Whether conduct of defendant who is seeking vacation of interim order should also be fair and honest?

  The Wander Ltd. v. Antox India P. Ltd. (supra) fell for consideration in Gujarat Bottling Co. Ltd. v. Coca Cola Co. MANU/SC/0472/1995 : (1995) 5 SCC 545 wherein the Hon'ble Supreme Court observed that under Order 39 CPC the jurisdiction of the court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. It is relevant to reproduce paragraph No. 47 as under:

"47. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings". {Para 33}

34. In the present case, the trial court, while granting temporary injunction, has discussed that during the pendency of the suit the defendant No. 1, the appellant herein, transferred the suit schedule property in favour of defendants Nos. 2 and 3, and those defendants, in turn, transferred the part of the suit property in favour of third persons. The defendants/appellants invoking the jurisdiction of this court are therefore responsible for bringing about the state of things complained of by the plaintiff/respondent before the court below and cannot be prima facie said to be equitable in his dealings. In Gujarat Bottling Co. Ltd. v. Coca Cola Co. (supra) the Hon'ble Apex Court clearly laid down that the considerations of the conduct being fair and honest will arise not only in respect of an applicant seeking an order of injunction but also in respect of the party approaching the court for vacating the ad interim or temporary injunction already granted in the pending suit or proceeding.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

Civil Miscellaneous Appeal Nos. 43 and 45 of 2021

Decided On: 25.01.2022

K. Ravi Prasad Reddy and Ors.  Vs.  G. Giridhar and Ors.

Hon'ble Judges/Coram:

C. Praveen Kumar and Ravi Nath Tilhari, JJ.

Author: Ravi Nath Tilhari, J.

Citation: MANU/AP/0075/2022.

Read full Judgment here: Click here

Print Page

How is the doctrine of hearsay applicable for proof of Electronic evidence?

In Balram Prasad Agrawal versus State of Bihar and Others; MANU/SC/0427/1997 : (1997) 9 SCC 338, the Supreme Court referred to the concept of hearsay evidence and observed that even if some information is ruled out as hearsay, it may still remain admissible as evidence of the conduct of the witness. Relying on Section 8 of the Evidence Act, it was observed as under:-

"11. ...This part of the evidence of PW 6 would not be hit by the rule of exclusion of hearsay evidence. A decision of this Court deserves to be noted on this aspect. In the case of J.D. Jain v. State Bank MANU/SC/0427/1981 : AIR 1982 SC 673 of India a Bench of three learned Judges speaking through Baharul Islam, J. in the Report has made the following pertinent observations: (AIR p. 676, para 10 : SCC p. 148, paras 21 and 22)

"The word "hearsay" is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else. (See Stephen on Law of Evidence)

The Privy Council in the case of Subramaniam v. Public Prosecutor 1956 WLR 965, observed:

"Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made."

The term "hearsay" applies to both spoken or oral evidence and also has reference to what is written. Hearsay evidence is rejected on the principle that the best evidence obtainable should be produced as it is relatively trustworthy, whereas hearsay evidence poses difficulties for it derives value not from the witness himself, but on the veracity and competence of some other person whose version is not tested in the cross-examination.

50. For principle of hearsay to apply and reject an evidence, it must be shown that it was made by some other declarant other than the one testifying at the trial of hearing and the statement is being offered in evidence to prove the truth of the matter asserted. Therefore, even if the evidence is an assertion made by the declarant, it will not be hearsay until it is offered to prove the truth of what is asserted.

51. A statement which is not assertion, i.e., to state the truth declared and maintained, but only a statement of fact is not hearsay. A hearsay declarants non-verbal conduct may qualify as a "statement" for purpose of exclusion under the hearsay rule, if the conduct of the person intended by him as a substitute for oral or written verbal expression.(see, Matter of Cherl H., 2 Dist. 153 CA 3d 1098). Pertinently, in case of self-generated data or information there is no declarant as such who is asserting a fact.

