- (1.) IN the proceedings under Section 372 of the Indian Succession Act, filed by the applicants-petitioners, Dwarka Prashad, Madan Gopal and Raj Kumar sons of Sh. Ramji Lal, against the first respondent, Braj Mohan S/o Ramji Lal (fourth brother), and sisters (respondents No.3 to 6 herein), the petitioners have filed the present writ petition under Article 227 of the Constitution of India being aggrieved by the impugned order dated 06.11.2012 (Annex.14) passed by learned District Judge, Sri Ganaganagar in Civil Misc. Suit No.308/2009- Dwarka Prashad & Ors. Vs. Braj Mohan & Ors.
(2.) THE learned District Judge, Sri Ganganagar by the impugned order dated 06.11.2012 rejected the application of the petitioners-applicants dated 31.10.2012 under Section 45 of the Indian Evidence Act read with Section 151 of CPC. By filing the aforesaid application, the petitioners prayed to summon the witness, whose evidence was recorded by the learned trial court during which transcript of a tape recorded evidence was produced before the learned trial court. The petitioners by this application wanted a direction to the said witness, namely, Sh. Krishan Meel to give his voice sample before the learned trial court so that same may be examined by the experts in terms of Section 45 of the Evidence Act. The learned trial court held that the compromise between the parties was executed on 01.03.2008 whereas the oral discussion of which the said tape recorded version was produced by the plaintiff was alleged to be of 06.12.2009 and during the course of examination of the said witness, namely, Sh. Krishan Meel he has denied that he was available in the said discussion on 06.12.2009; and voice in question attributed to him, was not his voice. The learned trial court has held that since the said witness, namely, Sh. Krishan Meel was examined by the plaintiff himself and was also cross-examined, therefore, to further allow the applicants-petitioners to ask the said witness, Sh. Krishan Meel to give his voice sample so that Exhibit-15 CD (Compact Disc) and Exhibit-20 Mobile Chip voice could be compared with his voice sample by expert under Section 45 of the Evidence Act, could not be now directed, as prayed. Mr. C.S. Kotwani, learned counsel appearing for the petitioners-applicants relying upon decision of this Court in the case of Pustimargiya Tritiya Peeth Pranyas Shri Dwarkadheesh Mandir, Kankroli & Ors. Vs. Additional District Judge, Rajsamand & Ors. reported in 2009 (1) WLC 183 and Punjab & Haryana High Court decision in the case of Dial Singh Narain Singh Vs. Rajpal Jagan Nath & Ors. reported in AIR 1969 P&H 350, urged that the learned trial court has erred in not allowing the applicants- petitioners to again summon the said witness, namely, Sh. Krishan Meel who was a mediator between the brothers in the compromise talks on 06.12.2009 and such comparison of his voice by the expert was necessary in the interest of justice.
(3.) ON the other hand, the respondent No.1- Braj Mohan, present in person, who argued his own case, vehemently opposed the said submissions and urged that the applicants brothers had even filed FIR No.234/2010 dated 09.06.2010 in Police Station- Jawahar Nagar, Distt: Sri Ganganagar against him, however, in the said FIR, negative FR was given by the investigating officer; and on the other hand, reverse proceedings for prosecuting the applicants under Section 182/2011 of IPC were directed to be filed against the applicants. He further argued that since Sh. Krishan Meel was also examined as plaintiffs' witness and he had denied that he was available in the compromise talks with brothers on 06.09.2009 and voice in question of the tape recorded version (CD) and Mobile Chip, was not his, he could not be compelled to give his voice sample.;