Rajnish Kumar @ Pappi vs Smt. Naresh Kumari and Others

Paramjeet Singh, J.—Instant revision petition has been filed for setting aside the order dated 19.8.2011 passed by learned Additional Civil Judge (Senior Division), Sunam, whereby application moved by the petitioner for summoning the record attached with FAO No. 237-M of 2005, has been dismissed on the grounds that it has little relevancy in the maintenance proceedings, cross-examination of PWs is already delayed and authenticity of the audio cassette is yet to be established. I have heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner has vehemently contended that the said cassette record contains the statement of respondent-Naresh Kumari and her relatives. When the examination of Naresh Kumari will be carried out in the court, the same is required to be put to her for the purpose of contradiction. Learned counsel for the petitioner has further contended that earlier he had moved an application which was dismissed by learned Civil Judge (Senior Division), Sunam, vide order dated 30.5.2006, however, this Court vide order dated 1.5.2007 set aside the order passed by learned trial court and directed the trial court to pass appropriate order on merit and dispose of the same in accordance with law. Thereafter, petitioner moved an application, which was dismissed by learned Additional Civil Judge (Senior Division), Sunam, vide order dated 6.5.2009 as premature. Thereafter, petitioner moved another application which has been dismissed vide impugned order dated 19.8.2011. Learned counsel has contended that since witnesses have to be examined by respondent/plaintiffs, the cassette record is to be put to them and for that reason the application was moved.

Learned counsel for the respondents vehemently opposed the contentions raised by learned counsel for the petitioner and contended that this is not an admitted document nor it has been exhibited. It is only marked in the file and has been attached with the FAO. It has no relevancy in evidence and its authenticity is yet to be determined, therefore, it cannot be used for the purpose of contradiction.

I have considered the rival contentions raised by learned counsel for the parties.

Perusal of Section 3 of the Indian Evidence Act, 1872 clearly reveals that any recording on an electronic device is also covered under the definition of documentary evidence. If any inscription is there and it is decipherable then the same can be put to the witness whose voice is allegedly contained in that record for the purpose of contradictions only. However, its authenticity and its admissibility in evidence is to be independently proved by the party.

In view of the above, the impugned order is set aside and the trial court is directed to summon the file. Present revision petition is disposed of in above terms.