Dr. Bharat Bhushan Parsoon, J.

1. A petition for ejectment of the contesting respondent is pending adjudication before the Rent Controller. After conclusion of evidence by the petitioner-landlord, when the petition was pending for recording of evidence by the respondent-landlord, he moved an application for taking specimen samples of the voice of petitioner Mohinder Singh and proforma-respondent Popinder Singh so that their voice could be compared with the voice recorded in the CD on the basis of memory card recorded through mobile phone wherein petitioner Mohinder Singh has allegedly conceded for continuance of tenancy of the respondent on enhancement of rent.

2. Notwithstanding contest being made by the petitioner and proforma-respondents to such application, vide impugned order of 9.2.2012 (Annexure P-6), this application of the contesting-respondent/tenant was allowed.

3. Impugning the said order, it is claimed that once CD is already on record allegedly containing conversation of petitioner Mohinder Singh and proforma-respondent Popinder Singh on one side and of tenant Baljit Singh on the other hand, comparison with voice samples is not permissible. It is also claimed that the Rent Controller was to give a finding of relevance of contents of CD and was to proceed only thereafter with regard to comparison of voices of the persons, record of conversation of whom,the CD was allegedly having. It is claimed that the Rent Controller exceeded its jurisdiction in passing the impugned order and has failed to appreciate that the contesting respondent is adopting delaying tactics to prolong the litigation as he is enjoying the possession of the rented premises whereas the landlords have bonafide personal necessity.

4. Plea of the respondent-tenant, on the other hand, is that since the bringing of CD on record of the Rent Controller and leading of evidence by the tenant was permitted vide order of 30.5.2009 of this Court, to establish veracity of conversation of landlord and tenant digitally stored in the CD, comparison of voice sample with the voice of conversationists in the CD was necessary. Thus, validity and legality of the impugned order has been asserted.

5. Hearing has been provided.

6. To appreciate the controversy between the parties, it would be appropriate to take into account important aspects of the case. When the rent petition was pending for evidence of the respondent-tenant, an application was moved by the tenant seeking directions to the petitioner-landlord to admit conversation between the petitioner-landlords and the respondent tenant which was allegedly recorded by the tenant during the telephonic conversation as also during various meetings held between them to amicably settle the matter. By way of proving conversation between the landlords and tenant, wherein the landlords had allegedly agreed to proposal of the tenant to increase the rent, it was sought to be established that the petition, interalia, filed on the ground of bonafide requirement and personal necessity, in fact, was perverse and false and had been filed with the sole motive to get the tenanted premises vacated to let those out at enhanced rent. This application alongwith CD allegedly containing conversation between the parties produced before the Rent Controller was dismissedon 20.2.2009. Revision against this order preferred by the tenant was also dismissed.

7. While dismissing the revision petition, a coordinate Bench of this Court had made the following observations on 30.5.2009:

Even without reference to Section 23 of the Evidence Act, I am of the view that it was premature for a tenant to demand of a landlord to make a statement whether such a conversation took place or not. It was open to him to suggest in the cross-examination of also called conversation and if it was denied, use such denial as an occasion to bring his own substantive evidence at the time when it was his turn for examination and giving evidence in Court. It might be possible at such a time to bring support to his evidence, which might include a transcript of the conversation and proof that such conversation had been indeed recorded digitally or in some other electronic form to lend credibility to his evidence by producing the device that has stored the conversation. While still not deciding on the admissibility of such evidence, which the Court might undertake at the appropriate time, I do not see an occasion to interfere with the ultimate order of dismissal. The civil revision petition is, therefore, dismissed giving however, a liberty for the tenant to give such evidence as indicated above.

8. This observation is being resorted to by both the parties to sustain and support their rival claims. The petitioner claims that the respondents without following the course of action suggested to them by the observation made by this Court, had filed an application for taking voice samples of the conversationists for comparison to fix authorship of such conversation as is digitally stored in compact disk (CD). It is also claimed further that even the court on its part did not follow the course of action clearly ordained in these observations.

9. Respondents, on the other hand, claim that following the observation of this Court in letter and spirit, the application was moved by them to the court seeking directions for obtaining voice samples of conversationists Mohinder Singh and Popinder Singh which was rightly allowed.

10. Before rival claims of the parties are adjudicated, it would be appropriate to take stock of the attending facts and circumstances. A petition No.287 preferred under the Act on 24.2.2007 for eviction of tenant Baljit Singh (respondent herein) on the ground of personal necessity is pending adjudication before the Rent Controller, Chandigarh. When petitioner Mohinder Singh was being examined as his witness and his crossexamination was in progress, an application was moved by the tenant seeking directions to petitioner Mohinder Singh (PW1) and his son Popinder Singh (PW2) to admit conversation between the petitioner-landlords and the tenant which allegedly had been recorded by the tenant during the telephonic conversation and during various other meetings. As has already been noticed, said application was dismissed by the Rent Controller as also by this Court in revisional jurisdiction. The observations of this Court made in order of 30.5.2009 had apparently ended the controversy but only for the time being. Later, during the proceedings on application moved by the tenant for taking voice samples of the conversationist, the application was allowed which order (Annexure P-6) is now under challenge in this petition.

