"Certain astonishing facts have come to light during the hearing of this revision. One of the facts relate to the purity of the relation between the husband and wife. Without the knowledge of the wife, the husband was recording her conversation on telephone which she was making with her friends and parents in india. If the husband is of such a nature and has no faith in the wife even about her conversations to her parents, then the institution of marriage itself becomes redundant. There should be some trust between husband and wife and in any case, in my view, the right of privacy of the wife is infringed by her husband by recording her conversation on telephone to others and if such a right is violated, which is fundamental, can such husband, who has resorted to illegal means, which are not only unconstitutional, but also immoral, later on, rely on the evidence gathered by him by such means. Clearly, it must not be permitted.
For all these reasons, I believe that the act of tapping itself by the husband of the conversation of his wife with others was illegal and it infringed the right of privacy of the wife. Therefore, these tapes, even if true, cannot be admissible in evidence. Hence, Ex. P. 18 itself is not admissible in evidence and there is no question of forcing the wife to undergo a voice test and then ask the expert to compare the portions denied by her with her admitted voice."
Andhra High Court
Decided; on 17 February, 2009
Citation;2009(5)ALT518 (AP)
Mrs. Neera Agarwal. Vs. Mahender Kumar Agarwal
2. Sri S.R. Ashok, learned senior counsel representing the revision petitioner in all these civil revision petitions had taken this court through the grounds which had been raised in these civil revision petitions and would maintain that in the facts and circumstances of the case, the learned Judge had not exercised the discretion properly and inasmuch as judicious approach had not been adopted by the learned Judge and further in the light of the facts and circumstances well explained since the reliefs prayed for in these applications being highly essential for establishing the case of the revision petitioner, the dismissal of these applications cannot be sustained. The learned senior counsel also had drawn the attention of this court to the respective portions of the orders under challenge, the reliefs prayed for in these applications and ultimately would maintain that since these are highly essential to establish the stand taken by the revision petitioner and even if these applications are allowed inasmuch as no serious prejudice would be caused to the respondent in the facts and circumstances of the case, the civil revision petitions to be allowed.
3. Per contra, Sri Prakash Reddy, the learned senior counsel representing the respondent in all these applications would maintain that in the light of the convincing reasons recorded by the learned Judge, these are not fit matters to be interfered with under Article 227 of the Constitution of India. The counsel also would maintain that there is no question of sending a xerox copy to an expert for the purpose of examination. Even otherwise inasmuch as these applications had been thought of by the revision petitioner only with a view to further delay the disposal of the main matter, inasmuch as these applications are not bona fide, these applications are liable to be dismissed. The learned senior counsel also placed reliance on certain decisions.
4. In the light of the facts and circumstances and also the submissions made by the senior counsel Sri S.R. Ashok and Sri Prakash Reddy, representing the parties, the following points arise for consideration in these civil revision petitions.
(1) Whether the orders under challenge in these civil revision petitions are to be disturbed or to be confirmed in the facts and circumstances of the case?
(2) If so, to what relief the parties would be entitled?
5. Point No.1:
These civil revision petitions are being disposed of by an common order, though the learned Judge of the Family Court, Hyderabad made separate orders, in view of the commonality of the questions involved in these matters and in view of the fact that these interlocutory orders were made in a matrimonial O.P.No.766 of 2001, C.R.P.No.5467 of 2007 is filed by Mrs.Neera Agarwal, wife of respondent-Mahender Kumar Agarwal, being aggrieved of an order made by the Family Court in I.A.No.563 of 2003 in O.P.No.766 of 2001 on the file of the Judge, Family Court, Civil Court, Hyderabad.
6. The said application was filed by the petitioner-wife under Section 151 of the Code of Civil Procedure (hereinafter in short referred to as "the Code" for the purpose of convenience) praying the court to send the letter, dated 05.8.1995, to a handwriting expert calling for an expert opinion with regard to handwriting contained in the said letter by comparing the same with respondent- husband's handwriting.
7. The learned Judge, after formulating the point for determination at para 6, recorded reasons and ultimately dismissed the application holding that there is no necessity for the court to send the letter, dated 05.8.1995, to handwriting expert.
8. C.R.P.No.5468 of 2007 is filed by the self same petitioner being aggrieved of an order made in I.A.No.753 of 2007 in O.P.No.766 of 2001 on the file of the Judge, Family Court, City Civil Court, Hyderabad.
