Monday, 29 June 2020

Whether court should direct discovery and production of entire sale deed in defamation suit?

The Coordinate Bench of this court in the case of DSIIDC v. Shiv Kumar, 2013 SCC Online Delhi 3773, has held that before making an order under the provisions of Order XI, the following principles have to be considered by the Court:
(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.
13. The aforesaid principles clearly apply to the facts of this case as noted above. Further the order directing the production of document does not by itself effect any vital and valuable rights of the parties and does not decide the matter. In so far as the judgment relied upon by Mr. Sindhwani in the case of Vipul Gupta (Supra) is concerned, this court has held (1) The court has to be satisfied that the documents in question are relevant for proper adjudication of the matter involved in the suit; (2) if a party pleads ‘truth’ as a defence, then the party has to show that when the statement was made, it was on the basis of facts and circumstances in the knowledge of party, by which party was aware that the statement which the party was making was true or there was a reasonable belief based on material and information then available, that whatever being stated was true.
14. There cannot be any dispute on the propositions of law laid down in the said judgment. But in this case, the plaintiff relied upon / produced only a part of the Sale Deed and not the complete one with the site plan for the reasons best known. The Sale Deed along with site plan having been executed in the year 2005 was in existence when the interview / statement was given in the year 2018 and it is also the case of the defendant No.2 in the application for discovery and production of documents that on a perusal of the Sale Deed, more particularly Schedules annexed thereto, it is revealed that the property is measuring 4.54 acres. It is also his case that the plaintiff grabbed, much more area than 4.54 acres, of the Gaon Sabha, Village Azadpur. Therefore, defendant No.2 is imputing his knowledge to the Sale Deed and schedules annexed thereto which includes the site plan of the land. 
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: May 26, 2020
 CS(OS) 245/2018, I.As. 9856/2018,

