ORDER

1. This petition has been filed under Article 227 of the Constitution of India against the order dated 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 sections 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 sections 45 & 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 dated 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.

4. Learned senior counsel has also submitted that the telephonic conversation and samplings are necessary for the proper defense of the defendant. Thus, the same ought to have been allowed by the learned Judge of the trial Court.

5. Shri V.K.Jain,learned senior counsel for the respondent has vehemently opposed the prayer and it is submitted that no case for interference is made out for the reason that the aforesaid conversation had admittedly taken place between the parties subsequent to filing of the suit and thus, the same is not at all relevant as the requirement of the law is that the willingness and readiness of the plaintiff is required to be seen prior to filing of the suit.

6. Shri Jain has further submitted that the civil suit was filed in the year 2005, the written statement was filed in the year 2005 itself, and the transcript and the telephonic conversation were filed before the trial Court in the year 2017, and it was allowed in the year 2019, and the present application has been filed only on 25.11.2022, i.e., after completion of the plaintiff’s evidence which has been rightly rejected by the trial Court. Such procedure cannot be allowed to further protect the petitioner.

7. In rebuttal, learned counsel for the petitioner has submitted that in the aforesaid conversation, the willingness and readiness of the plaintiff can be verified which referred to prior to filing of the suit. Counsel for the petitioner has also submitted that earlier there was no occasion for the defendants to file the aforesaid application, as there was no denial and it is only after the plaintiff’s witnesses have denied in their cross examination about the factum of such conversation, that immediately the said application has been filed.

8. Heard the counsel for the parties and also perused the record.

9. On perusal of the record, it is found that the telephonic conversation between the parties and the proof of the same was already taken on record by the trial Court vide order dated 5.8.2019, the relevant paras of the same read a