9. This application was filed by the revision petitioner under Section 45 of the Indian Evidence Act, 1872 (hereinafter in short referred to as "the Act" for the purpose of convenience) praying the court to send digital video cassettes and VCDs to forensic laboratory for establishing the genuineness of the cassettes and VCDs as well as establishing the identity of P.W.1 in those cases.
10. The learned Judge, after formulating the point for consideration at para 5, recorded reasons and ultimately dismissed the application holding that there is no necessity to send the DVDs and CDs and photographs which are marked as Ex.R-18, Ex.R-118 and Ex.R-157 to any forensic lab.
11. C.R.P.No.5471 of 2007 is filed as against an order made in I.A.No.749 of 2007 in O.P.No.766 of 2001 on the file of the Judge, Family Court, City Civil Court, Hyderabad.
12. The said application was filed by the revision petitioner-wife praying the court to summon one Meera Madhusudhan, presently residing at 136, Tanjong Rhu Road, #04-07, pebble Bay Condominium, Singapore - 436921, with her permanent address at 44 Jupiter Colony, Gunrock Enclave, Phase II, Near Diamond Point, Secunderabad, along with her passport to answer all the questions raised through his evidence.
13. The learned Judge, after formulating the point for determination at para 5 recorded certain reasons at para 6 and ultimately dismissed the application holding that there is no necessity for the Court to summon one Meera Madhusudhan, who is a third party and petitioner has to rely on the evidence she has produced before the Court and also on the admissions if any made by the respondent in this evidence.
14. C.R.P.No.1720 of 2008 is preferred by the self same revision petitioner- wife being aggrieved of an order made in I.A.No.562 of 2006 in O.P.No.766 of 2001 on the file of the Judge, Family Court, City Civil Court, Hyderabad, and the said application was filed praying the Court to send audio cassettes to forensic laboratory located either at Hyderabad or at Delhi for confirmation of the voices of the witnesses P.W.4 and P.W.12 contained in the audio cassettes.
15. The learned Judge having formulated the point for consideration at para 6 recorded reasons and came to the conclusion that the petition to be dismissed holding that there is no necessity for the court to send the audio cassettes alleged to be containing the voices of P.W.4 and P.W.12 for testing to forensic lab.
16. Aggrieved by these respective orders made by the learned Judge of the Family Court aforesaid, these civil revision petitions had been preferred.
17. As already aforesaid, in view of the fact that all these applications had been filed by the wife in a matrimonial dispute as against the husband, for the purpose of convenience, all these civil revision petitions are being disposed of by a common order though separate orders had been passed by the learned Judge, Family Court aforesaid.
18. No doubt, these matters are appearing under the caption "INTERLOCUTORY", but however, at the request made by the counsel representing the parties, the civil revision petitions are being disposed of finally.
19. C.R.P.No.5467 of 2007:
The revision petitioner-wife, Neera Agarwal, filed the civil revision petition being aggrieved of an order made in I.A.No.563 of 2006 in O.P.No.766 of 2001 on the file of the Family Court aforesaid. The said application was filed by the petitioner under Section 151 of the Code praying the Court to send a letter dated 05.8.1995 to handwriting expert calling for an expert opinion with regard to handwriting contained in the said letter by comparing the same with respondent's handwriting.
20. The case of the petitioner is that respondent filed O.P.No.766 of 2001 praying for the relief of divorce and he had examined himself as P.W.1 and other witnesses also were examined. When the respondent was cross-examined, he was confronted with a letter dated 05.8.1995. Though the respondent admitted to have sent a letter to his brother S.N. Agarwal, he gave certain answers that the letter dated 05.8.1995 shown to him may not be the one sent by him. Since the letter dated 05.8.1995 is in the handwriting of the respondent and since the respondent is denying the same, it may be sent to handwriting expert for opinion.
21. The respondent resisted the said application stating that it is true the respondent was examined as P.W.1 and during his cross-examination he was confronted by a letter said to have written by him and he had denied writing of any such letter. It is also his further case that the question involved in the divorce O.P. is that whether the respondent is entitled to the relief of divorce and the factors relating to the alleged letter and contents thereof being irrelevant and since the same would not seriously alter the situation, the application to be dismissed. Further specific stand had been taken that the docket would go to show that the petitioner has been adopting delaying tactics.
22. To the counter-affidavit, reply-affidavit also had been filed again reiterating the stand taken in the affidavit filed in support of the application and also narrating certain further facts.
