When court Should ask to disclose of electronic evidence of party’s own case.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Dated: 08.05.2017
CS(OS) 143/2015

NAVEEN JINDAL
Vs
M/S ZEE MEDIA CORPORATION LTD

CORAM:HON’BLE MR. JUSTICE VIPIN SANGHI

1. This chamber appeal has been preferred by the defendants against the order dated 08.03.2017 passed by the learned Joint Registrar (Judicial), whereby the plaintiff’s application I.A. No.15646/2016 under Section 30 and Order XI Rule 14 CPC for direction to the defendants to produce documents within their power, control and possession has been allowed, and the defendants have been directed to produce on oath the following documents:

(i) News program dated 13.01.2015 aired by the Defendant No.1, for a duration of 1 hours and 50 minutes approximately (as detailed in para 25 of the plaint); and

(ii) The article published by defendant no.2 dated 09.01.2015 titled as

“Chhattisgarh High Court directs police to file rape complaint against
Naveen Jindal, Associate” (as detailed in para 26 of the plaint)

2. The plaintiff has filed the present suit to seek the relief of permanent, prohibitory and mandatory injunction and damages against the defendants on the premise that the defendants have aired and published certain mala fide, malicious and vindictive news articles on the TV channels and newspaper owned and managed by them which, according to the plaintiff, are highly defamatory of the name and reputation of the plaintiff. The plaintiff states that the defendant No.1 aired the programme on 13.01.2015 for a duration of 1 hour and 50 minutes approximately on its television channel, which according to the plaintiff, is distorted and highly defamatory. In addition, defendant No.2/ DNA which is owned by Zee Media published the article on 09.01.2016 “Chhattisgarh High Court directs Police to file rape complaint against Navin Jindal Associate” which too is stated to be highly defamatory and distorted.

3. Along with the suit, the plaintiff also moved an interim application being I.A. No. 1070/2015 to seek an interim injunction against the defendants telecasting the said programme, or publishing the said news article. That application was disposed of by this Court vide order dated 05.03.2015. The operative part of the order dated 05.03.2015 reads as follows:

49. In these facts would the plaintiff be entitled to an injunction
to restrain the defendants from publishing reports or airing
reports pertaining to the allegations which are pending before
the police by Mrs. ABC. Legal position as explained above is
quite clear. Any publication which gives excessive adverse
publicity to an accused or which is likely to hamper fair trial
and constitutes an interference with the course of justice could
be a ground for grant of injunction. The court has ample
inherent power to restrain publication in media in the event it
arrives at a finding that the said publication may result in
interference with the administration of justice or would be
against the principle of fair trial or open justice.

50. The balance of convenience is in favour of the plaintiff.
Serious prejudice will be caused to plaintiff in case injunction
is not granted. Accordingly, the defendants 1 and 2, their
associates are restrained by an order of injunction from
publishing any article or right-ups or telecasting programmes
on the allegations against the plaintiff as made by Mrs. ABC
either in the complaint or before the police, till the time the
police completes its enquiry and, if necessary, investigation and
files an appropriate report/document before the court. The
injunction passed is of a temporary nature and is applicable
only till the police completes its preliminary enquiry or any
other investigation if required that may be done at a later stage.
However, the defendants are free to report about the court
cases or about the final conclusion of the police in the course of
preliminary enquiry covered under the ambit of fair reporting
on the basis of true, correct and verified information. The
application stands disposed of.

4. The defendants have filed their detailed written statement. In response to the specific averments made in paragraph 25 of the plaint by the plaintiff to the effect that the impugned programme was aired by defendant No.1 on 13.01.2015 for 1 hour and 50 minutes approximately, and the averment of the plaintiff made in paragraph 26 of the plaint – in relation to the publication of the article made by DNA on 09.01.2015, the defendants have not denied the factum of the said telecast and publication. The defendants have, however, denied that the said telecast and publication was not accurate, was distorted, or that the same were defamatory.

5. The issues have been framed in the suit and the defendants have not claimed any issue of fact with regard to the telecast of the programme in question, and the publication of the article in question by the two defendants. However, issues have been claimed and, accordingly, framed on the aspect of the said telecast and publication being defamatory.

