Bhikhabhai Chunibhai Patel vs Umeshbhai Kanubhai Patel and Another

K.S. Jhaveri, J.—This petition has been preferred against the order dated 22.02.2010 passed below application Exhibit-23 filed in Special Civil Suit No. 34/2009 whereby, the said application came to be rejected.

The facts in brief are that the Petitioner and the Respondents herein had entered into an Agreement of Sale on 28.03.2008 in respect of one Adalu/Gabhan of the Petitioner.

It is the case of the Petitioner that he had complete faith and trust over the Respondents since their father was known to him and there existed good relationship between them. However, while doing his signature on the sale deed of Adalu/Gabhan, the Respondents fraudulently took his signature on the Power of Attorney documents purported to be executed by the Petitioner.

On the basis of the said document, Respondent No. 1 fraudulently sold a piece of agricultural land belonging to the Petitioner to Respondent No. 2, who happened to be the brother of Respondent No. 1. The aforesaid facts came to the knowledge of the Petitioner at a belated stage.

It is the case of the Petitioner that his nephew, one Thakorebhai, had a telephonic conversation with the Respondents and the said conversation was recorded in a Compact Disc (CD). The Petitioner, thereafter, filed Special Civil Suit No. 34/2009 for declaration and permanent injunction in respect of the so-called sale of suit property under the sale deed, which is stated to have been executed fraudulently. The Petitioner had also preferred application under Order 39 Rule 1 & 2 praying for temporary injunction. It is the further case of the Petitioner that the aforesaid C Ds were produced before the Court below by way of application Exhibit-23 praying to listen the said C Ds before or during the hearing of Exhibit-5 application. However, the said application was rejected by the Court below by way of the impugned order. Hence, this petition.

Heard learned Counsel for the respective parties and perused the documents on record. The two audio Compact Discs produced by the Petitioner vide list Exhibit-22 purports to be the recorded conversation between a witness of the Petitioner and the Respondents in respect of the suit property. The Court below rejected application Exhibit-23 mainly on the ground that considering the stage at which the proceedings were pending, it would not be possible to arrive at a conclusive decision that the voice, as could be heard in the audio Compact Discs, were that of the Respondents. The said C Ds could be admitted at this stage in view of the provisions of the Indian Evidence Act.

Learned Counsel for the Petitioner has relied upon a decision of this Court in the case of Ashwinbhai Somabhai Patel and Another Vs. Nrugendraprasadji Ajendraprasadji Pandey and Others, In that case, the Compact Disc that was taken in evidence was a Video Compact Disc. However, in the present case, it is an Audio Compact Disc and whether or not the voice was that of the Respondents is required to be proved. Therefore, in my opinion, at the time of deciding Exhibit-5 application, the audio C Ds cannot be looked into. Further, the Court below has also found that the conversation in the said C Ds do not support the say of the Petitioner. At a later stage, the Petitioner can submit or prove the same.

In view of the above discussion, I find no merits in the present appeal. Hence, the appeal is dismissed. Rule is discharged. No order as to costs.