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Madhya Pradesh High Court · body

2010 DIGILAW 106 (MP)

Jogendra Singh Pal v. Omprakash Gupta

2010-01-25

PIYUSH MATHUR, S.K.GANGELE

body2010
ORDER Mathur, J. --1. This writ petition has been preferred by the defendant tenant/petitioner Jogendra Singh Pal, a tenant inducted in the premises owned by the plaintiffs-respondents Omprakash Gupta, Khem Chand Gupta, Radhelal Gupta and Kalicharan Gupta whose application, preferred under Order 16 rule 1 (6) of CPC has been rejected vide order dated 12.12.2009 by the 8th Civil Judge, Class II, Gwalior in Civil Suit No.48N2009. 2. The plaintiffs have preferred a suit seeking eviction of the tenant in terms of the provisions of section 12(1)(a) and (f) of M.P. Accommodation Control Act by demonstrating the personal need of plaintiff-respondent No.3 and his son for running a business. The plaint allegations were denied by the defendant-tenant in his written statement by advancing the defence that the disputed shop is not actually required for commencing the business as the persons for whom the need has been raised are already running a business of selling readymade garments. 3. The record reveals that on previous two occasions, the tenant Jogendra Singh Pal/defendant-petitioner has approached this Court in Writ Petition No.5659/2006 and the landlord in Writ Petition No.3608/2008 where this Court had granted permission for allowing the amendment application preferred by the defendant-tenant in terms of Order 6 rule 17 CPC and subsequently in the plaintiffs' writ petition, this Court has permitted the plaintiffs to produce the evidence in rebuttal. 4. Shri V.K. Bharadwaj, learned senior counsel appearing for the tenant petitioner has submitted that based upon the pleadings of the written statement regarding running a business by the persons for whom the need has been raised, the plaintiff-Radhelal Gupta was examined and cross-examined and a question was put to him that the plaintiffs belong to Mahor Gaur Vashya Samaj and a magazine of their Samaj was published wherein the details of her daughter Ms. Pinki Gupta was published wherein the occupation of the father was described as running a shop of selling readymade garments and the witness has admitted the fact that the magazine of this nature was published by the Samaj but the witness Radhelal Gupta has clearly denied the fact about information being given by him for the publication in the magazine about his occupation. Shri Bharadwaj submitted that since the witness has admitted the publication of the magazine but has denied the contents regarding his business, therefore, it was necessary for the tenant to have summoned the editor/ publisher/maker of the magazine, to prove the contents about occupation of the plaintiff/witness. 5. Shri Y.K. Bharadwaj, learned senior counsel appearing for the tenant petitioner has relied upon a judgment of the Supreme Court reported as AIR 1971 SC 1865 = (1972)4 SCC 562 Sait Tarajee Khimchand and others v. Yelamarti Satyam alias Satteyya and others, where the Supreme Court has observed that mere marking of the exhibit on a document does not dispense with the requirement of proving the document and on the basis of this judgment Shri Bharadwaj submitted that unless the editor/publisher/ maker of the magazine are examined/cross-examined, the contents of the document which has been exhibited as Annexure D-14 during the cross-examination of plaintiff Radhelal Gupta could not be treated to be proved in terms of the provisions of the Indian Evidence Act. 6. Shri Bharadwaj has further argued that in a celebrated judgment of the Supreme Court reported as AIR 1988 SC 1274 = (1988)3 SCC 319 Laxmi Raj Shetty and another v. State of Tamil Nadu, the Supreme Court while examining the scope and sweep of section 81 of the Indian Evidence Act has observed in relation to the newspaper report that the contents of news items are merely hearsay and unless the editor/publisher/maker of the newspaper is examined, the contents thereof cannot be treated to be duly proved. Shri Bharadwaj while advancing the analogy of section 81 of the Indian Evidence Act has argued that the Supreme Court has clearly observed in its judgment reported as AIR 1986 SC03=1985 (Supp.) SCC 611 Ram Singh and others v. Col. Ram Singh and others v. Col. Ram Singh, while examining a case of Representation of the People Act that section 61,67 and81 of the Indian Evidence Act provides for the manner and method of proving a document as also its contents and since a document, contents whereof were not proved by examining the maker thereof, would not be admissible in the evidence. Ram Singh, while examining a case of Representation of the People Act that section 61,67 and81 of the Indian Evidence Act provides for the manner and method of proving a document as also its contents and since a document, contents whereof were not proved by examining the maker thereof, would not be admissible in the evidence. Shri Bharadwaj further submits that the trial Court has materially erred in not allowing the application for summoning the document and the editor/publisher/maker of the magazine for facilitating the tenant-petitioner to prove the contents of the magazine, about the fact of occupation of the plaintiff Radhelal Gupta. 7. Shri U.K. Jain, learned counsel for the plaintiff has argued that the tenant had earlier approached this Court by preferring Writ Petition No.5659/2006, where his amendment application was allowed by the Court and the witness Radhelal Gupta was permitted to be recalled for cross-examination and when the cross-examination was permitted by this Court and the document Annexure D-14 (extract of the magazine) was exhibited during cross-examination, the trial Court has not committed any error in rejecting the prayer or summoning the editor/publisher/maker of the magazine. He further submitted that this Court has clearly granted permission to the plaintiff to lead evidence in rebuttal in view of the liberty granted to the tenant and after adaptation of the aforesaid procedure by the trial Court nothing survives for interference in the present writ petition by this Court. 