Punjab-Haryana High Court
Ankit Verma vs Ravi Sondhi And Another on 6 November, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:145337
CR-5998-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
134
CR-5998-2024
Date of decision : 06.11.2024
Ankit Verma ...... Petitioner
versus
Ravi Sondhi and another ...... Respondents
CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. D.D. Singla, Advocate and
Mr. Ravinder Singh, Advocate
for the petitioner.
Mr. Avneesh Mittal, Advocate
for the respondents.
*****
PANKAJ JAIN, J. (Oral)
1. Legality of the order dated 18.09.2024 passed by Additional
Civil Judge (Sr. Divn.), SAS Nagar (Mohali) is under challenge.
2. Plaintiff-petitioner filed suit for specific performance
propounding agreement to sell dated 22.02.2021. The suit was resisted
by the defendant claiming that the agreement to sell indeed was a
security transaction as the defendant had only availed loan from the
plaintiff and as a security thereof, agreement to sell was executed. In
order to substantiate the same, defendant alongwith the written
statement, filed transcription of the conversation between the parties
recorded on 12.06.2021. The suit was instituted on 15.06.2021. During
the course of evidence, the plaintiff was confronted with the recording
which he declined. One of the attesting witnesses to the agreement to
sell namely Sunil Rajput @ Sunil Kumar expired 04 days after the
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agreement. An application was moved by defendant No.1 claiming
following reliefs:-
"a) To allow the application of the Defendant no 1 and permit
to appoint the expert for verifying the signature of attesting
witness Mr Sunil Rajput @ Mr Sunil Kumar on the agreement
to sell, receipt, possession letter with the signature on Bank
records with Bank Account No- 015501008775 (Saving
Account) from ICICI Bank, 19/20, Central Market, West
Avenue Road, Punjabi Bagh Branch, New Delhi-110026
b) To permit the application of the Defendant No 1 for
appointment of the expert for verification of the voice
recorded with the voice sample that may be allowed to taken
by the expert
c) To permit the application of the Defendant No 1 for
appointment of the expert for verification of the aging of Ink,
writing instrument, paper and printer used for preparing the
documents.
d) Pass any or further orders which this Hon'ble Court may
deem fit and proper in the facts and circumstances of the
present case."
3. The aforesaid application has been allowed by the Civil
Judge (Sr. Divn.). Counsel for the petitioner-plaintiff has assailed the
order claiming that the Trial Court has completely misdirected itself in
allowing the application. He submits that the Trial Court on page No.6
of the impugned order has relied upon ratio of law laid down by
Supreme Court in the case of K.S. Puttaswamy vs. Union of India.
However, the paragraph reproduced in the impugned order does not find
place in the judgment delivered by the Supreme Court. He further
submits that the plaintiff cannot be forced to give voice samples which
in a manner will be forcing him to give self incriminating evidence. He
relies upon Ram Media Limited vs. Dhanraj Singh, RCR (Civil) 583,
Ritesh Sinha vs. State of Uttar Pradesh & Anr. 2019 AIR (Supreme
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Court) 3592, Dharmesh Sharma vs. Tanisha Sharma, People's Union
for Civil Liberties (PUCL) vs. Union of India 1997(1) SCC 301 and
Amar Singh vs. Union of India and others 2011(7) SCC 69.
4. Per contra, Mr. Mittal relies upon various judgments of
High Courts and the Supreme Court to submit that once right from the
beginning, the defendant alongwith its written statement submitted the
transcription before the Trial Court and the plaintiff was confronted with
the recording which was tendered alongwith certificate under Section
65-B of the Evidence Act. Trial Court has rightly allowed the
application filed by defendant-respondent asking the plaintiff to submit
his voice sample so that the factum of the conversation can be
ascertained. He further submits that in view of the specific stand taken
by the defendant with respect to execution of the agreement to sell
claiming that it was merely a loan transaction, the conversation between
the parties will be a vital piece of evidence that will help the Courts in
ascertaining the real controversy between the parties. He further
submits that so far as death of Mr. Sunil Rajput is concerned, the same is
admitted fact. Plaintiff himself has propounded the agreement to sell
and thus no fault can be found with the order passed by the Trial Court
allowing the defendant to get the signatures of Sunil Rajput compared
with his usual signatures that are being procured from his banker.
5. I have heard counsel for the parties and have carefully gone
through the records of the case.
6. So far as order passed by the Trial Court allowing the
defendant to prove signatures of the deceased-attesting witness to
agreement to sell Sunil Rajput is concerned, this Court finds no fault
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with the order passed by the Trial Court for more than one reason. It is
the plaintiff who himself has propounded the agreement to sell and
claimed the signatures of Sunil Rajput thereupon. It is also not in
dispute that Sunil Rajput died just 04 days after the alleged execution of
agreement to sell. Thus, defendant has every right to get the signatures
of Sunil Rajput compared by examining hand writing expert.
7. In the considered opinion of this Court, controversy at the
heart of the lis lies in the nature of the document. Plaintiff claimed it to
be an agreement to sell, whereas defendant claims that the same was
executed only as a security document to secure the loan availed by the
defendant from the plaintiff. The document is in nature of an agreement
that deals with disposition of property. Sections 91 and 92 of the
Evidence Act specifically exclude ocular evidence. None of the
judgment relied upon by the counsel for the parties deals with Sections
91 and 92 of the Evidence Act. It is from the covenants of the contract
itself that the Court has to ascertain the nature of the document.
8. In view of Section 92 of the Evidence Act, the ocular
evidence being excluded specifically, this Court finds that so far as
giving of voice samples and the conversation is concerned, the same
cannot be allowed to be brought on record to dispute the nature of
document especially in view of specific bar under the Evidence Act. The
necessity for external aid may arise only in a case where Court finds that
the nature of document cannot be ascertained by contents thereof. There
is no such satisfaction recorded in the impugned order. Apart therefrom,
counsel for the petitioner brings to the notice of this Court that recording
submitted by the respondent could not be played by FSL. The sample
failed. Resultantly, part of the impugned order whereby petitioner has
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been directed to give voice sample is quashed.
9. In view thereof, the present revision petition is disposed off.
(PANKAJ JAIN)
JUDGE
06.11.2024
Dinesh Whether speaking/reasoned : Yes
Whether Reportable : No
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