6. The plaintiff moved the aforesaid application under Order 11 Rule 14 CPC to direct production of the original news programme telecast by defendant No. 1 on 13.01.2015, and the article published by defendant No.2 in DNA on 09.01.2015 on the premise that the originals of the said telecasted programme and the news article published in DNA are in the power and custody of the respective defendants. The application was opposed by the defendants. The learned Joint Registrar has, while allowing the application, given the following reasons in his impugned order:

“9. A reading of Order 11 Rule 14 CPC would show that the
court can direct any party to produce documents at any stage
during the pendency of the suit, if such documents are relevant
to the matter in controversy and the same are necessary for
fairly disposing of the suit or for saving the cost. In M.L. Sethi
v. R.P. Kumar, AIR 1972 Supreme Court 2379, it was observed
that the court is clearly empowered and it shall be lawful for it
to order the production, by any party to the suit, such
documents in his possession or power relate to any matter in
question in the suit provided the court shall think right that the
production of the document are necessary to decide the matter
in question. The court also has been given a power to deal with
the documents, when produce in such manner as shall appear
just. Therefore, the power to order production of documents is
couple with the discretion to examine the expediency, justness
and the relevancy of the documents to the matter in question.
These are relevant questions, which the court shall have to
advert to and weigh before deciding to summoning the
documents. It has also been held that admissibility of the
documents is not a relevant consideration while deciding
whether to direct the discovery.

10. The purpose and object behind these provisions clearly
shows that the object is to shorten the litigation at the initial
stage before the trial. In the present case, defendants have not
denied the fact that news programme dated 13.01.2015 was
telecast by defendant no.1 and article dated 09.01.2015 was
published by defendant no.2. The defendants have denied the
news programme and were defamatory in nature. The entire
case filed by the plaintiff revolves around these two
programmes. Defendants must be in possession of the original
documents (Master C.D.) of the news programme dated
13.01.2015 and the article published on 09.01.2015. The
litigation can be cut short if the defendants are directed to
produce these documents on oath. Merely, because plaintiff
has not filed the CD of the news programme dated 13.01.2015
and has only filed the transcript cannot be made a ground for
denying the application filed by the plaintiff. The purpose of
recording evidence is to arrive at the truth and not it is
irrelevant as to who has produced the original documents. The
authenticity of transcript and the copy of the article filed by the
plaintiff can very well be adjudicated if the defendants produce
the original records i.e. the Master C.D. of the programme
dated 13.01.2015 and the original publication dated
09.01.2015.

11. Hence, in my considered opinion, the application filed by
the plaintiff deserves to be allowed and the same is accordingly
allowed. Defendants are directed to produce on oath the
documents mentioned in prayer para of the application within
four weeks from today”.

7. Since the plaintiffs have appeared and advanced their submissions, I have heard learned Senior Counsels on both sides in the present Chamber Appeal.

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8. The submission of Mrs. Pratibha Singh, learned senior sounsel for the defendants/appellants is that the onus to prove the defamation lies upon the plaintiff. It is for the plaintiff to produce the so-called defamatory telecast and publication. She submits that the plaintiff has placed on record, what are claimed to be, the transcripts of the telecasted programme. It is the plaintiff who should produce his copy of the recording/CD of the programme, and also place on record the affidavits of the persons who have prepared the recording and the transcripts in accordance with Section 65B of the Evidence Act. She submits that the defendants cannot be called upon to produce evidence which may be used by the plaintiff against the defendants. She further submits that in case the plaintiff is not possessed of the video recording of the telecasted programme, then also he should file an affidavit to this effect, and should disclose as to how the transcripts were prepared – and by whom. Only thereafter the defendant may be called upon to produce the copy of the telecasted programme. In support of her submissions, she has placed reliance on:

i) Sadhu Ram – Bali Ram v. Ghandham Dass-Madan Lal, Civil Rev. No.688/1971 decided on 17.10.1973
ii) Prakash Vishwasrao Kohok v. State of Maharashtra, Crl. A No.177 of 1993 decided on 22.04.1996;
iii) Golla Jayamma Ors. V. District Collector Ors., W.P. No.9616, 9622 9676/2007 decided on 17.10.2008; iv) Arun Jaitley Vs. Arvind Kejriwal (supra) passed by this Court in

