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2008 DIGILAW 966 (RAJ)

Shakuntala v. Civil Judge (JD), Nagaur

2008-04-04

DINESH MAHESHWARI

body2008
JUDGMENT 1. :- By way of this writ petition, the defendant-petitioner has questioned the legality and propriety of the order dated 19.07.2007 (Annex. 9) as passed by the learned Civil Judge (Junior Division), Nagaur in Civil Suit No.75/2000 rejecting an application moved by her under Section 45 of the Evidence Act for voice comparison and for an expert's opinion in relation to the disputed tape-recording, of an alleged telephonic conversation between the plaintiff and the husband of the defendant-petitioner.2. Briefly put, the background facts and relevant aspects of the matter are that the plaintiff-respondent No.2 has filed a suit for eviction and recovery of arrears of rent against the petitioner-defendant on 06.11.2000 stating, inter alia, the defendant to be his tenant in the premises situated at Naguar and an amount of Rs.10,800/- to be due towards the rent for 31 months, from 01.04.1998 to 31.10.2000. In her written statement, the defendant-petitioner has admitted the facts relating to tenancy but has denied the allegations about arrears of rent and has alleged, inter alia, that the plaintiff was residing at Chennai and was collecting the rent whenever visiting Nagaur. According to the defendant, towards rent, an amount of Rs.8,400/- was paid on the plaintiff visiting Nagaur and further an amount of Rs. 2,940/- was to be adjusted as spent on repairs; and upon asking for the receipt, the plaintiff assured to send the same for the receipt book being not traceable. The defendant has alleged in the written statement that the plaintiff did not issue receipt for the aforesaid amount of Rs. 11,340/- and has filed the suit with oblique intentions; that thereupon, the husband of the defendant had had a telephonic conversation with the plaintiff who admitted having received the amount of Rs.8,400/- and agreed to contact his lawyer and to send the receipt but having not done so. The defendant has alleged having recorded such conversation on telephone; and has produced the cassette of such recording with her defence. It is noticed from the statements of the plaintiff as recorded during the trial of the suit (Annex.4) that he has been cross-examined in relation to such tape recording also and he has denied if the recording contains his voice.3. The proceedings in the suit were set for defendant's evidence and it appears that after several adjournments, the defendant-petitioner moved an application under Section 45 of the Evidence Act (Annex. The proceedings in the suit were set for defendant's evidence and it appears that after several adjournments, the defendant-petitioner moved an application under Section 45 of the Evidence Act (Annex. 6) on 13.12.2005. The petitioner referred to the facts relating to the tape-recording and to the statements of the plaintiff and submitted that she was desirous of getting the voice in the tape-recording examined by a Forensic Laboratory expert; and that such an expert opinion was necessary for just decision of the case. The defendant petitioner submitted that Forensic Laboratory expert from Chandigarh may be called for the purpose and the voice of the plaintiff be got recorded for comparison and the expert's evidence may be taken on record. The application was opposed on behalf of the plaintiff while denying the facts as asserted by the petitioner regarding the conversation in dispute and the plaintiff submitted, inter alia, that the matter was pending for defendant's evidence since 03.06.2004 and the defendant has neither herself appeared in evidence nor produced any other witness and the application was intended only to delay the proceedings.4. By the impugned order dated 19.07.2007 (Annex. 9), the learned Trial Court has referred to the contents of the application and the reply and has thereafter proceeded to reject the aforesaid application essentially on the ground of delay. By the impugned order dated 19.07.2007 (Annex. 9), the learned Trial Court has referred to the contents of the application and the reply and has thereafter proceeded to reject the aforesaid application essentially on the ground of delay. The relevant part of the impugned order dated 19.07.2007 reads as under:- " cgl mHk; i{kdkjku gLrxr izkFkZuk i= /kkjk 45 lk{; vf/kfu;e lifBr 151 lh0ih0lh0 ij lquh x;h i=koyh dk /;kuiwoZd voyksdu fd;k x;kA gLrxr izdj.k esa oknh daojhyky ds c;ku fnukad 20-3-2004 dks iw.kZ fd, x, ml le; oknh dks izfroknh us mDr dSlsV Vsi esa Mkydj mls lqukdj vihy ftjg iwjh dh rFkk dSlsV ij vkfVZdy Hkh yxok, x, rFkk mls U;k;ky; esa tek djk;k x;kA bl izdkj odhy izfroknh us Lo;a dks feys ftjg ds volj dk iw.kZ :is.k iz;ksx djrs gq, fookfnr dSlsV dks U;k;ky; esa ctkdj mls oknh dks lquk;k gS rFkk viuh ftjg iwjh dh gS rFkk mlds lk{; izfroknh ds fy, vusd volj ysus ds i'pkr~ tc mls vafre volj fn;k x;k rks ;g izkFkZuk i= is'k fd;k x;kA ;fn odhy izfroknh okLro esa vko';d le>rs rks viuh lk{; 'kq: gksus ls iwoZ gh izkFkZuk i= is'k dj ldrs Fks ijUrq ,slk ugha djds tc lk{; gsrq vafre volj izfroknh dks fn;k x;k rc ;s izkFkZuk i= is'k fd;k x;k gS] blls ;g Li"V izrhr gksrk gS fd ;g izkFkZuk