- (1.) THIS is a defendant's second appeal arising out of a suit for ejectment from a shop situated at Dargah Bazar, Ajmer and which bears No. A. M. C. VII/421. The shop was rented out by the plaintiff-respondent to the defendant-appellant on a monthly rent of Rs. 25/- per month. The ejectment was sought on the ground that the plaintiff required the suit shop for his bonafide personal necessity, as the plaintiff's son Gheesulal was to settled in business of fancy stores in that shop. The tenancy was determined by a notice dated 7-6-1967.
(2.) THE defendant admitted the tenancy. He also admitted the receipt of the notice terminating the tenancy, but he disputed that the plaintiff had any bonafide need for the suit shop. He asserted that the plaintiff was desirous to increase the rent and has consequently filed the suit with this oblique motive. The learned Munsif, Ajmer, before whom the suit was filed set down only one issue for trial about bonafide reasonable necessity of the plaintiff for the suit shop. Both this parties led their evidence. The learned Munsif held that the plaintiff had established the bonafide personal necessity for the suit shop and in consequence he decreed the suit for ejectment. He further directed that the plaintiff shall be entitled to receive Rs. 25/- per month as mesne profits from the defendant till the delivery of possession. , I may pause here to say that the plaintiff closed his evidence on 17-10-68. On 7-1-69 the case was fixed for the defendant's evidence, but on that date no witness was present and accordingly the case was adjourned to 11-3-69. On the last mentioned date the defendant examined himself and he produced two witnesses and then closed his evidence. The case was then adjourned to 18th April, 1969, for arguments. On 4-4-69 the defendant made an application under sec. 151, C. P. C. He stated therein that there were talks between the plaintiff and the defendant that the defendant should increase the rent to Rs. 60/- per month and the plaintiff would then withdraw his suit. The parties then fixed up a second talk for the following day at 9 a. m. for finalising the matter. Expecting that the plaintiff would come to his shop, the defendant arranged for a tape recorder from one Shyam of Lakhan Kotri, Ajmer. As per plan the plaintiff visited the defendant's shop at about 9 A. M. and then whatever talk had taken place between the plaintiff and the defendant, was recorded on tape. It was also stated that one Dhallumal had also joined in the talk and his utterance too had gone on the tape. It was asserted in the application that it was clearly stated by the plaintiff that the rent of the shop be increased to Rs. 60/- a month. It was also averred that the plaintiff had also admitted that he had been increasing the rent of his another tenant Chanomal. Accordingly it was prayed that an opportunity be afforded to the defendant to lead additional evidence of tape recording and the oral evidence regarding conversation that was taped. The application was supported by an affidavit of the defendant. The plaintiff opposed the prayer for additional evidence. The plaintiff averred that the application was mala fide and the so called tape was manipulated, fabricated and was accordingly denied. It was further pleaded that this case was not put in the pleadings or the issue and, therefore, it would prejudice the plaintiff if any additional evidence were taken. By his order dated 13-5-69 the learned Munsif dismissed the application saying that the application was not maintainable under sec. 151, C. P. C. Then a second application was made by the defendant and it met the same fate. Eventually the suit was decreed by the learned Munsiff. Against the decree of the learned Munsif, the plaintiff went up in appeal to the Court of District Judge, Ajmer, who assigned the appeal for disposal to the learned Additional Civil Judge, Ajmer. During the course of the hearing of the appeal before the learned Addl. Civil Judge an application under O. 41 r. 27, CPC, was made by the defendant-appellant for taking additional evidence which had been wrongly refused by the trial court. The learned appellate Judge observed that the discretion exercised by the trial court was perfectly justified. He went on to say that without the necessary pleadings the evidence cannot be allowed to be adduced, as it was a settled principle of law that no amount of evidence can be led on the point which has not been pleaded in the pleadings. The learned appellate Judge pointed out that the defendant had not sought any amendment of his written statement regarding this Addl. evidence. As regards the subsequent application dated 21-7-69 made before the trial Court the learned Judge observed that it purported to be under O. 18 r. 17, C. P. C. read with sec. 151, C. P. C, but according to the learned Judge the application did not fall within the scope of O. 18 r. 17, C. P. C. as this rule does not permit a party to produce any additional evidence. The learned appellate Judge then considered whatever evidence was on the record and affirmed the findings of the trial court about the bona fide personal necessity of the landlord for the suit premises. In the result, the learned Judge dismissed the appeal. In assailing the decree of the learned Additional Civil Judge, learned counsel for the appellant has raised a two fold contention. In the first place he submitted that the courts below were in serious error in not permitting the defendant to lead evidence regarding the subsequent talk between the parties, by producing the tape record as also the witnesses relating to the conversation that was so recorded on tape. This additional evidence, according to the defendant-appellant, went to show that the plaintiff had no bona fide reasonable necessity for suit premises, but he had an oblique motive of only getting more rent for the shop. Then further it was submitted that even according to the evidence already on record, the bona fide personal necessity of