 305.

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VINOO TITTY GEORGE, S/O. TITTY GEORGE, 'THE RETREAT', KOWDIAR, THIRUVANANTHAPURAM 695 001.

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P.B SIVARAJAN, S/O. BHANUPANICKER, PUSHPAMANGALAM, BHARANIKAVU WARD, PUNALUR VILLAGE, PATHANAPURAM 691 305.

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P.B SURESH, S/O. BHANU PANICKER, TC/1221,LEKSHMI NIVAS, KUKLIA LANE, JAGATHY, THIRUVANANTHAPURAM 695 014.

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P.B CHANDRAKUMAR, AVANA BAKERY, OPP. MUNICIPAL OFFICE, PUNALUR 691 305.

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P.B JEEVAKUMAR, PUSHPAMANGALAM, BHARANIKAVU WARD, PUNALUR VILLAGE, PATHANAPURAM 691 305.

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O.P.(C) NO.96 OF 2018

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:: 2 ::

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R1 BY ADV. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.S.NITHIN (ANCHAL)

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R4 BY ADV. SRI.THOUFEEK AHAMED

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 96 of 2018 (O)

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APPENDIX

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PETITIONERS' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.227/2011 FILED BY THE 1ST RESPONDENT.

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EXHIBIT P2 TRUE COPY OF THE PARTITION DEED BEARING NO.3041/1998 OF S.R.O, PUNALUR.

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EXHIBIT P3 TRUE COPY OF THE PARTITION DEED BEARING NO.1286/2011 OF SRO, PUNALUR.

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EXHIBIT P4 TRUE COPY OF LAWYER NOTICE DATED 04-06-2012 SENT BY THE 2ND RESPONDENT'S COUNSEL.

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EXHIBIT P5 TRUE COPY OF THE WRITTEN STATEMENT DATED 15-06-2015 FILED BY THE PETITIONER.

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EXHIBIT P5(a) TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE THE PETITIONER, DATED 20-07-2015.

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EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE APPLICATION, I.A NO 709/2017 IN O.S.NO. 227/2011.

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EXHIBIT P7 TRUE COPY OF THE COUNTER STATEMENT DATED 11.12.2017 FILED BY THE PETITIONER IN I.A NO.771/2017.

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EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 20.03.2017 IN O.P(C) NO.1058/2017 ON THE FILE OF THE HIGH COURT OF KERALA EXHIBIT P9 TRUE COPY OF THE ORDER DATED 03-01-2018 IN I.A. NO.709/2017. EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 9.9.2015 IN O.P.(C) NO.1950/2015 ON THE FILE OF THE HIGH COURT OF KERALA.

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RESPONDENTS' EXHIBITS:

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EXT.R1(a) TRUE COPY OF THE TRANSCRIPT OF THE CONVERSATION.

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//TRUE COPY//

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AHZ/

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P. Somarajan, JJ.

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----------------------------------------------------

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O.P.(C) No.96 of 2018

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---------------------------------------------------Dated this the 26^th day of July, 2018

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JUDGMENT

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Aggrieved by the order passed by the trial court allowing the prayer for sending some telephonic conversation recorded for conducting voice test, the sixth defendant came up with this original petition.

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A mobile phone discussion in between defendants 5 and 6, according to the plaintiff, has some bearing in the case advanced by him in the suit. The suit was based on an alleged family settlement. The fifth defendant produced the document with its transcription in writing prepared by the concerned counsel. The fifth defendant has admitted his voice in the alleged telephonic conversation, but the sixth defendant disputed the same. According to the plaintiff, in the said circumstances, there are no other option but to send the telephonic conversation and the recording thereof for expert opinion

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O.P.(C) No.96 of 2018

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:: 2 ::

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to test whether it is belonged to the sixth defendant. The learned counsel also took support from Ext.P8 judgment in an earlier proceedings wherein this court has directed to send the recorded version for expert opinion in the case of denial of voice by any of the parties to it.

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The issue involved in the present case is standing on a different footing. Admittedly the suit was filed alleging some family settlement and for getting the property in accordance with the settlement arrived at by the plaintiff. The alleged telephonic conversation is in between defendants 5 and 6 wherein the plaintiff is not a party. The telephonic conversation reduced into writing by the fifth defendant and produced along with the electronic data before the trial court. It is true that when there is dispute regarding electronic recording of voice and when it is disputed by one of the parties to that, the only option available to the aggrieved person is to send the same for expert opinion. But in the present case, it is a discussion in between two defendants in the suit. The plaintiff cannot take benefit of the discussion made in between two defendants

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O.P.(C) No.96 of 2018

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:: 3 ::

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either in support of the case advanced by him or otherwise. Of course, if it is a discussion or promise or offer or reciprocal promise in between the plaintiff and one of the defendants, definitely the legal position would be a different one. In short, the purpose of sending the document for audio test under Section 45 of the Evidence Act is not established. The exercise in sending the document for expert opinion would be futile and cannot be sustained. The jurisdiction vested has not been exercised in its proper perspective.

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In the result, the original petition is allowed and the order of the lower court is set aside. It is made clear that the user of the said document by the fifth defendant or by the sixth defendant in a suit properly instituted by them or in a dispute in between them will not in any way stand as curtailed by this decision. The lower court shall dispose of the suit as expeditiously as possible and positively within a time schedule of five months.

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P. Somarajan Judge

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ahz/

P.B. Chandrababu v. B.B. Venu

Case brief

What is this about?

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P.B. Chandrababu v. B.B. Venu

Case brief

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