23. The learned Judge formulated the following point for determination: "In the circumstances stated by the petitioner in the affidavit whether the letter dated 05.8.1995 can be sent to expert opinion for comparing the same with the admitted handwriting of respondent?"
The learned Judge recorded certain reasons and came to the conclusion that it is not at all necessary for the petitioner to send the said letter alleged to have been written by the respondent addressed to his brothers and the court is capable of deciding the main issues between the parties by analysing the voluminous evidence already produced before the court and hence the petition is liable to be dismissed and accordingly dismissed the said application.
24. No doubt, it is stated that since baseless allegations had been made as against the petitioner and these are made on one of the grounds in the divorce O.P. the contents of the letter would be highly relevant. Incidentally, the relevant portions of the evidence available on record and also Ex.R-78 had been referred to. Several other factual details also had been brought to the notice of this Court.
25. Reliance was placed on the decision in Bishwanath Rai v. Sachhidanand Singh1 where in the Apex Court at paras 4 and 7 observed as hereunder: "The High Court has held that the appeal by Swamiji on the ground of caste, in the manner described above, has been proved in respect of villages Harpur, Piprarh, Kanahari, Sujatpur, Chhitandihra and Kuchhila. This finding has been recorded by the High Court on the basis of the oral evidence of witnesses to whom or in whose presence the appeal was made by Swamiji in these various villages. Before dealing with this oral evidence, however, we consider it advisable to indicate our views in respect of letter Ext. I which purports to have been written by Swamiji to witness Ram Chandra Sharma. This letter has been proved by Ram Chandra Sharma to be in the handwriting of Swamiji and he also proves that it was received by him in the beginning of January, 1969. On behalf of the appellant, two alternative pleas were taken in the written statement in respect of this letter. It was first contended that such a letter could not possibly have been written by Swamiji. In the alternative, it was pleaded that, if this letter was written by Swamiji, it must have been manoeuvred in collusion between Ram Chandra Sharma and Swamiji. The letter having been proved by Ram Chandra Sharma, the burden lay on the appellant to prove circumstances which would induce the Court to hold that either the letter was not written by Swamiji or that it was written in collusion between him and Ram Chandra Sharma. No evidence, in order to establish these alternative pleas, has been produced on behalf of the appellant. Even the cross-examination of Ram Chandra Sharma does not cast any doubt on his evidence to the effect that this letter was written by Swamiji and that it was received by him in the beginning of January, 1969.
At one stage in its judgment, the High Court has stated that this letter was not relevant when Swamiji himself was not examined and that, if it had been relevant, the Court would have been inclined to entertain the request for examination of Swamiji as a court witness. Great reliance was placed by learned counsel on this view expressed by the High Court in its judgment. It appears to us what the High Court was quite wrong in holding that this letter was not relevant. The contents of this letter were proved by the evidence of Ram Chandra Sharma who stated that he knew the handwriting of Swamiji with whom he had had correspondence even earlier. His evidence, thus, was sufficient to prove that Swamiji wrote this letter to Ram Chandra Sharma, and that the statements contained in the letter were made by Swamiji himself. It is true that, in the absence of examination of Swamiji the correctness of those statements cannot be held to be proved. Thus, the evidence of Ram Chandra Sharma proves the contents of the letter, but not the correctness of those contents. The letter was, therefore, admissible to the extent to which the fact that Swamiji wrote such a letter to Ram Chandra Sharma with its contents has bearing on the issues involved in this case. To that extent, the letter was relevant and admissible. However, we are not inclined to agree with the High Court that, if this letter is relevant and admissible, the Court should have examined Swamiji as its own witness. The relevancy or admissibility was judged by the Court at the last stage of delivering the judgment. There was no justification for the appellant to wait for the judgment and not examine Swamiji as his own witness as held by us above. In the circumstances, this letter has to be taken into account to the extent just indicated by us above."
26. Reliance also was placed on the decision in Velaga Sivarama krishna v. Velaga Veerabhadra Rao2 wherein it was held that whenever a party disputes the signature on a particular document, two remedies are open to him, either to request the Court to compare the signatures or to file an application to send the document to the expert for comparison. When the petitioner opted to file an application to send the document to the handwriting expert, no prejudice will be caused to either party. When he is asserting that the signature is that of the said party, even though there is a gap between the disputed signatures and admitted signatures, a science has been developed to compare such signatures also by taking into consideration the direction of the strokes, the speed of writing, the pattern of writing etc., therefore, it cannot be said that no useful purpose will be served by sending the document to the expert. After comparison, if the similarities of the disputed signature and the admitted signatures are very negligible, then the Court can formulate its opinion with the assistance of the expert's report and by comparing the signatures whether the report has to be accepted or not.