9. On the other hand, Mr. Malhotra, learned senior counsel for the plaintiff has submitted that since the original recording/ publication are in power and possession of the two defendants, and the said defendants have not denied the factum of the telecast of the television programme and publication of the news article, the plaintiff is entitled to seek discovery and production of the said documents from defendants by resort to Order 11 Rule 14 CPC. In support of his submission, he has placed reliance on the judgment in M.L.Sethi (supra) which is also relied upon and explained by a Division Bench of this Court in M. Sivasami v. Vestergaard Frandsen A/S Ors., 2010 I AD (Delhi) 211.

10. Order XI Rule 14 CPC reads as follows:

“14. Production of documents.- It shall be lawful for the court,
at any time during the pendency of any suit, to Order the
production by any party thereto, upon oath, of such of the
documents in his possession or power, relating to any matter in
question in such suit, as the court shall think right; and the
court may deal with such documents, when produced, in such
manner as shall appear just.”

11. A plain and grammatical meaning of the said rule is that a party to the suit, who is in possession or power of a document, may be directed by the Court during the pendency of the suit to produce the same. It is not any or every document that a party may be called upon to produce from his power or possession. The document should be one “relating to any matter in question in the suit, as the Court shall think right;”. The document of which the plaintiff seeks production, namely the original recording of the impugned telecast, and the original publication of the impugned article would, obviously, be in the power and possession of the defendants since the defendants are the authors of the said works, and they have been telecast/ published by the defendants. There cannot be any dispute that the telecasted programme and the published news article relate to matters in question in the suit. In fact, the entire suit revolves around the said telecasted programme/ publication. As noticed hereinabove, there is no dispute about the factum of the impugned telecast being made, or the impugned article being published by the respective defendants. The plaintiff has produced the transcript of the programme as telecasted. The copy of the telecasted programme as well as the copy of the publication made by defendant No.2- even if produced by the plaintiff, shall constitute secondary evidence. The plaintiff is obliged to cause the production of the best evidence and only in case the original is not produced, or is not capable of being produced, the plaintiff may lead its copy in evidence as secondary evidence.

12. The submission of Ms. Singh that the plaintiff should first produce its own version of the video recording of the telecast, before calling upon the defendant No.1 to do so, has no merit. This is for the reason that it is not necessary that the plaintiff may even be possessed of a copy of the video recording. As aforesaid, the production of the said copy – even if possessed by the plaintiff, would not suffice as that would not be the best evidence which the plaintiff is obliged to lead. So far as the obligation of the plaintiff to prove the transcripts of the telecasted programme is concerned, it is for the plaintiff to take steps in that regard, and if the plaintiff fails to do so, the plaintiff shall take its consequences. The defendant cannot insist that the plaintiff should produce its copy of the telecasted programme; that the plaintiff should state on oath if he is not possessed of the video recording of the telecasted programme; the plaintiff should lead in evidence the person who has prepared the transcript of the telecast and the plaintiff should also lead in evidence a certificate under Section 65B of the Evidence Act. It is no concern of the defendants as to how the plaintiff wishes to pursue its case.

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13. This Court in M. Sivasami (supra) has culled out the purpose sought to be achieved by resort to a proceeding under Order XI Rule 14 CPC. The Division Bench in paragraph 7 of this decision, inter alia, observed:

“7. … … … A reading of the aforesaid provisions of Order 11 Rules 12 and 14 bring out certain salient features as under:
(i) The documents sought to be discovered and produced have to be relevant to the matter in controversy viz matters in question.
(ii) The documents have to be in the possession and power of the person against whom discovery and production is sought.
(iii) Discovery and production of the documents which are sought for are necessary at that stage of the suit;
(iv) The discovery and production is necessary for fairly disposing of the suit or for saving costs.
(v) The discovery and production may be general or limited to certain classes of documents as the Court in its discretion deems fit and the production will only be ordered if the Court considers it just.”