11. As has been noticed, both the parties take shelter in observations of this Court in support of their rival claims.

12. Going by the milestones on the path suggested by this Court to be travelled by the tenant, he was to cross these stop overs on the said suggested path: Course of action suggested for the tenant:

(1) He was to suggest in cross-examination of landlords about the alleged fact of conversation as also its details;

(2) In case of denial offered by the landlords, the tenant was to use such denial as an occasion to bring his own substantive evidence on his term;

(3) On production of his substantive evidence, in support thereof, he could have added transcript of the conversation;

(4) He was also to add proof that such conversation had indeed been recorded digitally or in some electronic form;

(5) To lend credibility to his such evidence, he could produce the device that had stored the conversation; and,

(6) This Court had also suggested the course of action to be adopted in this regard.

Course of action suggested for the Rent Controller:

1. The Rent Controller was to undertake an exercise to decide admissibility of such evidence at an appropriate time; and,

2. then the Rent Controller was to render a decision on admissibility of such evidence as well.

13. So far as tenant is concerned, nothing was shown to the Rent Controller whether during their cross-examination, the landlordsconversationists had been questioned qua the alleged conversation stored in the CD or not and if so, what was their response on that count. It is also not made clear by the tenant that he has produced his substantive evidence and thereafter, has produced the transcript of conversation as well. The tenant has also not rendered any proof that such conversation had indeed been recorded digitally or in the form of CD.

14. The Rent Controller on its part has also not given a finding that this course of action suggested for the tenant in the order of this Court of 30.5.2009 has duly been followed and completed. In addition, the Rent Controller on its part was also required to determine admissibility of such evidence to proceed further with the matter.

15. Relevance, admissibility and probative value of any evidence are different aspects; these all are important in their respective fields. Relevance and admissibility are closely connected and would precede in point of time than determination of probative value of such evidence is pronounced. Neither relevance nor admissibility of evidence can be postponed to be decided at convenience by the court.

16. Before receiving any evidence during the exercise being undertaken by a party to prove his claim in the pleadings, its relevance to the points in issue as also admissibility in terms of provisions of the Indian Evidence Act, 1872 (for short, the Evidence Act) have necessarily to proceed before such evidence is taken on record. Bringing of facts and circumstances on record as evidence without deciding questions of relevance and of admissibility, would not be proper. This aspect has to be determined by the lower court in the interface of facts and circumstances, in which suchconversation is alleged to have taken place between the landlords on the one side and the tenant on the other.

17. It is own case of the tenant that during the course of negotiations being pursued on phone as also in various meetings, same breakthrough had become available to the effect that the landlord wanted to enhance the rent and was interested to withdraw the petition. If such negotiations failed and did not result into anything concrete, how much such exchange of view done during the course of negotiations would be relevant and admissible in evidence, is an exercise to be undertaken by the Rent Controller.

18. Counsel for the petitioner, however, has made reference to Section 23 of the Evidence Act which provision for ready reference is appended as below:

23. Admissions in civil cases, when relevant.In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given. Explanation.Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under section 126.

19. Counsel for the petitioner has further made reference to Shibcharan Das Versus (Firm) Gulabchand Chhotey Lal AIR 1936 Allahabad 157 wherein it was held as under:

Where negotiations are being conducted with a view to settlement it should be held that these negotiations are being conducted without prejudice. In such circumstances it is not open for one of the parties to give evidence of an admission made by another. If negotiations are to result in a settlement each side must give away a certain amount. If one of the parties offers to take something less than what he later claims he is legally entitled to, such offer must not be used against him; otherwise persons could not make offers during negotiations with a view to a settlement.

20. This Court in Smt. Surjit Kaur Versus Gurcharan Singh AIR 1973 Punjab and Haryana 18 had also held as under:

A perusal of this section would show that if an admission is made upon an express condition that evidence regarding it would not be given or under circumstances from which the court could infer that the parties had agreed that the evidence regarding it would not be given, then such an admission would not be relevant. In the case parties were trying to affect a compromise and during that interval, the said letter was written by the husband. It may be stated that the husband has frankly admitted that he did write that letter, but he claimed privilege regarding the same on the ground that it was written when the talks of a compromise were going on between the parties. It appears from the circumstances of the case that he had written this letter perhaps at the instance of the wife, because she might be ready to go back to the husband but her father may not be giving her permission to do so, and it is quite possible that he wrote that letter just to prevail up, her father to send her back to him. Equally probable is that the father might have asked the husband to write such a letter, so that he could show it to his daughter and on it basis persuade her to back after telling her that the husband had admitted his fault and apologized for the same.