8. A perusal of sub-rule (6) of Order 16 of CPC demonstrate that a Court possesses the power to issue a summon for the production of the document and the Court is required to ascertain the justification of the documents sought to be summoned during the course of the trial. The pleadings and arguments of the parties demonstrate that the plaintiff Radhelal Gupta has admitted the fact of publication of the magazine but has clearly denied the details concerning his occupation of running a ready made garments shop, which was mentioned in the column of the· occupation of the father of the daughter Pinki Gupta and in this background it becomes absolutely necessary for the defendant to summon the documents and the prayer of calling the editor/publisher/maker of the magazine. It is not a case where the plaintiff Radhelal Gupta had admitted the contents of the document where after the requirement of sections 61, 67 and 81 of Indian Evidence Act would have been accomplished but when he has emphatically denied the contents, a party is left with no choice, except to summon the maker of the document, because without calling the maker of the document, the contents could neither be proved nor. a presumption could be drawn in terms of section 81 of the Indian Evidence Act. The learned counsel for the tenant/petitioner has rightly relied upon the two judgments of the Supreme Court reported as AIR 1971 SC 1864 Mukhtiar Singh v. State of Punjab and AIR 1988 SC ·1274 Laxmi Raj Shetty and another v. State of Tamil Nadu, where the Supreme Court has found the necessity of recording the statement of the maker of the document. . 9. While examining the analogy of section 81 of the Indian Evidence Act in the case of Laxmi Raj Shetty and another v. State of Tamil Nadu, reported as AIR 1988 SC 1274 , the Supreme Court has recently relied upon the same analogy, which was propounded in its earlier judgment while pronouncing the latest judgment in the case of Bharat SancharNigam Limited and another v. BPL Mobile Cellular Limited and others, reported as (2008) 13 SCC 597, which clarifies that the view taken in the year 1988 by the Supreme Court has still been found to be correct in relation to the newspaper report being hearsay evidence as also the necessity of examining the maker of the document. 10. Since the plaintiff Radhela1 Gupta has denied the contents of the document, it would be useful to make a reference to another latest decision of the Supreme Court reported as (2009)5 SCC 417 All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi and others, where the Supreme Court has observed that when the witness denies the fact, which needs to be proved in terms of provisions of sections 61 and 67 of the Indian Evidence Act, therefore for that purpose the maker of the document should be examined. 11. In yet another judgment reported as (2005)11 SCC 600 State (NCT of Delhi) v. Navjot Sandhu, the Supreme Court has observed in paragraph No.154 and 155 that the question of admissibility of evidence should be strictly examined by the Courts. 11. In yet another judgment reported as (2005)11 SCC 600 State (NCT of Delhi) v. Navjot Sandhu, the Supreme Court has observed in paragraph No.154 and 155 that the question of admissibility of evidence should be strictly examined by the Courts. 12. It would not be out of place to mention another analysis of the situation, where a witness is forced to appear before the Court for deposing about a fact which also infringes the right or a privilege available to him under any independent law but even in this situation the Supreme Court has found the necessity to summon the witness for the just decision of the case, when a question of calling witnesses in an election matter arose, for the purposes of putting several questions, including the question relating to the fact about casting of vote in favour of a particular candidate, the Supreme Court, while examining this aspect in the case of Nayini Narasimha Reddy v. Dr. K. Lalxman and others, reported as (2006)5 SCC 239 has observed that even when the voter has a privilege of not making disclosure of the fact about casting of vote in favour of a particular candidate, the Court has observed in the following terms, the necessity of summoning a witness: "14. It is one thing to say that the civil Court while issuing a summon must exercise its jurisdiction in terms of sub-rule (2) of rule 1 Order 16 of the Code of Civil Procedure but it is another thing to say that the Court would refuse to summon the witness only because a question as regards exercise of the privilege of the witness may arise. The Court may not refuse to exercise its jurisdiction only on the ground that by reason thereof the privilege of a voter may be violated." 13. The Court may not refuse to exercise its jurisdiction only on the ground that by reason thereof the privilege of a voter may be violated." 13. In the backdrop of aforesaid factual and legal discussion, it is apparent that when the plaintiff Radhelal Gupta had denied correctness of the contents of the maker of the document during the course of his cross-examination, the allegations or arguments about the delay being caused in preferring an application for summoning the document/witness could not be treated to be a convincing argument although in the peculiar facts and circumstances of the case, the application was moved by the tenant/ petitioner soon after completion of the statements of the witnesses, when he denied the contents of the document and as such the prayer made in terms of Order 16 rule 6 of CPC could have not been refused by the Court below. Similarly, the arguments of Shri U.K. Jain would have no relevance or significance when he argues that the evidence was being led in rebuttal and it was not original evidence or information given by the plaintiff himself and the maker of the document could have not been summoned. 14. Therefore, in view of the provisions of law holding the field in relation to Order 16 rule 6 CPC as also in view of the judgment of the Supreme Court, we find that the trial Court has committed a serious error of law in not allowing the application preferred by the tenant under Order 16 rule 6 of CPC and as such the impugned order passed on date 12.12.2009 by the 8th Civil Judge, Class II, Gwalior in Civil Suit No.48-N2009 is set aside and the application moved by the tenant/petitioner under Order 16 rule 6 of CPC is allowed with a direction to the Court below to summon the documents and proceed in terms of Order 16 of CPC. 15. Therefore, the writ petition is allowed, however, there shall be no order as to costs.