52. Evidence may be offered for different purposes. The same evidence can be treated as hearsay and non-hearsay depending upon its relevance, i.e., whether it is relevant for a substantive truth or for some other purpose. For example, when person A meets person B and speaks to him about an occurrence, testimony of person B to the said effect would not be hearsay, but may become hearsay if a party seeks to rely upon facts stated by person A implicating a third person. Thus, we must notice and record the difference between a "factum of statement" and "truth of a statement". The said distinction has been recognised and accepted in several pronouncements in J.D. Jain versus State Bank of India, MANU/SC/0427/1981 : AIR 1982 SC 673, Manilal Navavati versus Sushila Mahendra Nanavati, MANU/SC/0192/1964 : AIR 1965 SC 364 and S.R. Ramaraj versus Special Court, Bombay, MANU/SC/0600/2003 : (2003) 7 SCC 175. Thus, electronic record produced as a statement as a tangible in form of a CD, print out on paper, etc. as a fact in itself, must be distinguished from electronic record, which is produced to prove truth of the matter it asserts or correctness of contents for the latter postulates adjudication of veracity and credibility of the information by the person who has made a statement offering or producing the document for its truth.

53. In view of the aforesaid discussion, information memorised as business record or records maintained in common course of events are not treated as hearsay even if the maker lacks personal knowledge of the facts or events. The document should be prepared in normal course of business must have been at or near the time of events it records and should have been made in normal course of business activities or events. Sub-section (4) to Section 65B postulates that the certificate should be given by a person occupying a responsible official position in relation to operation of the relevant device or management of the relevant activities. If the said conditions are satisfied, it promotes and establishes the trustworthiness. In such cases, presumption of fact regarding genuineness and authenticity of the content can be invoked at the discretion of the court under Section 114 of the Evidence Act.

54. In Anwar P.V. (supra) in paragraph 1 itself the Supreme Court noticed the difference between relevancy and admissibility, which is examined at the initial stage; and genuineness, veracity and reliability of the evidence, which is seen by the court subsequently. Thus, the ratio and dictum in Anwar P.V. (supra) is based and predicated on the difference between admissibility and veracity or evidentiary value. The Supreme Court dealt with the aspect of admissibility in strict legal sense, not to be confused with evidentiary value or correctness of contents. Of course, when the conditions mentioned in Section 65B are satisfied, in terms of Section 114 of the Evidence Act, the court may presume existence of certain facts for the computer output would have data and information collected or derived in common course of human conduct and in public and private business.

55. In terms of sub-section (1) to Section 65B, original evidence need not be produced when conditions of Section 65B are satisfied. The computer output in relation to the information and computer in question are admissible as secondary evidence, when certificate under Section 65B is produced. However, Section 65B nowhere states that the contents of the computer output shall be treated as the truth of the statement. Section 65B deals with admissibility of secondary evidence in the case of "electronic records" and not with the truthfulness or veracity of the contents. However, when a certificate under Section 65B is produced the Court may presume or form a prima facie opinion, which is rebuttable and may not be accepted.

56. Electronically generated record is entirely a product of functioning of a computer system or computer process, like call record details or a report generated on a fax, which shows the number from and to which the fax were sent, time, etc. is generated electronically. It does not contain any assertion. Therefore, as noticed above it is not hearsay. These are not writings made by a person (see United States versus Khorozian, 333 F. 3d 498, 506). Normally non-assertive conduct is more reliable, provided there has been no fraud and interpolation in the preparation of the record. Computer generated telephone records are not similar to a statement by a human declarant and, therefore, cannot be treated as hearsay and the credibility and evidentiary value is determined on the reliability and accuracy of the process involved. Ergo, in these cases when conditions of Section 65B are satisfied, the probative value or weight can be substantial of course, subject to verification as to the credibility and integrity of the contents.

