$~23.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(OS) No.3457/2015 & IA No.15403/2016 (of defendant no.5 under
Order VI Rule 17 of the CPC).
ARUN JAITLEY ..... Plaintiff
Through: Mr. Rajiv Nayar, Sr. Adv., Mr.
Sandeep Sethi, Sr. Adv. and Ms.
Prathiba M. Singh, Sr. Adv. with Mr.
Manish Dogra and Ms. Radha
Chawla, Advs.
versus
ARVIND KEJRIWAL & ORS ..... Defendants
Through: Mr. Anupam Srivastava,
Mr. Rishikesh Kumar, Mr. Irsad and
Ms. Shreya Mehta, Advs. for D-1.
Mr. H.S. Phoolka, Sr. Adv. with Mr.
Peeyoosh Kalra, Adv. for D-2.
Mr. Sanjay Hegde, Sr. Adv. with Mr.
Avi Singh and Jaskaran Sibia, Advs.
For D-5.
Mr. Anuj Aggarwal, ASC, GNCTD
with Ms. Debashree Mukherjee, Adv.
for D-6.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 01.03.2017
IA No.2702/2017 (of the defendant no.5 under Order VIII Rule 1A for
filing additional documents)
1. The senior counsels for the plaintiff fairly state that they have no
objection.

2. The application is allowed and disposed of.

3. The documents filed therewith are taken on record.

CS(OS) No.3457/2015 page 1 of 8

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 06/01/2025 at 23:16:50
 IA No.2704/2017 (of the defendant no.1 under Order XVIII Rule 4 of
the CPC).
4. The defendant no.1 seeks striking off from the affidavit by way of
examination-in-chief of the plaintiff of certain portions claiming the same to
be beyond pleadings.

5. The law is very well settled by now that the person objecting to any
portion of the affidavit by way of examination-in-chief on the ground of
being beyond pleading is to, before commencing cross-examination have his
objection to the said effect recorded and to thereafter, either choose not to
cross-examine on the said portion or cross-examine on the said portion
without prejudice to his objections and in both cases, subject to the
arguments in this respect at the time of final hearing. The reason therefor is
obvious. If at the stage of recording of evidence before the Joint Registrar or
Commissioner, the Courts start adjudicating such applications, it would
unduly result in a „mini trial / adjudication‟ and appeals thereagainst and
defer trial.

6. The counsel for the applicant/defendant no.1 though has cited

Ramesh Kumar Arora Vs. Bhola Nath 2011 (125) DRJ 356 but the same
also is to the same effect. The counsel of course attempts to contend that it
was so held in that case owing to the recording of evidence being before the
Court Commissioner and not before the Joint Registrar.

7. However from a reading of the judgment I am unable to cull out any

such distinction. The principle is applicable, irrespective of whether the
CS(OS) No.3457/2015 page 2 of 8

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 06/01/2025 at 23:16:50
 recording of evidence is before the Joint Registrar or the Court
Commissioner. Reference can be made to Ameer Trading Corporation Ltd.
Vs. Shapoorji Data Processing Ltd. (2004) 1 SCC 702 and Hemendra
Rasiklal Ghia Vs. Subodh Mody 2008 SCC OnLine Bom 1017 (FB).

8. It is also the contention of the counsel for the applicant/defendant no.1

that since there are other defendants also in the suit, if some other defendant
cross-examines the plaintiff with respect to the portions of the affidavit by
way of examination-in-chief which according to the applicant/defendant
no.1 are beyond pleading, the entire cross-examination will be read against
the applicant/defendant no.1 also.

9. However, the counsel for the applicant/defendant no.1 on being asked

to show the law on the basis whereof such contention is made, is unable to
show any.

10. There is no merit in the application.

11. Dismissed.

IA No.2703/2017 (of the defendant no.1 under Order XI Rules 12 and 14

of the CPC)
12. The defendant no.1 by this application seeks production by the
plaintiff of the records of bank accounts of the plaintiff as well as all his
family members for the relevant period along with a narrative of each and
every entry therein.

