SUCHITRA KHANDELWAL Vs. FIROZALI

JUDGEMENT

(1.) This petition has been filed under Article 227 of the Constitution of India against the order dtd. 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 Ss. 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 Ss. 45 and 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 dtd. 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.