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Madhya Pradesh High Court · body

2023 DIGILAW 494 (MP)

Suchitra Khandelwal v. Firoz Ali

2023-04-17

SUBODH ABHYANKAR

body2023
ORDER 1. This petition has been filed under Article 227 of the Constitution of India against the order dated 25.11.2022 (Annexure P/1), passed by the Principal District Judge, Ratlam in RCSA No. 09- A/2025, whereby the application filed by petitioner/defendant under sections 45 and 73 of the Indian Evidence Act, 1872 ( hereinafter referred as ‘the Act’) for sampling of the voice of plaintiff and to get it examined with the call recordings available on record has been rejected. 2. In brief, the facts of the case are that the plaintiff has filed a civil suit for specific performance of contract in which, the plaintiff’s evidence has already been closed, and in the aforesaid proceedings, an application was filed on 25.11.2022, by the defendant during the course of the evidence under sections 45 & 73 of the Act on the ground that after the suit was filed, there was some telephonic conversation between the plaintiff and the father of the plaintiff with the defendant, in which, it can be culled out that the plaintiff has admitted that he was not willing to perform his part of the contract and, therefore, the issue of boundary wall was raised. The aforesaid application has been rejected by the learned Judge of the trial Court vide order dated 25.11.2022 holding that the conversation between the parties in the aforesaid cassettes/CDR are not relevant. 3. Shri Vinay Saraf, learned senior counsel for petitioner has submitted the aforesaid finding recorded by the learned Judge of the trial Court runs contrary to the earlier order passed by the trial Court itself on 5.8.2019, wherein, the application filed by the defendant to bring the aforesaid telephonic conversation etc. on record has been allowed by holding that the said documents are relevant. Thus, it is submitted that it was not open to the learned Judge of the trial Court to take a different stand then the one which was already taken back by his predecessor on 5.8.2019. 4. Learned senior counsel has also submitted that the telephonic conversation and samplings are necessary for the proper defense of the defendant. Thus, the same ought to have been allowed by the learned Judge of the trial Court. 5. 4. Learned senior counsel has also submitted that the telephonic conversation and samplings are necessary for the proper defense of the defendant. Thus, the same ought to have been allowed by the learned Judge of the trial Court. 5. Shri V.K.Jain,learned senior counsel for the respondent has vehemently opposed the prayer and it is submitted that no case for interference is made out for the reason that the aforesaid conversation had admittedly taken place between the parties subsequent to filing of the suit and thus, the same is not at all relevant as the requirement of the law is that the willingness and readiness of the plaintiff is required to be seen prior to filing of the suit. 6. Shri Jain has further submitted that the civil suit was filed in the year 2005, the written statement was filed in the year 2005 itself, and the transcript and the telephonic conversation were filed before the trial Court in the year 2017, and it was allowed in the year 2019, and the present application has been filed only on 25.11.2022, i.e., after completion of the plaintiff’s evidence which has been rightly rejected by the trial Court. Such procedure cannot be allowed to further protect the petitioner. 7. In rebuttal, learned counsel for the petitioner has submitted that in the aforesaid conversation, the willingness and readiness of the plaintiff can be verified which referred to prior to filing of the suit. Counsel for the petitioner has also submitted that earlier there was no occasion for the defendants to file the aforesaid application, as there was no denial and it is only after the plaintiff’s witnesses have denied in their cross examination about the factum of such conversation, that immediately the said application has been filed. 