the plaintiff for the suit premises was not established. During the course of the hearing an affidavit was filed on 12-4-73 to the effect that Gheesulal, who was employed as a clerk in the Bank of Rajasthan Ltd. Ajmer Branch had left his service an year back and had been recently allotted a fair price shop by the District Supply Officer by his order dated 21st February, 1973. This affidavit was made with a view to having it on record as additional evidence for showing that the plaintiff's son Gheesulal was no more in need of the suit premises. So far as this affidavit was concerned I indicated during the course of the hearing that I am not going to take this affidavit on record as it seeks to introduce such facts as would not necessarily have a bearing on the question whether on the date of the suit the plaintiff had any necessity for the suit premises. I may now turn to the question whether the additional evidence should have been allowed to be taken regarding the alleged tape recorded conversation between the parties. While learned counsel for the appellant endeavoured to show that such evidence could be adduced under O. 13 rule 2, C. P. C. , or for that matter under sec. 151, C. P. C. learned counsel for the respondent submitted that mode of trial of a suit having been laid down under O. 18, C. P. C. , and the defendant having closed his evidence, there was no provision which enables the Court to take additional evidence. Neither O. 13 r. 2, C. P. C. , is applicable, nor could Sec. 151, C. P. C. , be resorted to according to learned counsel. 13. So far as the admissibility of tape record statements is concerned it is now well settled that they are admissible in evidence though in appreciating such evidence certain considerations have to be kept in view. In Hopes vs. H. M. Advocate (1) a tape-recorded conversation which took place between a complainant and a blackmailer was played before the jury and sought to be put in evidence of a police officer who had listened to the conversation as it was transmitted through the loudspeaker. Objections were raised to the admissibility of the said evidence. The learned Judge overruled the objection as follows : " New techniques and new devices are the order of the day. I can't conceive, for example, of the evidence, of a ship's captain as to what he observed being turned down as inadmissible because he had used a telescope, any more than the evidence of what ah ordinary person sees with his eyes becomes incompetent because he was wearing spectacles. Of course, comments and criticisms can be made, and no doubt will be made, on the audibility or the intelligibility, or perhaps the interpretation, of the results of the use of a scientific method; but that is another matter, and that is matter of value, not of competency. The same can be said of visual observation by a witness who says he sees something; his evidence can be criticised because of his sight or because of the sort of glasses he was wearing and so on, but all these matters are matters of value and not of competency. " The above passage has been quoted with approval in a recent case of the Supreme Court reported as Rama Reddy vs. V. V. Giri (2 ). The same view had been taken in a number of earlier cases of the Supreme Court such as Pratap Sing vs. State of Punjab (3) and Yusufalli Esmail Nagree vs. State of Maharshtra (4 ).
(3.) IT will, however, be observed that this had to be done with caution. IT has been observed in R. M. Malkani vs. State of Maharashtra (5) that tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape-record. IT was observed in this case that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible u/s. 8 of the Evidence Act. IT is res gestae. IT is also comparable to a photograph of a relevant incident. IT was pointed out that when a Court permits a tape recording to be played over it is acting on real evidence if it treats the intention of the words to be relevant and genuine. The fact that tape recorded conversation can be altered is also borne in mind by the Court while admitting it in evidence. In a c case reported as R. vs. Robson (6) the learned Judge pointed out that tape recordings were admissible for the following reason (i) the court was required to do no more than satisfy itself that a prima facie case of originality had been made out, by evidence which defined and described of the recordings up to the moment of production in court and had not been disturbed on cross-examination ; in the circumstances of that case that requirement had been fulfilled; (ii) the court was satisfied, on the balance of probabilities, that the recordings were originals and authentic and their quality was adequate to enable the jury to form a fair assessment of the conversations recorded in them and should not be excluded on that account. There is thus no doubt that a tape recorded version of a conversation is evidence. The next question is whether the Court is competent to permit taking of additional evidence if subsequent to the closing of his evidence a party prays for the production of additional evidence. O. 13, R. 2 C. P. C. , to my mind, cannot be resorted to in the circumstances like the present O. 13, r. 1 C. P. C. , enjoins the parties to produce at the first hearing of the suit, all the documentary evidence of every description in the possession or power, on which they intend to rely and which has not already been filed in the Court and all documents which the court has ordered to be produced. O. 13, r. 2 C. P. C. , lays down that no documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing. This prohibitory rule has to be read in the context of forgoing rule 1. The prohibition is against such documentary evidence as was in the possession or power of any party and which should have been produced at the first hearing of the suit. The rule, therefore, does not deal with the production of any document or evidence, which did not exist on the date of the first hearing, but came into existence later. ;