27. Reliance also was placed on a decision of this Court in Renu Devi Kedia v. Seetha Devi3.
28. In Bheri Nageswara Rao v. Mavuri Veerabhadra Rao and others4 a learned Judge of this court observed at paras 4 and 5 as hereunder: "Section 45 of the Act enables the court to obtain the opinion of an expert on various aspects, including the one relating to the comparison of disputed signatures. An expert would be in a position to render his opinion, only when the original of the document containing the disputed signature is forwarded to him. Further, there can be effective comparison and verification of the signatures, if only another document containing the undisputed signatures of the contemporary period are made available to the expert. In the instant case, respondents 1 to 3 filed Exs.B.13 and B.15, which are, admittedly, the Xerox copies of general power of attorney, dated 21-12-1988 and khararnama, dated 21- 12-1988. It is rather incomprehensible that an expert would be able to undertake analysis of the imprint of a signature, on a Xerox copy.
The opinion of a hand writing expert involves the analysis of the slant, which a person uses in the matter of putting his signature, and in some cases, the point of time, at which it may have been subscribed. These analyses would become possible only vis-a-vis an original signature; and the signature mark on a Xerox copy of a document can never constitute the basis."
29. On a careful analysis of the respective stands taken by the parties and also in the light of the fact it is stated that this is a letter said to have been addressed to his brother by the respondent, the Court is at liberty to appreciate the evidence available on record and record appropriate findings in relation to the said letter as well. How far the contents of the letter to be relied upon also may have to be gone into while disposing of the main O.P.
30. It is needless to say that even if the letter is sent to handwriting expert calling for expert opinion by comparing the handwriting, this is only opinion evidence and in the light of the voluminous evidence available on record the Court may appreciate and consider this aspect also along with the other evidence available on record and in the light of the limited evidentiary value to this letter in the peculiar facts and circumstances of the case, it cannot be said that the learned Judge of the Family Court aforesaid had committed any serious illegality warranting interference under Article 227 of the Constitution of India. However, it is made clear that the learned Judge may also go into this question while appreciating the other evidence available on record and record appropriate findings after careful scrutiny.
31. With the above observations, the civil revision petition is disposed of. No costs.
32. C.R.P.No.5468 of 2007:
The revision petitioner-wife, Neera Agarwal, filed the present civil revision petition as against the order made in I.A.No.753 of 2007 in O.P.No.766 of 2001 on the file of the Judge, Family Court aforesaid.
33. In the elaborate grounds Ex.R-88 and Ex.R-118 had been referred to and Section 73 of the Act also had been relied on.
34. This is an application filed by the petitioner-wife, who is the respondent in F.C.O.P.No.766 of 2001 under Section 45 of the Indian Evidence Act, praying the Court to send the digital video cassettes and VCDs to forensic laboratory for establishing the genuineness of the cassettes and VCDs as well as establishing the identity of P.W.1 in this regard.
35. It is the case of the petitioner after recalling P.W.1 when P.W.1 was confronted with video cassettes, photographs and report in respect of certain incidents, P.W.1 had denied the same as reflected in the video and also all the persons in the video. In the said circumstances, it became necessary to send the digital video cassettes and VCDs to forensic laboratory to establish that the persons who are appearing in the digital video cassettes and VCDs are the respondent, who is examined as P.W.1 and a lady Meera Madhusudhan.
36. The respondent resisted the said application on the ground that the said application is misconceived one. These VCDs and photographs filed by the petitioner are not at all relevant for the inquiry. The petitioner had indulged in creation and concoction of records and she is trying to rely on these created records. The respondent came to the court and filed O.P. praying for divorce and he had been examined himself in detail and independent witnesses also had been examined. The other allegations also had been denied.
37. The learned Judge formulated the point for determination at para 5 "whether the DVDs and VCDs (exhibit numbers not mentioned) can be sent to forensic laboratory as prayed for by petitioner?"
38. The learned Judge referred to Section 15 of the Family Courts Act and observed that the proceedings before the Family Court to be conducted in a summary manner and in the light of the fact that there is voluminous evidence available on record, there is no necessity for the Court to send DVDs, CDs and photographs to the forensic laboratory as prayed for by the petitioner. The learned Judge also referred to Ex.R-18, Ex.R-118 and Ex.R-157 in this regard.