57. We have already referred to the distinction between factum of a statement and truth of a statement and the concept of presumption of memorandum or records maintained in normal course of business and the credibility or trustworthiness of electronic records. However, it must be understood that mere admission or admissibility of the electronic record would not mean that the contents of the electronic record have been proved beyond doubt and debate and are automatically proved when the document is marked exhibit. Mere marking of a document as exhibit does not dispense with the proof of its contents (see Sait Tarajee Khimchand versus Yelamarti Satyam, MANU/SC/0022/1971 : AIR 1971 SC 1865, Narbada Devi Gupta versus Birendra Kumar Jaiswal, MANU/SC/0862/2003 : (2003) 8 SCC 745 and Mohd. Yusuf versus D. and Another, MANU/MH/0106/1968 : AIR 1968 Bombay 112). Provisions of Section 65 of Evidence Act are apposite on the said legal principle and reference can also be made to Sections 91 and 92 of the Evidence Act. The latter sections deal with exclusion of oral evidence by documentary evidence in certain cases and in which cases oral evidence can be led even when there are documents recording terms of contract, grant or any other disposition of property or when a matter is required by law to be reduced to a form of a document. The effect of the aforesaid provisions is that when a certificate under Section 65B authenticates the computer output, it will only show and establish that the computer output is the paper print out or media copy, etc. of the computer from which the output is obtained. The court has still to rule out when challenged or otherwise, the possibility of tampering, interpolation or changes from the date the record was first stored or created in the computer till the computer output is obtained. The focus over here is not so much on the creation of the out-put as stipulated under sub-section (2) to Section 65B, but rather on the preservation and sanctity of the record after it was originally created. It extends beyond identification of the particular computer equipment and the process or equipment used for computer output, etc. It would relate to the policies, procedures for use of the equipment that stored the said information since creation and data base and integrity of the same. Questions which would arise and have to be answered is whether data base was protected and had no or limited access, which permits modification/alteration; whether the data base could be wrongly lodged or created or could be transferred or changed when the data base was transferred and stored in the backup systems. These are questions which are pertinent and have to be examined to ascertain whether or not there was possibility of change, alteration or manipulation in the initial or original data after it was created. The courts must rule out that the records have not been tampered and read the data or information as it originally existed. These are aspects which are not codified as such, for probative value is examined on the case to case basis keeping in mind the relevant facts.

IN THE HIGH COURT OF DELHI

Crl. A. 711/2014

Decided On: 24.11.2015

 Kundan Singh  Vs.  The State

Hon'ble Judges/Coram:

Sanjiv Khanna and R.K. Gauba, JJ.

Citation: MANU/DE/3674/2015

Print Page

Whether attornment of tenancy can be proved by conduct of tenant?

The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the Defendant is admitted in the written statement. The Defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice Under Section 106 of the TP Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the Plaintiff as Ext. P-4.

60. Second, the Respondent by letters dated 13.06.2006, 27.06.2006, 05.07.2006 and 11.07.2006, sent to the Appellant on the question of ownership of the suit premises and payment of rent had expressed their willingness to attorn and continue the tenancy with the Appellant and also offered to pay rent to the Appellant. (See pages 198 & 199 of the SLP Paper Book-order of the Single Judge)

61. Third, the Respondent in their civil suit (No. 1183 of 2012) filed against the Appellant in Paras 15, 17, 18 and relief Clause (e) of the plaint admitted the ownership of the Appellant over the suit premises and went to the extent of seeking the mandatory injunction against the Appellant directing them to accept the monthly rent of the suit premises from the Respondent.

62. In other words, reading of the aforementioned paras in the Respondent's plaint including the relief Clause (e) would go to show that the Respondent was all along willing to accept and indeed actually accepted the ownership of the Appellant over the suit premises and, therefore, sought mandatory injunction against the Appellant to accept them as tenant. The conduct of the Respondent, therefore, disentitles them to now raise a new plea questioning the title of the Appellant over the suit premises and a plea of attornment. Both, in our opinion, are wholly misconceived pleas and, therefore, deserve to be rejected.