14. In M.L.Sethi (supra), the Supreme Court, inter alia, observed in relation to the procedural scheme contained in Order XI CPC:

“that the rules of procedure envisaged under Order 11 of the
Code and the rules of evidence contained in Chapter 10 of the
Act operate in different spheres. They may appear to be
analogous in certain areas, but the purpose or object behind
these provisions would clearly tell us that the former rules are
meant to shorten the litigation at the initial stage before the
trial and the latter rules of evidence are meant to discover the
truth at the stage of trial or giving evidence. Not only that
discovery of facts or discovery of documents can be allowed
only with the leave of the court, discovery by means of
interrogatories can be objected on the ground that it is
scandalous, Irrelevant, mala fide and on the ground of
privilege. The answer to the interrogatory shall be by means of
an affidavit. Similarly, discovery of documents can be objected
on the ground of legal or professional privilege; that they may
tend to criminate a party or expose him to forfeiture; that they
are protected by public policy; that they are not in the sole
possession of the party; that they solely relate to the case of the
party; that they are in the possession of the party as an agent or
a representative of another; and that they disclose evidence of
party’s own case.”.

15. It is not the case of the defendants/ appellants that the plaintiff is seeking production of documents which are confidential in nature or have  proprietary information belonging exclusively to one party, which information such party is entitled to protect from coming into the hands of the opposite party, who is his competitor.

16. I may observe that during the course of her submissions Ms. Singh has argued that the transcript of the impugned programme which was telecasted by defendant No.1 is not a correct one. It is claimed that the plaintiff has deliberately omitted vital parts of the said programme while filing the transcripts. The simplest and the straightforward way to cut-short that controversy is to direct the defendants to produce the original of the telecasted programme as well as the publication made in the newspaper DNA. Such a direction to the defendants would certainly lead to cutting short the scope of the trial which would, in turn, lead to expeditious disposal of the suit and also save costs.

17. Reliance placed on Sadhu Ram – Bali Ram (supra) by Ms. Singh is misplaced. In this decision, the Court was concerned with the aspect of placing of onus of proving an issue on one or the other party. In that context, the Court held that when the plaintiff alleges existence of certain facts on which he bases his claim, an obligation is cast upon him to prove the existence of those facts, and it is he who leads evidence to prove the alleged facts and thereafter it would be for the other party to lead evidence in rebuttal.

18. There can be no doubt that the onus to prove his case falls upon the plaintiff. However, facts which are not in dispute and about which no issue have been claimed, or framed, and which are admitted facts, no evidence is required to be lead by either of the parties.

19. In the present case, the plaintiff averred in the plaint with regard to the telecast by defendant No.1 on its TV channel the impugned programme on 13.01.2015 and the publication of the news article by defendant No.2 in its newspaper on 09.01.2015. So far as the telecast of the programme and the publication of the news article in question are concerned, there is no dispute as the said facts have not been denied by the defendants. Therefore, there is no need for the plaintiff to lead evidence with regard to the fact that the said telecast/ publication had indeed taken place. As to what was the telecast and publication made by the respective defendants, the plaintiff is indeed obliged to lead evidence. But that primary evidence is in power and possession of the respective defendants. The nature of the said evidence is documentary. The plaintiff is obliged to prove the fact of what the content of the telecast/ publication was by leading the original document. Since the original documents are in the power and possession of the defendant, the plaintiff has sought the production of the same.