39. No doubt reliance was placed on the decision of the Apex Court in Gurdial Singh and others v. Raj Kumar Aneja and others5.
40. Reliance also was placed on the decision in Rayala M. Bhuvaneswari v. Nagaphanender Rayala6wherein a learned Judge of this Court observed at paras 3 and 13 as hereunder:
"Certain astonishing facts have come to light during the hearing of this revision. One of the facts relate to the purity of the relation between the husband and wife. Without the knowledge of the wife, the husband was recording her conversation on telephone which she was making with her friends and parents in india. If the husband is of such a nature and has no faith in the wife even about her conversations to her parents, then the institution of marriage itself becomes redundant. There should be some trust between husband and wife and in any case, in my view, the right of privacy of the wife is infringed by her husband by recording her conversation on telephone to others and if such a right is violated, which is fundamental, can such husband, who has resorted to illegal means, which are not only unconstitutional, but also immoral, later on, rely on the evidence gathered by him by such means. Clearly, it must not be permitted.
For all these reasons, I believe that the act of tapping itself by the husband of the conversation of his wife with others was illegal and it infringed the right of privacy of the wife. Therefore, these tapes, even if true, cannot be admissible in evidence. Hence, Ex. P. 18 itself is not admissible in evidence and there is no question of forcing the wife to undergo a voice test and then ask the expert to compare the portions denied by her with her admitted voice."
41. The learned Judge, in fact, had referred to the following decisions:
(1) B. Vandana Kumari v. P. Praveen Kumar (2006 (6) ALD 548 = 2007 (1) ALT 193;
(2) J. Thirupathaiah v. K. Subba Rao (AIR 1983 AP 197);
(3) Mr. X v. Hospital Z (1998) 8 SCC 296 = AIR 1999 SC 495 = 1999 (1) ALD (SCSN) 9;
(4) Padala Kaniki Reddy v. Padala Sridevi (2006 (5) ALD 322 = 2006 (5) ALT 762;
(5) People's Union for Civil Liberties v. Union of India (1997) 1 SCC 301 = AIR 1997 SC 568 = 1997 (2) ALD (SCSN) 39;
(6) R.M. Malkani v. State of Maharashtra (AIR 1973 SC 157);
(7) Sharda v. Dharmpal (2003 (2) ALD 1 (SC) = I (2003) DMC 627 (SC) = AIR 2003 SC 3450);
42. In the light of the voluminous evidence available on record, it is needless to say that this being only an opinion evidence, the learned Judge is at liberty to appreciate these aspects also carefully and cautiously in the light of the different provisions of the Act and appreciate the same in accordance with Law. In the light of the same, the order under challenge need not be disturbed under Article 227 of the Constitution of India.
43. With the above observations the civil revision petition is disposed of. No costs.
44. C.R.P.No.5471 of 2007:
The petitioner-wife, Mrs. Neera Agarwal, filed the present civil revision petition, as against an order made in I.A.No.749 of 2007 in O.P.766 of 2001 on the file of the Judge, Family Court, City Civil Court, Hyderabad.
45. In the grounds of revision Ex.R-118 had been referred to. Ex.P-1 also had been referred to and several elaborate grounds had been specifically raised. It is the case of the petitioner is that the main ground of contest in the O.P. filed for divorce is on account of involvement of another lady by name Meera Madhusudhan with the respondent the problem arose. The respondent is trying to take undue advantage of his own wrong doing and for this purpose he had chosen to file the O.P. on baseless and untenable grounds. In support of the case of the petitioner several digital cassettes as well as VCDs along with photographs and reports are filed before the Court. The video recordings were also played in the open Court. They would clearly pinpoint both the respondent and the said lady Meera Madhusudan in the matrimonial relationship between petitioner and the respondent and also with regard to evidence placed before the Court with regard to false criminal complaints lodged by the said Meera Madhusudhan against the petitioner and her minor child and with regard to the evidence of transfer of major shares in the name of Meera Madhusudhan by respondent and investments made by respondent in the name of Meera Madhusudhan including the evidence that Meera Madhusudhan visited the office of counsel assisting respondent along with respondent at Hyderabad and hence it became necessary to summon the said Meera Madhusudhan, who is now residing at Singapore.