M/S NEGOLICE INDIA LIMITED Vs  PRABHAT BHASKAR / PRABHATBHASKAR.COM

CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO

O.A. 114/2018

1. By this order, I shall decide the Chamber Appeal being OA No. 114/2018 filed by the plaintiff challenging the order of the learned Joint Registrar dated July 28, 2018 (impugned order), whereby the learned Joint Registrar has allowed the application being I.A. No. 9896/2018 filed by defendant no.2 under Order XI Rule 12 and 14 of the Code of Civil Procedure, 1908, for discovery and production of the documents by the plaintiff.
2. The facts as noted from the impugned order are that the suit has been filed by the plaintiff for declaration, permanent & mandatory injunction and damages in respect of a defamatory statement made by the defendants, that encroachment on public land has been made by the plaintiff while developing the project M2K Victoria Gardens, Azadpur, Delhi (‘Project’, for short).
3. In substance, the plea of the defendant no.2 in the written statement as well as in the application, bearing I.A. No. 9896/2019, with regard to the claim of the plaintiff, is that the plaintiff is an encroacher of land and that he has sought discovery and production of original sale deed dated June 28, 2005 (‘Sale Deed’, for short) and the site plan annexed thereto executed by the National Textile Corporation (NTC) in favour of the plaintiff and to produce the said documents. The case of the defendant no.2 / applicant in I.A. No. 9896/2019 was that there are contradictions in different documents relied upon by the plaintiff. It was also his case that the site plan annexed to the Sale Deed is relevant for the proper adjudication of the real controversy between the parties, i.e., whether the plaintiff’s Project is restricted within 4.54 acres of land or the plaintiff has grabbed / encroached upon public land. The case of the plaintiff / non-applicant in I.A. No. 9896/2018 before the learned Joint Registrar was that defendant no.2/applicant is a stranger and has no right to go into the details of the rights, title and interests regarding the plaintiff’s property. The issue of land encroachment has already been considered and decided by this Court on different occasions and copies of the orders are already placed on record. It was also the stand of the plaintiff that the land has been demarcated on different occasions by government authorities and the said demarcation reports are already placed on record. It was also the case of the plaintiff/non-applicant that defendant no.2/applicant had filed a suit bearing No. 430/2013 titled ‘Azadpur Gaon Residents Welfare Assn. v. Negolice India Ltd. and Ors.’, which was dismissed by the learned Civil Judge, North, Rohini Courts, Delhi and even the appeal was withdrawn.
4. In the impugned order, learned Joint Registrar was of the following view that: - (1) identification of the concerned land is definitely a fact in issue as the plaintiff’s case is that there is no encroachment on the public land; (2) plaintiff has placed on record a true copy of the Sale Deed in which they have mentioned various khasra numbers; (3) that the land is delineated in red colour in the site plan annexed thereto; (4) it shows that the site plan is also annexed with the Sale Deed at the time of its execution and registration; (5) the details of the Sale Deed are incomplete in the absence of the site plan; (6) the site plan has not been placed on record by the plaintiff and no just explanation is forthcoming; (7) no documents as filed are capable of obviating the need for filing the site plan; (8) the law relating to discovery and production of documents has been liberal; (9) the plaintiff having placed on record the Sale Deed, it should also bring on record the site plan annexed with the Sale Deed if the same is in its possession.
5. Mr. Sanjeev Sindhwani, learned Sr. Counsel appearing for the plaintiff / appellant would submit that the learned Joint Registrar has erred in holding that the identification of the concerned land is in fact an issue in the suit. According to him, the issue stands settled by the Division Bench of this Court in W.P.(C) No. 5305/2012 wherein the orders passed operate in rem. Vide the impugned order, the learned Joint Registrar has diluted the precedential value of the orders passed in the aforesaid writ petition. He further stated that learned Joint Registrar has also erred in holding that the description of the land has been shown differently in different documents. According to Mr. Sindhwani,
description of land is same in all the documents and the demarcation reports issued by the revenue authorities were for separate parts of the same parcel of land which altogether consist of 4.54 acres. Mr. Sindhwani further submitted that the defence set up by the defendant No. 2 / respondent has to be seen as on the day when the statement was made in the year 2018 and not by a document of which discovery is being sought now. He has relied upon the following judgments in support of his submissions:
1. Vipul Gupta and Ors. v. Robin Gupta and Ors., (2017) 243 DLT 675
2. M.L. Sethi v. R.P. Kapur, AIR 1972 SC 2379
6. On the other hand, learned counsel appearing for defendant No.2/respondent has supported the conclusion arrived at by the learned Joint Registrar by reiterating the submissions, which were made by defendant no.2 before the learned Joint Registrar. He additionally relied upon the judgments in the case of Shravan Kumar v. Sumeet Kumar Garg, Civil Revision No. 2057/2002 of the Punjab and Haryana High Court and New India Insurance v. Sumer Chand and Ors., 2005 (2) CivCC 183.
7. Having heard the learned counsel for the parties, the only issue which needs to be decided is whether the learned Joint Registrar was right in directing the plaintiff/appellant to respond in writing on oath / affidavit within a week as to whether it is in possession of the site plan mentioned in the Sale Deed and if so, the same to be filed / produced in the court.