8. Heard the counsel for the parties and also perused the record. 9. 8. Heard the counsel for the parties and also perused the record. 9. On perusal of the record, it is found that the telephonic conversation between the parties and the proof of the same was already taken on record by the trial Court vide order dated 5.8.2019, the relevant paras of the same read as under :-- ßizfroknhx.kksa ds vkosnu i= varZxr vkns'k 8 fu;e 1 lgifBr ?kkjk 151 lh-ih-lh- vkbZ-,-ua 3 izLrqfr fnukda 13-11-17 ,oa vkosnu i= varxZr vkns'k 8 fu;e 1 lh-ih-lh izLrqfr fnukad 11-12-17 dk fujkdj.k & izfroknhx.kksa ds izFke mDr vkosnu i= dk lkj gS fd mudh ,oa ?ku';ke 'kekZ dh ckrphr nksuksa oknhx.k oknh dz-2 ds firk 'kjn esgrk nyky vt; dysjk] Bsdsnkj xksiky flag] QsaflaxdrkZ fo".kqjke ikVhnkj ls Qksu ij fookfnr laifÙk;ksa ds laca/k esa ppkZ gqbZ] ftldh mUgksaus dkWy fjdkWfMZax rhu vkWfM;ks dslsV esa dh ftldk mYys[k tokc nkos ds fo'ks"k vkifÙk pj.k 1 esa fd;k x;k gSA izfroknhx.k mDr vkfM;ks dslsV dks dgha j[kdj Hkwy x;s ftlls iwoZ esa is'k ugha dj ldsA nhokyh ij lQkbZ djus ij ;g rhuksa dslsV feys gSa] ftudh lh-Mh- cukdj vkSj mudk VªkalfØI'ku cukdj izLrqr fd;k gS] ftlls mUgsa vfHkys[k ij fy;k tkosA vkosnu ds leFkZu esa MkW- jru [k.Msyoky us viuk 'kiFk i=] izek.k i= ,oa lwph vuqlkj nLrkost is'k fd;k gSaA mÙkjkosnu i= esa oknhx.kksa us vfHkfyf[kr fd;k gS fd izfroknhx.kksa us izfrc} i= esa dksbZ IyhfMax bl laca/k esa ugha dh gS fd VsyhQksu ij dh xbZ fjdkWfMZax lk{; esa xzkg~; ugha gSA cfYd og fof/k foijhr gksdj vkijkf/kd ÑR; gS] ftlls izfroknhx.kksa ds fo:} ?kkjk 340 na-iz-la- ds v/khu izdj.k iathc) fd;k tk;sA izfroknhx.kksa us euekus nLrkost cuk;s gSaA o"kZ 2005 dh VsyhQksu ppkZ dks brus foyac ls izLrqr fd;k tk jgk gS] ftlls vkosnu i= U;k;n`"Vkar rqdkjke fo- ekfudjko ,-vkbZ-vkj- 2010 ,l-lh- 965 ds vkyksd esa fujLr fd;k tkosA vkosnu i= mHk;i{k ds rdZ lqus x;sA izdj.k ns[kk x;kA izdj.k ds vuq'khyu ls izfroknhx.kksa us izfrokn i= esa mDr Vsi dk mYys[k fd;k gSA izfroknhx.kksa us Vsi foyac ls izLrqr djus dk dkj.k mldk =qfVo'k dgha j[kk tkuk crk;k gS] tks mfpr ik;k tkrk gSA izfroknhx.kksa us mDr Vsi vkSj mudh lh-Mh- rFkk VªkalfØI'ku izLrqr dh gS] tks izdj.k ds fujkdj.k esa izfroknhx.kksa }kjk izLrqr fd;s x;s mDr nLrkost izFke n`"Vr;k lgk;d izrhr gksrs gSaA oknhx.kksa }kjk tks U;k;n`"Vkar izLrqr fd;k x;k gS] mldh ifjfLFkfr;ka bl izdj.k ls fHkUu gksus ls mlls oknhx.kksa dks dksbZ cy bl izdj.k esa ugha feyrk gSaA vr% mDr dkj.kksa dks ns[krs gq, izfroknhx.kksa dk vkosnu i= mudh vksj ls izLrqr U;k;n`"Vkar foØe flag mQZ foDdh okfy;k ,oa vU; fo- LVsV vkWQ iatkc ,oa vU; ,-vkbZ-vkj- 2017 ,l-lh- 3227 ds vkyksd esa Lohdkj dj izfroknhx.kksa }kjk izLrqr fd;k x;s lwph vuqlkj nLrkost vfHkys[k ij fy;s tkrs gSaA izfroknhx.kksa ds vkosnu i= vkns'k 8 fu;e 1 lh ih-lh- izLrqfr fnukad 11-12-17 dk fujkdj.k & izfroknhx.kksa ds mDr vkosnu i= dk lkj gS fd muds }kjk fnukad 13-11-17 dks ,d vkosnu i= vkns'k 8 fu;e 1 lh-ih-lh- dk lwph vuqlkj nLrkost lfgr izLrqr fd;k Fkk] ysfdu rhu lh-Mh- vkSj lh-Mh- cukus okys dk fcy =qfVo'k izLrqr djuk jg x;k Fkk] ftls lwph vuqlkj izLrqr fd;k tk jgk gS] ftUgsa vfHkys[k ij fy;k tkosaA mÙkjkosnu i= is'k ughaA vkosnu i= ij mHk;i{k ds rdZ lqus x;sA izdj.k ns[kk x;kA izdj.k ds fujkdj.k esa mDr nLrkost izFke n`"Vr;k lgk;d izrhr gksus ls vkosnu i= Lohdkj dj mUgsa vfHkys[k ij fy;k tkrk gSA izdj.k okLrs oknh ,oa mlds lkf{k;ksa ij izfrijh{k.k gsrq fu;r fd;k tkrk gSA izdj.k yxHkx 14 o"kZ iqjkuk gksdj ek- mPp U;k;ky; ,oa loksZPp U;k;ky; ds funsZ'kkuqlkj izdj.k dk 'kh?kzkfr'kh?kz fujkdj.k gksuk gSA vr% oknh ,oa mlds lk{kh vfxze frfFk ij vko';d :i ls mifLFkr jgsaxs rFkk izfroknhx.k oknh vkSj mlds lkf{k;ksa ij izfrijh{k.k vko';d :i ls djsaxsA nksuksa i{kksa dks dksbZ le; ugha fn;k tk,xkA izdj.k okLrs oknh ,oa mlds lkf{k;ksa ij izfrijh{k.k gsrq fnukad 24-8-2019 dks is'k gksAß (Emphasis supplied) 10. On perusal of the aforesaid order, it clearly reveals that on the said