46. The respondent-husband filed counter opposing the said application. The case of the respondent is that the application filed under Order 16 Rule 14 of the Code praying for summoning of Meera Madhusudhan is absolutely is misconceived remedy. The allegation that the problem arise between the petitioner and respondent on account of involvement of Meera Madhusudhan is incorrect. The respondent had examined more than 10 witnesses who had deposed about misbehaviour of the petitioner. The alleged VCDs, video cassettes and photographs filed by the petitioner are relevant to the inquiry of the O.P. is incorrect. No doubt, specific stand had been taken that all these were created and concocted for the purpose of present litigation.
47. The learned Judge formulated the following point for determination:
"Whether one Meera Madhusudhan who is presently residing at Singapore according to petitioner can be summoned?"
48. The learned Judge recorded reasons at para 6 and came to the conclusion that there is no necessity for the Court to exercise option under Order 16 Rule 14 of the Code to summon Meera Madhusudhan, who is third party and presently residing at Singapore and accordingly dismissed the said application.
49. Reliance was placed on Veluguri Vijaya Venkata lakshmi Narayana v. Athukuri Nageshwara Rao7 wherein it was observed at paras 3, 4 and 5 as hereunder:
"Order 16, Rule 14 of the Code reads as under :
"Court may of its own accord summon as witnesses strangers to suit: Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary to examine any person, including a party to the suit, and not called as a witness by a party to the suit the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document. "
In K. S. Agha Mir Ahmad Shah v. Mir mudassir Shah, AIR 1944 PC 100 while dealing with the aspect of power of the Court to examine witnesses itself is discretionary, their Lordships of the Privy Council had observed that the power of the Court under order 16, Rule 14 to examine witnesses on its own motion is discretionary, where the courts in India have for very good reasons refused to exercise their discretion, their lordships of the Privy Council also would not exercise it. In P. Subrahmanyam Chetty v. Katari Ellappa Reddy, 1988 (1) Andh LT 279, while dealing with the scope and ambit of Order 16, Rule 14 of the Code, it was held that an application to summon and examine a person as Court witnesses may be considered as passing on the information and the Court may examine the issue and exercise its discretion. In Kosuru Kalinga maharaju v. Kosuru Kaikamma, 2000 (2)Andh LT 409 : 2000 AIHC 786, this Court while dealing with the aforesaid provision held as under:
"A reading of Rule 14 of Order 16 would leave no doubt in the mind to say that either party to the suit proceedings can summon a person including a party to the suit who is not called as a witness by a party to the suit, as a witness. Legislature has felt the need for a direct provision enabling the Court to summon a party for giving evidence as a witness to help curbing the malpractice of a party not appearing as a witness and forcing the other party to call him as a witness, and adjudicate the issues properly. What is laid down in the above provision is that if the Court is satisfied about such a necessity to cause any person to be examined as a witness, Court can summon such person as a witness. The emphasis is laid on the subjective satisfaction of the Court. However, this power is to be examined by the Courts guardedly and not as a matter of routine".
The counsel for the revision petitioner made a serious attempt to show that the discretion was not exercised properly or cautiously. The counsel also maintained that this is a fit case where the certified copies could have been obtained and absolutely there is no necessity of examining these witnesses as Court witnesses and if the parties are permitted to adopt such a procedure in every matter where a party is unable to examine the witnesses in regular course in view of several procedural hurdles placed in this regard by different provisions of the code, this course will be adopted and definitely allowing such applications in a routine way would prejudice the rights of the opposite parties. I had given my earnest consideration to the reasons recorded by the learned Principal Junior Civil Judge, Sattenapalli. The learned Judge had taken into consideration the respective contentions of the parties and had ultimately arrived at a conclusion that the respondent in the C. R. P., defendant in the suit, should be permitted to summon the witnesses to examine them as Court witnesses. It is needless to say that this is a discretionary order. No doubt, the discretion may have to be exercised with care and caution after recording the reasons for allowing such application, no hard and fast rule can be laid down in this regard. In the light of the reasons recorded by the learned Principal Junior Civil judge, Sattenapalli, it cannot be said that the impugned order suffers from any illegality warranting interference in a C. R. P. filed under Article 227 of the Constitution of India."
50. In P. Subrahmanyam Chetti v. K. Ellappa Reddy8 it was observed as hereunder:
"This revision petition at the instance of the defendant arises out of an application filed under Order 16 Rule 14 C P C to summon Semar. U Yellappareddy and examine him as a court witness.
