Preservation of evidence must be relevant to ongoing issues in the case; requests that constitute a roving inquiry and invade privacy rights are not warranted.

JUDGMENT

[VIA VIDEO CONFERENCING]

Amit Bansal, J. (Oral)

CM No.32398/2021 (for exemption)

1. Allowed, subject to all just exceptions.

2. The application is disposed of.

CM(M) 626/2021 and CM No.32397/2021 (for interim directions)

3. The present petition under Article 227 of the Constitution of India impugns the order dated 21st August, 2021 passed by the Civil Judge-08 (Central), Tis Hazari Courts, Delhi in CS No.1369/2020, whereby the application filed on behalf of the petitioner/defendant No.1 (hereinafter for convenience referred to as the `petitioner') under Section 151 of the Code of Civil Procedure, 1908, seeking directions to Bharti Airtel Limited to preserve and produce the Call Detail Records (CDR) of the mobile number of the respondent No.3/defendant No.2 (hereinafter for convenience referred to as the `respondent No.3'), being the husband of the petitioner, for the period from 08th October, 2020 to 01st July, 2021 and till the final disposal of the suit, has been dismissed. During the arguments pertaining to the said application and the present petition, the counsel for the petitioner limited his prayer to the preservation of the aforesaid CDR.

4. The suit from which the present petition arises was filed by the respondents No.1 and 2/plaintiffs (hereinafter for convenience referred to as the `respondents No.1 and 2'), being the mother-in-law and father-in-law of the petitioner, seeking permanent injunction against the petitioner and her family members from forcibly entering the suit property bearing No.49/7, Rajpur Road, Civil Lines, Delhi and from causing any interference in the peaceful use and occupation of the said property. Vide order dated 15th October, 2020, an interim injunction was passed in favour of the respondents No.1 and 2 and against the petitioner restraining the petitioner from disturbing the peaceful possession of the respondents No.1 and 2 and entering into the suit property. The aforesaid suit was contested on behalf of the petitioner by filing written statement. The petitioner also filed an application under Section 26 of the Protection of Women from Domestic Violence Act, 2005 (PWDV Act) in the said suit praying residence and protection orders under the said Act.

5. The application, from the dismissal of which the present petition arises, was filed on behalf of the petitioner for preservation the CDR of the respondent No.3. It was contended that the CDR would demonstrate that the respondent No.3 has been residing at the suit property and had never shifted to a separate residence as alleged in the plaint. Therefore, the foundation for the suit for permanent injunction was false and hence, it was important to preserve the CDR of the mobile number of the respondent No.3 to prove the that the suit had been filed by the respondents in collusion.

6. The aforesaid application was contested on behalf of the respondents by filing replies. In the replies it is contended that, (i) the Court could not collect evidence for the parties; (ii) since the issues were yet to be framed, the scope of evidence would be decided only thereafter; (iii) the application was a roving and fishing inquiry to prepare for the petitioner's defence in the divorce proceedings pending between the petitioner and the respondent No.3; (iv) the preservation of CDR of the respondent No.3 would amount to invasion of his privacy; (v) the right of residence claimed by the petitioner in the suit property was irrespective and independent of the shifting of residence of the respondent No.3 from the suit property as the petitioner is required to prove that the suit property is the matrimonial home/shared household of the petitioner and respondent No.3; (vi)