i= ek= lk{; izfroknh ls cpus ds fy, ,ao izdj.k dks vuko';d :i ls foyfEcr djus ds fy, is'k fd;k x;k gS tks drbZ Lohdkj fd;s tkus ;ksX; ugha gSaA " 5. The order aforesaid is questioned in this writ petition and while referring to the order sheets relating to the progress of the civil suit, learned counsel for the petitioner strenuously contended that the entire of delay could not have been attributed to the petitioner alone and the application could not have been rejected merely on the ground of delay, particularly when the prayer as made by the petitioner goes to the root of the matter and it is in the interest of justice in the circumstances of the case to have the expert's opinion on the voice available in the recording as produced before the Court. Learned counsel for the respondent-plaintiff has supported the order impugned and submitted that the application was filed at a much belated stage and the order as passed by the learned Trial Court cannot be said to be suffering from any jurisdictional error.6. Having given a thoughtful consideration to the entire matter, this Court is unable to uphold the order impugned as passed by the learned Trial Court rejecting the application under Section 45 of the Evidence Act only on the ground of so-called delay in filing the application.7. While it cannot be denied that the proceedings in the civil suit are required to be taken up with reasonable dispatch and any attempt on the part of a party to the litigation to delay the disposal of the matter or to protract the trial is viewed with disfavour but then, delay alone cannot be the relevant consideration always and cannot be the sole basis of dealing with a prayer made by a party to litigation during the course of hearing. It remains fundamental to the rules of procedure that they are intended to subserve the cause of justice and the parties to the litigation are to be afforded fullest opportunity of placing their case before the Court. It remains obligatory for the Court concerned to employ and apply the rules of procedure in the manner that they advance the cause of justice and not in the manner as if to shut-down a party merely on technicalities.8. In the present case, it is noticed that after closure of the evidence of the plaintiff on 04.05.2004, of course, some adjournments were granted to the defendant-petitioner but on several occasions like those on 03.06.2004, 10.09.2004, 11.01.2005, 29.03.2005 and 03.06.2005, the matter was adjourned because the Presiding Officer of the Court concerned was not available for one reason or another. It is also noteworthy that the application under Section 45 of the Evidence Act was moved on 13.12.2005 and after several adjournments, the application was heard only on 18.07.2007 and was decided by the impugned order on 19.07.2007.9. It is also noteworthy that the application under Section 45 of the Evidence Act was moved on 13.12.2005 and after several adjournments, the application was heard only on 18.07.2007 and was decided by the impugned order on 19.07.2007.9. While passing the impugned order on 19.07.2007, the learned Trial Court has chosen to reject the application only on the consideration that same came to be filed after granting last opportunity to the defendant to adduce evidence; and, according to the learned Trial Court, if the counsel for the defendant considered it requisite, could have moved such an application before commencement of their evidence. Obviously, the aspect of delay alone has been taken decisive of the matter and the application has been treated as the one intended merely to delay the proceedings. While concentrating so heavily, rather merely, on the aspect of delay, the learned Trial Court has totally omitted to consider the fundamental of the matter that the facts relating to such tape-recorded conversation were not of an after-thought or of a new creation by the defendant but the written statement itself contains such a plea in sufficient detail and in specific terms. The cassette containing such recording has been produced before the Court; and the plaintiff has been cross-examined in that regard who has denied if the disputed tape contained his voice. In the overall scenario as available on record, even if there was some delay on the part of the petitioner in moving the application for expert's opinion on such tape-recording and any further delay was likely to be caused thereby, passing of appropriate orders curbing against unnecessary delay could have been considered but rejection of the application as moved by the petitioner only on the ground of delay is difficult to be countenanced in this case.10. In the circumstances of the case, this Court is of opinion that the impugned order deserves to be set aside and the application deserves to be restored for re-consideration by the learned Trial Court.11. In view of the aforesaid, this writ petition succeeds to the extent indicated above, the impugned order dated 19.07.2007 (Annex.9) is set aside and the application as moved by the petitioner on 13.12.2005 under Section 45 of the Evidence Act stands restored for re-consideration by the learned Trial Court. There shall be no order as to costs of this writ petition.Writ petition allowed. *******