Naveen Jindal v. Zee Media Corporation Ltd. and Ors. - (High Court of Delhi) (08 May 2017)

Court may direct party to suit, in possession of a document, to produce the same during pendency of suit

MANU/DE/1259/2017

Civil

Present chamber appeal has been preferred by Defendants against order passed by Joint Registrar (Judicial), whereby Plaintiff's application under Section 30 and Order XI Rule 14 of Code of Civil Procedure, 1908 (CPC) for direction to Defendants to produce documents that is originals of telecasted programme and news article published in DNA within their power, control and possession has been allowed, and Defendants have been directed to produce on oath the documents. Defendant submitted that, onus to prove defamation lies upon Plaintiff.

As per Order XI Rule 14 of CPC, a party to suit, who is in possession or power of a document, may be directed by Court during pendency of suit to produce same. It is not any or every document that, a party may be called upon to produce from his power or possession. Document should be one "relating to any matter in question in the suit, as Court shall think right”. Document of which Plaintiff seeks production, namely original recording of impugned telecast, and original publication of impugned article would, obviously, be in power and possession of Defendants, since Defendants are authors of said works, and they have been telecast/published by Defendants. There cannot be any dispute that, telecasted programme and published news article relate to matters in question in suit. In fact, entire suit revolves around said telecasted programme/publication. There is no dispute about factum of impugned telecast being made, or impugned article being published by respective Defendants. Plaintiff has produced transcript of programme as telecasted. Copy of telecasted programme as well as copy of publication made by Defendant No. 2, even if, produced by Plaintiff, shall constitute secondary evidence. Plaintiff is obliged to cause production of best evidence and only in case the original is not produced, or is not capable of being produced, plaintiff may lead its copy in evidence as secondary evidence.

It is not case of Defendants/Appellants that, 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 hands of opposite party, who is his competitor. In present case, Plaintiff averred in plaint with regard to telecast by Defendant No. 1 on its TV channel the impugned programme on 13th January, 2015 and publication of news article by Defendant No. 2 in its newspaper on 09th January, 2015. So far as telecast of programme and publication of news article in question are concerned, there is no dispute as said facts have not been denied by Defendants. Therefore, there is no need for Plaintiff to lead evidence with regard to fact that, said telecast/publication had indeed taken place. As to what was the telecast and publication made by respective Defendants, Plaintiff is indeed obliged to lead evidence. But that primary evidence is in power and possession of respective Defendants. Nature of said evidence is documentary. Since, original documents are in power and possession of Defendant, Plaintiff has sought production of the same.

Section 65 of Evidence Act, 1872 provides that, in cases falling in clause (a), secondary evidence of contents of document is admissible. Thus, by requiring Defendants to produce said documentary evidence in original, Plaintiff has merely sought to put in action procedure for leading in evidence content of telecasted programme and newspaper publication made by Defendant Nos. 1 & 2, since Plaintiff is not possessed of primary evidence. Step taken by Plaintiff to seek production of aforesaid documents is a step towards discharge of said obligation by Plaintiff in light of Sections 61 to 65 of Indian Evidence Act, 1872.

Plaintiff by resort to Order XI Rule 14 of CPC is seeking to adopt procedure so as to be able to, eventually, lead secondary evidence, if the need therefore arises. Court rejected Defendant's application under Order XI Rules 12 & 14 of CPC since, Defendant by said application sought production by Plaintiff of records of Plaintiff's bank accounts as well as those of his family members. Court rejected application by holding that, documents sought from Plaintiff are nothing but in nature of fishing and roving inquiry. Court further observed that, it is for Applicant/Defendant No. 1 to adduce evidence of accounts from which monies are alleged to have flowed to Plaintiff and to his family members instead of finding out from bank accounts of Plaintiff and his family members whether they have received any money. In present case, factum of telecast and publication of the offending programme and news article is not in dispute and originals of these documents are in power and possession of respective Defendants. Steps taken by Plaintiff by invoking Order XI Rule 18 of CPC are entirely in accord with prescribed procedure. Appeal dismissed.

Tags : DOCUMENTS PRODUCTION DIRECTION