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20. Chapter-5 of the Evidence Act deals with documentary evidence. The contents of documents may be proved either by primary or by secondary evidence (see Section 61). Primary evidence means the document itself produced for the inspection of the Court (see Section 62). Secondary evidence means and includes, inter alia, copies made from the original by mechanical processes which, in themselves, insure the accuracy of the copy, and copies compared with such copies (see Section 63(2)). Section 64 of the Evidence Act mandates that documents must be proved by primary evidence, except in the cases mentioned in Section 65. Section 65(a) is pertinent and the same reads as follows:

“65. Cases in which secondary evidence relating to documents may be given. … … …
(a) When the original is shown or appears to be in the
possession or power— of the person against whom the
document is sought to be proved, or of any person out of reach
of, or not subject to, the process of the Court, or of any person
legally bound to produce it, and when, after the notice
mentioned in section 66, such person does not produce it;”

21. Section 65 further provides that, inter alia, in cases falling in clause (a), secondary evidence of the contents of the document is admissible. Thus, by requiring the defendants to produce the said documentary evidence in original, the plaintiff has merely sought to put in action the procedure for leading in evidence the content of the telecasted programme and the newspaper publication made by defendants No.1 2, since the plaintiff is not possessed of the primary evidence.

22. In Sadhu Ram – Bali Ram (supra), the Punjab Haryana High Court in paragraph 8 took notice of Section 101 to 103 of the Indian Evidence Act while dealing with the issue as to on which party the onus to prove a particular issue should be placed. However, in the facts of the present case that is not the dispute raised in the present appeal. The issues have already been cast and the onus to prove that the programme telecast and publication made by the two defendants is defamatory has been placed on the plaintiff.

23. For the same reason, reliance placed on paragraph 49 of Prakash Vishwasrao Kohok (supra) appears to be completely misplaced. In this decision, the Court observed that the onus to prove a fact is on the party who asserts the same. As noticed above, there can be no quarrel with this proposition. The step taken by the plaintiff to seek production of the aforesaid documents is a step towards discharge of the said obligation by the plaintiff in the light of the Section 61 to 65 of the Indian Evidence Act.

24. Reliance placed on Golla Jayamma (supra) is misplaced. Ms. Singh has placed reliance on certain observations made in paragraph 24 of this decision. The said paragraph reads as follows:

“24. Secondly, identifying the actual cause of action would
also have a bearing on the burden of proof. It is well known
that cause of action is a bundle of facts, to be pleaded by the
plaintiff, as the basis for grant of relief. It must be recognized
that in a cause or litigation, not only the plaintiff but also the
defendant has the knowledge of several facts. However, it is
always for the plaintiff to prove the facts, which are necessary
to constitute the basis for grant of the relief in his favour. The
mere fact that the defendant is also aware of some of the facts,
cannot bring about a situation, of requiring him to prove
those facts. The reason is that if the plaintiff fails to prove such
facts, he would fail and Section 102 of the Act gets attracted. It
is only when the facts constituting the cause of action are
proved or when they are not denied, that the defendant would
be under obligation to prove the facts pleaded by him, to avoid
the possibility of becoming a judgment debtor.”

(emphasis supplied)

25. Ms. Singh has argued that merely because the defendants are possessed of the original recording of the telecast and the original of the publication made in the newspaper, the plaintiff’s obligation to prove the contents of the said telecast/ publication is not taken away. I do not find any force in this argument of Ms. Singh for the reason that, as aforesaid, the plaintiff by resort to Order XI Rule 14, is seeking to adopt the procedure so as to be able to, eventually, lead secondary evidence if the need therefor arises.

26. Reliance placed on Arun Jaitley (supra) is also misplaced. The Court rejected the defendant’s application under Order XI Rules 12 14 CPC since the defendant by the said application sought production by the plaintiff of the records of the plaintiff’s bank accounts as well as those of his family members. The Court rejected the application by holding that the documents sought from the plaintiff are nothing but in the nature of fishing and roving inquiry. The Court further observed that it is for the applicant/ defendant No.1 to adduce evidence of the accounts from which monies are alleged to have flowed to plaintiff and to his family members instead of finding out from the bank accounts of the plaintiff and his family members whether they have received any money. As noticed above, in the present case, the factum of telecast and publication of the offending programme and news article is not in dispute and the originals of these documents are in power and possession of the respective defendants. The steps taken by the plaintiff by invoking Order XI Rule 18 CPC are entirely in accord with the prescribed procedure.

27. For all the aforesaid reasons, the appeal is dismissed with costs quantified at Rs.25,000/-. The costs be paid within four weeks.

(VIPIN SANGHI)
JUDGE
MAY 08, 2017

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