The court below declined to do so holding that the defendant cannot as a matter of right seek the examination of a person as a court witness and it is purely discretionary and the court may do so on its own accord only. Order 16 Rule 14 C. P. C. is as follows: -
"14. Court may of its own accord summon as witnesses strangers to suit: Subject to the provisions of this code as to attendance and appearance and to any law for the time being in force where the court any time thinks it necessary to examine any person, including a party to the suit and not called as a witness by a party to the suit, the court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed and may examine him as a witness or require him to produce such document".
Order 16 Rule 14 C P C provides that the court may of its own initiative or sub motu cause any person to be examine as a witness though either of the parties did not choose to take steps for summoning such person as a witness. This power obviously intended in the interests of justice is aimed at clarifying certain situations and remove ambiguities and fill up lacuna and thereby further justice. The parties may refrain from summoning a crucial witness in the event of their apprehension of full-fledged support and in such a situation the court may summon such person to give evidence to arrive at the correct factual picture and this witness is called a 'court witness'. Order 16 Rule 14 visualises the initiative by the court only to examine any person and it is for the court to consider of its own accord the necessity of invoking power under this rule without propulsion or application by the parties. The exercise of this power is in the nature of "self-starter" without extraneous pressure or pull. The court below while declining to invoke the power appears to have been swayed by consideration that the court is precluded from doing so at the instance of the either party It is true that the Court is not obligated to invoke the power at the instance of the parties and the parties have no right to move an application under this rule. But however either of the parties can bring to the notice of the court the necessity for examining any person as court witness. On such application the court may scan the totality of facts and circumstances apart from the situations projected by the parties and arrive at an independent conclusion as to the necessity of a court witness. The parties are not totally barred from moving an application and the court is not bound to take action on the averments or allegations contained in the application and it is the sole discretion of the court. The application by the parties may be considered as passing on the information so that the court may examine the issue in-depth on the facts and circumstances set out in the application and other aspects."
51. In K.S. Agha Mir Ahmad Shah and another v. Mir Mudassir Shah and others9 it was held that the power of the Court under order 16 Rule 14 to examine witnesses on its own motion is discretionary and where the Courts in India have for very good reasons refused to exercise their discretion, their Lordships of the Privy Council also would not exercise it.
52. Strong reliance was placed on the decision in National Insurance Company v. Susru Sea Foodswherein the learned Judge of this Court at paras 16, 17, 18, 19 and 20 observed as hereunder:
"A plain reading of the said provision makes it abundantly clear that a civil court is conferred with jurisdiction and power to examine any person including a party to the suit and not called as a witness by a party to the suit. This can be done on its own motion, which means and includes that its jurisdiction can even be set in motion by any of the parties to the suit. The words "to examine any person, including a party to the suit" has been substituted for "to examine any person other than a party to the suit" by act 104 of 1976, with effect from 1-2-1977. What was otherwise implicit is now made explicit that even a party to the suit and not called as a witness by a party to the suit can be called by the court as a witness to give evidence, or to produce any document in his possession.
This court in Kosuru Kalinga Maharaju v. Kosuru Kaikamma and others while considering the scope of Order XVI Rule 14 of the Code of Civil Procedure observed:
"A reading of Rule 14 of Order 16 would leave no doubt in the mind to say that "either party to the suit proceedings can summon a person including a party to the suit who is not called as a witness by a party to the suit, as a witness. " Legislature has felt the need for a direct provision enabling the court to summon a party for giving evidence as a witness to help curbing the malpractice of a party not appearing as a witness and forcing the other party to call him as a witness, and adjudicate the issues properly. What is laid down in the above provision is that if the court is satisfied about such a necessity to cause any person to be examined as a witness, court can summon such person as a witness. The emphasis is laid on the subjective satisfaction of the court. However, this power is to be exercised by the courts guardedly and not as a matter of routine. "
In Awadh Kishore Singh and another v. Brij Bihari Singh and others, it is observed:
"No provision could be brought to our notice on behalf of any of the parties to show that a party is debarred from examining its adversary as a witness on his behalf. A plaintiff can examine any witness he so likes - the witness may be a stranger, may be a man of his own party or party himself or may be a defendant or his man. Therefore if a plaintiff wants to examine defendant as a witness on his behalf, he cannot be precluded from examining him on the ground that the said defendant has neither appeared in the suit nor upon appearance filed written statement nor prayer for filing written statement has been rejected. "
In the instant case, it is not as if, one of the defendants is summoned to give evidence on behalf of the plaintiff - though there are no legal impediments, as such, for even summoning a defendant to be examined as a witness at the instance of the plaintiff; if not as a witness on behalf of the plaintiff. The court, in the interest of Justice, can always summon even a stranger and in a given case any of the parties to the suit to give evidence if such evidence is required for resolution of the dispute in an effective manner.