8. The suit has been filed by the plaintiff for the prayers already reflected above. In brief, the case filed by the plaintiff is for seeking injunction order against the defendants more particularly defendant Nos.1 to 3 from publishing / broadcasting, through online, false information about the plaintiff’s project land and for compensation / damages According to the plaintiff and as contended by Mr. Sindhwani, the information is untrue, malicious and defamatory.
9. Defendant nos. 2 and 3 have filed their written statement and defendant No.3 has also taken a stand similar to defendant No.2 as already reflected above.
10. It is the case of the defendant No.2 that public land has been encroached. If the stand of defendant No. 2 is correct, it cannot be said that the interview aired is false, malicious and defamatory. But if it is otherwise, then the consequence in law will follow. For ascertaining the correct position, the site plan which depicts the land sold becomes relevant. The learned Joint Registrar has rightly observed that the identification of the land is a fact in issue.
11. The provisions Under Order XI Rule 12 and 14 of CPC are very clear. They are reproduced as under:
“ORDER XI:
xxx xxx xxx
Rule 12. Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit :
Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saying costs.
Rule 14. 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.”
12. Under Rule 12, the Court may issue direction to any party to the suit to make discovery on oath of the documents which are or have been in its possession or power. If such a discovery is found unnecessary then the said prayer can be declined. Under Rule 14, all the documents listed in the application are required to be produced as long as they are found to be relevant to any matter in question raised in the suit. So, noting the provisions under Order XI Rule 12 and 14, it is clear that the learned Joint Registrar has not committed any error as the document is relevant. The Coordinate Bench of this court in the case of DSIIDC v. Shiv Kumar, 2013 SCC Online Delhi 3773, has held that before making an order under the provisions of Order XI, the following principles have to be considered by the Court:
(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.
13. The aforesaid principles clearly apply to the facts of this case as noted above. Further the order directing the production of document does not by itself effect any vital and valuable rights of the parties and does not decide the matter. In so far as the judgment relied upon by Mr. Sindhwani in the case of Vipul Gupta (Supra) is concerned, this court has held (1) The court has to be satisfied that the documents in question are relevant for proper adjudication of the matter involved in the suit; (2) if a party pleads ‘truth’ as a defence, then the party has to show that when the statement was made, it was on the basis of facts and circumstances in the knowledge of party, by which party was aware that the statement which the party was making was true or there was a reasonable belief based on material and information then available, that whatever being stated was true.
14. There cannot be any dispute on the propositions of law laid down in the said judgment. But in this case, the plaintiff relied upon / produced only a part of the Sale Deed and not the complete one with the site plan for the reasons best known. The Sale Deed along with site plan having been executed in the year 2005 was in existence when the interview / statement was given in the year 2018 and it is also the case of the defendant No.2 in the application for discovery and production of documents that on a perusal of the Sale Deed, more particularly Schedules annexed thereto, it is revealed that the property is measuring 4.54 acres. It is also his case that the plaintiff grabbed, much more area than 4.54 acres, of the Gaon Sabha, Village Azadpur. Therefore, defendant No.2 is imputing his knowledge to the Sale Deed and schedules annexed thereto which includes the site plan of the land. That apart, I find that the Court in Vipul Gupta (Supra) has come to a conclusion that the documents of which discovery is sought are not relevant for the purpose of the adjudication of the disputes between the parties, if a party is seeking to make a roving and fishing enquiry into the personal records of the other party. The judgment relied upon is distinguishable on facts. In so far as the reliance placed by Mr. Sindhwani on M.L. Sethi (Supra) is concerned, in the said judgment on the issue of discovery, the Supreme Court has held as under:
“7. When the Court makes an order for discovery under the Rule, the opposite party is bound to make an affidavit of documents and if he fails to do so, he will be subject to the penalties specified in Rule 21 of Order 11. An affidavit of documents shall set forth all the documents which are, or have been in his possession or power relating to the matter in question in the proceedings. And as to the documents which are not, but have been in his possession or power, he must state what has become of them and in whose possession they are, in order that the opposite party may be enabled to get production from the persons who have possession of them (see form NO.5 in Appendix C of the Civil Procedure Code). After he has disclosed the documents by the affidavit, he may be required to produce for inspection such of the documents as he is in possession of and as are relevant.”
15. The aforesaid judgment shall not help the case of the plaintiff at all.
16. In view of by above discussion, I do not see any reason to interfere with the impugned order.

17. The appeal is dismissed. List before learned Joint Registrar for marking of exhibits on July 3, 2020.
V. KAMESWAR RAO, J
MAY 26, 2020
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