Shri. Satya Gopal (I.A.S) vs Satish Banwarilal Sharma
2021 Latest Caselaw 3752 Bom

                                                                           (5) WP-2650-2020.doc

BDP-SPS

 Bharat

                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 D.
 Pandit
Digitally signed
by Bharat D.
Pandit
Date: 2021.03.03
11:07:22 +0530



                                        CIVIL APPELLATE JURISDICTION

                                       WRIT PETITION NO. 2650 OF 2020


                   Shri Satya Gopal (I.A.S.)                   .... Petitioner.

                            V/s

                   Satish Banwarilal Sharma                    .... Respondent

                   ----
                   Mr. Subir Kumar a/w Mr. Rahul Sinha and Prerna Gandhi i/b DSK
                   Legal for the Petitioner.

                   Mr. Kamalesh P. Mali for the Respondent.
                   ----

                                        CORAM: NITIN W. SAMBRE, J.

                                        DATE:     MARCH 1, 2021

                   P.C.:-


                   1]       This Petition is by the Defendant to the suit being S.C. Suit No.8

of 2012 pending on the file of Civil Judge, Senior Division, Daman in

which Application-Exhibit-48 moved by original Plaintiff/Respondent

for permission to produce Compact Disk ("CD") containing video

footage of the alleged incident of defamation came to be allowed.

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2] Facts necessary for deciding the Petition are as under:-

3] It is the case of the Respondent/Plaintiff that on 19/07/2010 in

press conference addressed by Central Home Minister, Petitioner has

defamed him resulting into filing of the suit being S.C. Suit No.8 of

2012 for damages. The said suit was resisted by the Petitioner and

after issues are framed, trial has commenced on 13/08/2014. The

Respondent, in view of provisions of order 18 Rule 4 and 5 submitted

affidavit of oral evidence alongwith list of documents to be relied on

so as to substantiate the allegations made in the suit. Application-

Exhibit-48 for production of CD and application-Exhibit-50 for

production of certificate under Section 65-B of the Evidence Act came

to be moved by the Respondent which was objected to by the

Petitioner. The said application-Exhibit-48 came to be allowed vide

order dated 29/07/2016.

4] The said order was set aside by this Court on 27/01/2017 at the

behest of the Petitioner in Writ Petition No.11425 of 2016 with

directions to the learned Trial Court to decide the said application-

Exhibit-48 afresh by giving detail reasons in support of the order.

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5] The Trial Court vide order dated 19/09/2018 allowed the

application-Exhibit-48 permitting production of CD.

6] The Petitioner thereafter moved an application seeking recalling

of Order dated 19/09/2018 which was recalled vide Order dated

11/12/2019. The said application-Exhibit-48 was heard afresh and

vide order dated 17/01/2020, application-Exhibit-48 came to be

allowed. As such, this Petition.

7] While questioning the order impugned, learned Counsel for the

Petitioner would urge that the Respondent has failed to provide

sufficient reasons for non-production of the CD and certificate under

Section 65-B of the Evidence Act at the time of filing of suit or

alongwith examination-in-chief. Said evidence is sought to be

produced at belated stage after amendments were permitted i.e. after

commencement of the trial. He would claim that since the suit claim

is based on the incident of 19/07/2010 and evidence in the form of

CD is produced after six years, hence there is doubt about authenticity

of CD. According to the learned Counsel, when the Petitioner has

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placed on record his affidavit of evidence after issues were framed at

Exhibit-15, there is no reference to the aforesaid electronic evidence

i.e. CD and the certificate under Section 65B of the Evidence Act. As

such, he would claim that aforesaid attempt on the part of the

Respondent/Plaintiff is to take the present Petitioner by surprise and

to strengthen the case without any support of law. By inviting my

attention to the judgment of the Delhi High Court in the matter of

Gold Rock World Trade Ltd vs. Veejay Lakshmi Engineering Works

Ltd. reported in 2007 SCC OnLine 1140 submissions are, if there is no

reference to the document which is produced at much belated stage

i.e. after commencement of trial, in the affidavit of witness, and if it

can be established that the party concerned, like the Respondent in

this case, was aware about existence of such document, Respondent

has failed to produce the same at appropriate stage in spite of due

diligence, same cannot be permitted to be produced at later stage. As

such, according to the learned Counsel for the Petitioner, the order

impugned is not sustainable.

8] The learned Counsel for the Respondent would support the

order impugned. He would urge that even if examination-in-chief of

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the Respondent is placed on record, recording of evidence is yet to

commence and that being so, no prejudice is caused to the Petitioner.

9] I have considered rival submissions.

10] By detail impugned order dated 17/01/2020, Respondent is

permitted to place on record CD in exercise of powers under Order 7

Rule 14 of the CPC. As far as claim of the Petitioner that there is

doubt about genuineness of the aforesaid CD is concerned, same

cannot not be gone into at the stage of its production, as the

Petitioner will get every chance to cross-examine the Plaintiff and the

witness from whose custody the said document has been produced.

Apart from above, fact remains that even if trial has commenced, it is

at very initial stage i.e. Plaintiff/Respondent has submitted his

affidavit of examination-in-chief. As such, Petitioner will have every

opportunity to meet the said piece of evidence at the time of cross-

examination of the Plaintiff and his witnesses.

11] The aforesaid CD was not produced at the time of filing of the

affidavit of the Respondent as the document was in possession of some

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other Reporter. It is claimed by the Respondent that he was expecting

that the said Reporter would produce the same. It is further claimed

by him that after advocate's advice, he could pursue the said Reporter

to handover copy of the CD and certificate under Section 65-B of the

Evidence Act.

12] Apart from above, Court is required to be sensitive to the

pleadings about existence of CD i.e. para 20 of the Plaint and it cannot

be said that the Petitioner is taken by surprise or at the threshold the

Petitioner can doubt very genuineness of the said CD. The certificate

under Section 65-B of the Evidence Act can be produced even at later

stage after production of electronic evidence i.e. CD.

13] In the aforesaid backdrop, I see no reason to cause any

interference in the order impugned, particularly when likely prejudice

is not demonstrated by the Petitioner. Reliance placed by the

Petitioner on the judgment of the Delhi High Court in the matter of

Gold Rock World Trade Ltd cited supra will be of hardly any assistance

as it can be noticed that in the Plaint there is reference to the existence

of CD.

(5) WP-2650-2020.doc

14] In the aforesaid backdrop, no case for interference is made out.

Petition fails and same stands dismissed.

( NITIN W. SAMBRE, J. )