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2015 DIGILAW 427 (RAJ)

Shakuntala v. Kanwari Lal

2015-02-16

ARUN BHANSALI

body2015
JUDGMENT 1. - This writ petition under Article 226 and 227 of the Constitution of India is directed against orders dated 13.09.2013, 19.09.2013 and 28.10.2013 passed by the trial court, whereby, on 13.09.2013 the trial court ordered that it did not appear just to grant additional time for compliance of its order dated 14.09.2011 and directed listing of the suit for further proceedings, on 19.09.2013 the application filed by the petitioner seeking fixing of the date and time with the consent of the Commissioners for taking voice sample so that plaintiff can be bound to remain present on the said date to complete the proceedings was rejected and on 28.10.2013 the application filed by the petitioner under Order 47, Rule 1 and 2 CPC seeking review of the order dated 19.09.2013 was rejected. 2. 2. In a suit for eviction filed in the year 2000 the petitioner, inter alia, sought to rely on the tape recorded telephonic conversation between the plaintiff and husband of the petitioner; the application dated 13.12.2005 filed by the petitioner under Section 45 of the Evidence Act, 1872 ('the Act') seeking examination of the tape recorded conversation by the Forensic Science Laboratory, Jaipur ('FSL') was rejected by the trial court on 19.07.2007; against the order dated 19.07.2007 S.B. Civil Writ Petition No.7005/2007 was preferred by the petitioner, which was allowed by this Court on 04.04.2008 setting aside the order impugned and restoring back the application for reconsideration by the trial court; by order dated 14.09.2011 the trial court directed for testing the undisputed voice recording and the voice recording in question through FSL and the learned counsel for the plaintiff was directed to produce the plaintiff before the Court on the next date for giving sample of his voice; whereafter, on 01.09.2012 the Court appointed two Lawyers as Commissioners for getting the voice of the plaintiff recorded and produce the same before the trial court; whereafter, the matter kept on getting adjourned and ultimately on 13.09.2013 the Court noticed that for the purpose of compliance of order dated 14.09.2011 matter was getting adjourned but the order has not been complied with, it appears that the parties were not interested in compliance of the order and were wasting the precious time of the Court and were causing delay in deciding the suit and, consequently, directed the suit to be listed for further proceedings; on 19.09.2013, the petitioner filed application seeking fixing of the date for doing the needful in terms of order dated 14.09.2011; on the same date, the trial court came to the conclusion that there was no justification for the application as the implementation of the order dated 14.09.2011 has already been cancelled by the Court on 13.09.2013 and, consequently, dismissed the application. 3. 3. The petitioner filed review application qua the order dated 19.09.2013; a reply to the application was filed by the plaintiff and after hearing the parties the trial court came to the conclusion that too much opportunities were granted to the petitioner to do the needful; earlier from 14.09.2011 to 01.09.2012 and from 01.09.2012 to 13.09.2013 for doing the needful, however, nothing was done by the petitioner; there was no restriction in getting the same done irrespective of the fact that there was suspension of work or the Presiding Officer was not available and no case for review was made out and, consequently, dismissed the application. 4. It is submitted by learned counsel for the petitioner that the petitioner was very much ready and willing to comply with the directions dated 14.09.2011 passed by the trial court, whereby, permission was granted to get the voice sample of the plaintiff and get it compared by FSL with the disputed recording, however, for the reasons beyond petitioner's control, like suspension of work by the lawyers, non-availability of the Presiding Officer from time to time, the same could not be done and whereafter when on 01.09.2012 the trial court directed the Commissioners to do the needful, whereafter also, for similar reasons the collection of voice sample could not take place; it is submitted that the trial court wrongly closed the opportunity to have the voice sample recorded and get it compared with the disputed voice by FSL, which order had been passed by the trial court itself; further, the application filed by the petitioner on 19.09.2013 and, review thereof, were both wrongly rejected by the trial court and, therefore, the orders impugned deserve to be set aside and the petitioner may be granted one opportunity to do the needful in terms of order dated 14.09.2011. 5. 5. Learned counsel for the respondent vehemently opposed the submissions; it was submitted that on all the occasions the plaintiff was present for doing the needful, however, the petitioner did not take any interest whatsoever for getting the voice sample recorded and the plaintiff was unnecessarily harassed by the petitioner and, therefore, no indulgence is required to be given; for a simple application and for the purpose of recording the voice, the petitioner has spent almost more than three years, the suit is pending since the year 2000 and the petitioner is merely seeking to delay the inevitable; it was prayed that the writ petition be dismissed. 6. I have considered the rival submissions made by learned counsel for the parties. 7. The entire sequence of events as quoted hereinbefore indicates as to how the trials before the civil courts are protracted for absolutely non-existent reasons; the application was filed under Section 45 of the Act on 13.12.2005 and after order was passed by the trial court rejecting the same, which came to be reversed by this Court on 04.04.2008, whereafter the order in pursuance to the directions issued by this Court on 04.04.2008 were passed on 14.09.2011, whereafter, several dates were fixed for proceeding with the collection of voice sample; on failure to do the needful, on 01.09.2012 Commissioners were appointed and whereafter also nothing happened and ultimately the trial court was left with no alternative but to reach to a conclusion that the parties were not interested in complying with the directions dated 14.09.2011 and closed further proceedings. 8. 8. It would be seen that only lame excuses have been given by the petitioner for not doing the needful in terms of order dated 14.09.2011 like there has been suspension of work by the Lawyers and non-availability of the Presiding Officer; the action which was required to be taken pursuant to the order dated 14.09.2011 could very well be undertaken by the petitioner and the plaintiff even in the absence of the Presiding Officer and admittedly the plaintiff was available for doing the needful, however, the petitioner chose not to do what was required of the petitioner under order dated 14.09.2011; even after appointment of Commissioners on 01.09.2012, the petitioner chose not to do the needful; even the fact the work was allegedly suspended by the Lawyers and the Presiding Officer was not present was wholly inconsequential, but the entire conduct of the petitioner apparently has been to ensure that under the garb of the directions issued by this Court on 04.04.2008 and consequential order passed by the trial court on 14.09.2011, the trial can be protracted as much as possible and, therefore, deliberately did not take the requisite action; the trial court was perfectly justified in first closing the opportunity to comply with the direction dated 14.09.2011, rejecting the application dated 19.09.2013 and dismissing the review application filed by the petitioner, no interference is, therefore, called in exercise of extra ordinary jurisdiction of this Court under Article 226 and 227 of the Constitution of India. 9. Consequently, there is no substance in the writ petition and the same is, therefore, dismissed. The stay petition is also dismissed. No order as to costs.Petition dismissed. *******