63. As mentioned above, the title of the landlord over the tenanted premises in a suit for eviction cannot be examined like a title suit. Similarly, the attornment can be proved by several circumstances including taking into consideration the conduct of the tenant qua landlord.

64. The aforesaid three circumstances, in our opinion, are, therefore, more than sufficient to record a finding that the Appellant was prima facie able to prove their title over the suit premises so also was able to prove the factum of "attornment" made by the Respondent in relation to the suit premises in Appellant's favour thereby entitling the Appellant to determine the contractual tenancy which was devolved upon them by operation of law.

65. In the light of the foregoing discussion, we are unable to agree with the view taken by the Division Bench that there was some dispute or confusion as to who is the owner of the suit premises. In our view, there was neither any dispute and nor confusion and nor any ambiguity over the question of title over the suit premises which needed any elaborate inquiry.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4249 of 2018 (Arising out of S.L.P. (C) No. 27775 of 2017)

Decided On: 20.04.2018

Apollo Zipper India Limited Vs. W. Newman and Co. Ltd.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation:(2018) 6 SCC 744

Print Page

Whether anticipatory bail can be granted to accused considering conduct and character of prosecutrix ?

 So far the arguments of the applicant's counsel regarding conduct of the prosecutrix is concerned, in view of the settled proposition the conduct or the character of the prosecutrix could not be the criteria to grant the bail or anticipatory bail to the accused. Even otherwise for the shake of argument if it is deemed that the conduct and character of the prosecutrix was not good or suspicious or she is having the bad conduct even then any person like the applicant has no authority or right to commit the sexual act on her without her consent. The arrest of the prosecutrix in other case registered at the instance of said Garima, could not be a ground to extend the benefit of anticipatory bail to the applicant. The matrimonial dispute of the prosecutrix with her husband also could not be taken into consideration for extending the benefit of the anticipatory bail to the applicant.

Madhya Pradesh High Court

Kirti Martin vs The State Of Madhya Pradesh ... on 22 April, 2014

                                          

HIGH COURT OF MADHYA PRADESH JUDICATOR AT JABALPUR
              MISC. CRIMINAL CASE NO.2394/14.

                    Citation;2014 CRLJ3681 MP                

(Passed on 22.04.2014) Per U. C. Maheshwari J.

Print Page

What is basic concept of presumption of continuity?

"If a thing or a state of things is
shown to exist, an inference of its
continuity within a reasonably
proximate time both forwards and
backwards may sometimes be drawn.
The presumption of future
continuance is noticed in illus.(d)
to S.114. In appropriate cases, an
inference of the continuity of a
thing or state of things backwards
may be drawn under this section,
though on this point the section
does not give a separate
illustration. The rule that the
presumption of continuance may
operate retorspectively has been
recognised both in India. This is
rule of evidence by which one can
presume the continuity of things
backwards. The presumption of
continuity weakens with the passage
of time. How far the presumption
may be drawn both backwards and
forwards depends upon the nature of
the thing and the surrounding
circumstances."
Evidence of a statement made to a
witness who is not himself called
as a witness may or may not be
hearsay. It is hearsay and
inadmissible when the object of the
evidence is to establish the truth
of what is contained in the
statement. It is not hearsay and is
admissible when it is proposed to
establish by the evidence, not the
truth of the statement but the fact
that it was made. The fact that it
was made quite apart from its
truth, is frequently relevant in
considering the mental state and
conduct thereafter of the witness
on some other persons in whose
presence these statements are
made'."

Supreme Court of India

Balram Prasad Agrawal vs The State Of Bihar & Ors on 10 December, 1996

Bench: G Ray, S Majmudar

JUDGMENT:
THE 10TH DAY OF DECEMBER, 1996

Print Page