The petitioners/defendants is a company registered under the companies act; one of its officers is sought to be examined to give evidence as a witness on the ground that he is fully and completely aware of the facts which are required to be brought before the court for an effective adjudication of the issues that arise for consideration in the suit. There are no legal impediments for summoning the officer of the defendants-company to give evidence in the suit as a witness."
53. This Court is not inclined to express any opinion relating to the aspect whether Meera Madhusudhan and examination of said witness as a witness would be crucial or not for the purpose of present litigation, but however, when certain allegations are made and when acceptable evidence in this regard be placed by the petitioner, the Court may have to appreciate the said evidence also and in the light of the same, the non-examination of Meera Madhusudhan and the impact thereof while deciding the divorce O.P. also may have to be considered while appreciating the other evidence available on record.
54. No doubt, several aspects had been pointed out in the affidavit filed in support of the application and the counter-affidavit and reply-affidavit as well and several details had been argued in elaboration.
55. Be that as it may, in the light of the facts and circumstances, liberty is given to the petitioner to move appropriate application in this regard after adducing the oral evidence in toto and in the event of the petitioner being satisfied that it may be essential to summon Meera Madhusudhan despite the fact that adverse inference may be drawn for non-examination, the petitioner may move appropriate application at the appropriate stage.
56. With the above observation, the civil revision petition is disposed of. No costs.
57. C.R.P.No.1720 of 2008:
This civil revision petition is filed by the petitioner-wife, Mrs. Neera Agarwal, being aggrieved of an order made in I.A.No.562 of 2006 in O.P.No.766 of 2001 on the file of the Judge, Family Court, City Civil Court, Hyderabad.
58. The evidence of P.W.4 and P.W.12 also had been referred to in the grounds and several averments were made in the affidavit filed in support of the application. It is the case of the petitioner that respondent examined one O.P. Jalan as P.W.4 and one George Pearson as P.W.12 by filing their evidence affidavits and during the course of cross-examination the above witnesses were confronted with recording of their voices on audio cassettes and these belie the statement made in the affidavits. Hence, the said application had been filed under Section 151 of the Code praying the court to send audio cassettes to forensic laboratory either at Hyderabad or at Delhi for confirmation of the voices of the witnesses P.W.4 and P.W.12 contained in the audio cassettes.
59. The same was resisted by filing counter.
60. The learned Judge having formulated the point for determination at para 6 "in the circumstances whether the audio cassettes filed in court (exhibit numbers not mentioned in the affidavit) can be sent to forensic laboratory for testing?" recorded reasons and came to the conclusion that the matter is being dragged on for sufficiently a long time and when voluminous documentary evidence is produced before the Court apart from the oral evidence, this may not be necessary and accordingly dismissed the said application.
61. Reliance was placed on the decision in People's Union for Civil Liberties (PUCL) v. Union of India and another10 wherein the Apex Court held that right to privacy is part of right to life and personal liberty enshrined under Article 21 of the Constitution and once the facts in a given case constitute a right to privacy, Article 21 is attracted and the said right cannot be curtailed except according to the procedure established by law.
The Apex Court also further observed in the decision aforesaid at para 19 as hereunder;
"The right to privacy - by itself - has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as "right to privacy". Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one'' home or office. Telephone -tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law."
62. In the light of the convincing reasons recorded by the learned Judge it is made clear that the learned Judge is at liberty to examine and scrutinize the evidence available on record which had been specifically referred to with all care and caution while disposing of the O.P. and record appropriate reasons.
63. With the above observations, the civil revision petition is disposed of. No costs.
64. Point No.2:
In the result, all the civil revision petitions are disposed of as indicated above. No costs.
?1 AIR 1971 Supreme Court 1949
2 AIR 2009 A.P. 47
3 AIR 2005 AP 180
4 2006 (4) ALD 295
5 AIR 2002 Supreme Court 1003
6 2008 (2) ALD 311
7 AIR 2004 AP 192
8 1987 (1) APLJ 449
9 AIR 1944 P.C. 100
10 (1997) 1 SCC 301
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