date when the applications of the defendants were allowed, learned Judge of the trial Court was of the opinion that the documents are relevant. Whereas in the impugned order dated 25.11.2022, the following findings have been recorded by the learned Judge of the trial Court :-- izdj.k ds voyksdu ls ;g izdV gksrk gS fd oknhx.k )kjk ;g okn yxHkx 18 o"kZ iwoZ foØ; vuqca/k dh fof'k"V iwfrZ ,oa dCts gsrq is'k fd;k x;k FkkA oknhx.k }kjk is'k fd;k x;k ;g okn iw.kZr% izdj.k esa is'k vuqcaèk i= izih&70 ij vk/kkfjr gSA 18 o"kZ dh yEch vof/k esa izfroknhx.k }kjk okW;l lsEiy ysdj mldh tkap fo'ks"kK ls djok;s tkus dk dksbZ fuosnu ugh fd;k x;k gSA ftl ckrphr ds ckjs esa dSlsV crkbZ tk jgh gS] og vuqca/k izih&70 ds laca/k esa u gksdj oknxzLr lEifRr ij cuh gqbZ v/kwjh ckmaMªhoky ds laca/k esa gSA ,slh ifjfLFkfr esa oknh fQjkst dh vkokt dk okW;l lSEiy ysdj mldh tkap fo'ks"kK ls djk;s tkus dk dksbZ vkSfpR; izrhr ugh gksrk gSA vr% izfroknhx.k dh vksj ls is'k vkosnu varxZr/kkjk 45 ,oa 73 lk{; fo/kku izdj.k esa dsoy foyEc djus ds vk'k; ls is'k fd;k x;k izrhr gksus ds dkj.k fujLr fd;k tkrk gSAß (Emphasis supplied) 11. The petitioners have also placed on record the transcript of the telephonic conversation between the parties running into around 100 pages whereas, the learned Judge of the trial Court has given the finding regarding the said conversation being irrelevant simply observing that it is not in respect of land in dispute in the suit,the specific performance of which is being sought by the plaintiff, and in fact it refers to the boundary wall constructed on the disputed property, which has nothing to do with the dispute between the parties. 12. On close scrutiny of the documents filed on record, in the considered opinion of this Court, the aforesaid finding recorded by the learned Judge of the trial Court is palpably wrong, for the reasons that evidentiary value of the aforesaid conversation took place between the parties cannot be weighed in at this stage of recording of the evidence. 12. On close scrutiny of the documents filed on record, in the considered opinion of this Court, the aforesaid finding recorded by the learned Judge of the trial Court is palpably wrong, for the reasons that evidentiary value of the aforesaid conversation took place between the parties cannot be weighed in at this stage of recording of the evidence. This Court finds force in the submissions advanced by Shri Vinay Saraf, learned senior counsel for the petitioners that earlier there was no occasion for the defendant to call for such voice samples for the reason that until now the existence of this conversation was never denied by the plaintiffs and thus, there was no occasion for the defendants to apply for taking voice samples of the plaintiffs to substantiate the telephonic conversation as aforesaid. 13. So far as the objection raised by the counsel for the respondent that the conversation which took place subsequent to the filing of the suit is not relevant, is concerned, this Court is also of the considered opinion that this objection can also be decided by the learned Judge of the trial Court while appreciating the evidence in the final judgement. 14. In view of the same, the impugned order cannot be sustained in the eyes of law and is liable to be said aside. 15. Resultantly, the impugned order dated 25.11.2022 is hereby set aside, and the petition stands allowed. Consequently, the application filed by the petitioners under sections 45 and 73 of the Evidence Act is also allowed and the learned Judge of the trial Court is requested to proceed further in accordance with law to record such evidence. 16. Needless to say that, this Court has not reflected upon the merits of the case and the learned Judge of the trial Court shall be only guided by the evidence adduced by the parties on record. Considering the fact that the matter is pending since 2005, the learned Judge of the trial Court is requested to expedite the matter. 17. Miscellaneous Petition stands allowed.