x x x

In any case this letter, admittedly, was written during the period when the compromise talks were going on. The interference drawn by the learned judge from all these circumstances was that the letter was written at a time when the parties had agreed that no evidence would be given regarding it. That being so, the case will be covered by the second condition laid down in Section 23, quote above, and as such the husband could claim privilege regarding the same. It has been ruled in a Bench decision of the Allahabad High Court in Shibcharan Das V. Firm Gulabchand Chhotey Lal AIR 1936 ALL 157 that where negotiations were being conducted with a view to a settlement, it should be held that those negotiations were so conducted without prejudice.

21. Almost to the same effect are the observations made in Sri Bauribandhu Mohanty and another Versus Sri Suresh Chandra Mohanty and others AIR 1992 Orissa 136 wherein also AIR 1936 ALL 157 (ibid) had been cited with approval. Observations made in this verdict may also be reproduced as under:

10. The opposite parties have relied on a decision the Division Bench of the Allahabad High Court in the case of Shibcharan Das V. Firm Gulabchand Chhotey Lal AIR 1936 ALL 157, wherein the High Court has held thus (at page 158):

xx xx xx. Negotiations were being conducted with a view to settlement, and that being so, we are bound to hold that these negotiations were conducted without prejudice. In such circumstances, it is not open for one of the parties to give evidence of an admission made by another. If negotiations are to result in a settlement each side must give away a certain amount. If one of the parties offers to take something less than what he later claims he is legally entitled, such must not be used against him, otherwise could not make offers during negotiations with a view to a settlement.

22. Not only on the ground of relevance in terms of Section 23 of the Evidence Act quoted earlier, even with regard to admissibility, counsel for the petitioners has claimed that the trial court is required to adjudicate this aspect. Referring to Ram Singh and others Versus Col. Ram Singh 1985 (Supp.) SCC 611, it is urged that for determining admissibility of conversation recorded in electronic media viz. tape-recorder, following points to be noticed, had emerged:

1. The voice of the speaker must be identified by the maker of the record or other persons recognizing his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.

2. The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence; direct or circumstantial.

3. Possibility of tampering with, or erasure of any part of, the tape-recorded statement must be totally excluded.

4. The tape-recorded statement must be relevant.

5. The recorded cassette must be sealed and must be kept in safe or official custody.

6. The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances.

23. Reference has also been made to Nilesh Dinkar Paradkar Versus State of Maharashtra 2011 (3) RCR(Criminal) 533 (Supreme Court) where in para 30 thereof, it was observed as under:

30. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasized the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification. In case of Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra and others 1976 (2) SCC 17 [LQ/SC/1975/176] , this Court made the following observations:

We think that the High Court was quite right in holding that the tape-records of speeches were documents, as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:

(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subject matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.

24. No doubt, in terms of amendment introduced in Section 3-A of the Evidence Act vide enactment of the Information Technology Act, 2000 (for short the IT Act), the definition of documentary evidence has been amended to include all documents including electronic records produced for inspection by the court. The term electronic record has been given the same meaning as is assigned to it under the IT Act.

25. Even the definition of admission in Section 17 of the Evidence Act accordingly has been changed to include a statement in oral, documentary or electronic form which suggests an inference to any fact at issue or of relevance. To be specific, Section 22(a) has been inserted in the Evidence Act to provide for relevancy of the oral evidence regarding the contents of electronic records. However, it is also important to note that oral admissions regarding the contents of electronic records would not be relevant unless the genuineness of the electronic records produced is proved.

26. In terms of Section 39 of the Evidence Act, statement is part of an electronic record. For admissibility of digital evidence, resort has also to be made to Section 65-A and 65-B in relation to Section 136 of the Evidence Act. Since presumption of truth does not attach to statements caged in a CD, admissibility of this digital evidence will have to be seen in terms of Sections 65-A and 65-B of the Evidence Act.

27. Keeping in view the totality of facts and circumstances as discussed earlier, neither the tenant on his part has still traversed the path suggested to him in the observations made by this Court in order dated 30.5.2009 nor the Rent Controller has done his part. Sequelly, the impugned order is premature and thus is set aside and this petition is allowed.

28. When after traversing the course suggested to the tenant, any fresh application is moved, the same would be decided by the Rent Controller afresh. As the petition is pending before the Rent Controller since 24.2.2007 and prime pointing finger by the landlord against the tenant is that such applications are being moved by the tenant merely to delay and dilate the proceedings, the Rent Controller would finally adjudicate the petition within three months from the date of receipt of certified copy of this order.