13. The counsel for the applicant/defendant no.1 on enquiry as to the

relevance of the said documents contends that it is the plea of the plaintiff
CS(OS) No.3457/2015 page 3 of 8

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 06/01/2025 at 23:16:50
 that he has not received any benefits from the Delhi & District Cricket
Association (DDCA) or from any contracts of the DDCA and the said
records sought to be produced are necessary for the applicant/defendant no.1
to peruse to find out whether there are any entries in the bank accounts of
the plaintiff and his family members of having received any payments from
DDCA or from any of the firms with which DDCA had entered into the
contract.

14. The counsel for the applicant/defendant no.1 admits that the onus of
the said issue is on the defendants.

15. Once that is so, the documents sought from the plaintiff are nothing
but in the nature of fishing and roving enquiry.

16. The counsel for the applicant/defendant no.1 then states that without
the said records “how will the defendant no.1 prove the issue”.

17. Though not in the domain of the Court to advise, but it is for the
applicant/defendant no.1 to adduce evidence of the accounts from which
monies are alleged to have flowed to the plaintiff or his family members,
instead of wanting to find out from the bank accounts of plaintiff and his
family members whether they have received any money.

18. There is no merit in the application.

19. Dismissed.

IA No. 2617/2017 (of the defendant no.5 under Order XIV Rule 5 CPC).
20. The defendant no.5 seeks framing of the following issues:-
CS(OS) No.3457/2015 page 4 of 8

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 06/01/2025 at 23:16:50
 (vii) Whether the alleged defamatory statements attributed to the
defendants are privileged? OPD

(viii) Whether the plaintiff proves that the alleged defamatory

statements attributed to the defendants are actuated by malice?
OPP

in addition to the issues already framed on 12th July, 2016.

21. The senior counsel for the applicant/defendant no.5 has argued that
the applicant/defendant no.5 is the National Spokesperson of a National
Political Party and enjoys a privilege.

22. I have enquired from the senior counsel for the applicant/defendant
no.5 whether any such privilege is available in law.

23. The senior counsel for the applicant/defendant no.5 has drawn
attention to the pleas of the applicant/defendant no.5 in his written statement
and set-out in paras 4 to 6 of this application and contends that since a plea
has been raised, an issue has to be necessarily framed thereon.

24. I do not agree. Issues are to be framed only on “material” pleas of

laws and fact and if were to be framed on “all pleas”, even if frivolous and
untenable and not material, framing thereof, instead of guiding the trial,
would serve the purpose of delaying the trial.

25. The senior counsel for the applicant/defendant no.5, to show that the
plea is a material one, has drawn attention to Reynolds Vs. Times
Newspapers Limited (1999) 4 All ER 609 (HL).
CS(OS) No.3457/2015 page 5 of 8

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 06/01/2025 at 23:16:50
 26. The senior counsels for the plaintiffs have drawn attention to (i) the
issues no.(iv) and (v) already framed on 12th July, 2016 and have contended
that issue no.(iv) would certainly cover the aspect of privilege; (ii) that
Article 19(2) of the Constitution of India also carves out an exception for
defamation; and, (iii) that the judgment cited by the applicant/defendant no.5
is in the context of Defamation Act, 1996 of U.K. and there is no
codification of the law of defamation in India.

27. The senior counsel for the applicant/defendant no.5 has in rejoinder
drawn attention to para 26 of R. Rajagopal Vs. State of Tamil Nadu (1994)
6 SCC 632.

28. I have enquired from the senior counsel for the applicant/defendant
no.5, whether the applicant/defendant no.5 as a consequence of the
additional issues sought, would file any additional documents or amendment
of the written statement or otherwise derail the recording of evidence
underway.

29. The senior counsel for the applicant/defendant no.5 on instructions

states that nothing of the sort will be done.

30. It is however clarified that though an application of the

applicant/defendant no.5 for amendment of the written statement is pending
but the same is not relateable to the additional issues sought to be framed.

31. The senior counsel for the applicant/defendant no.5 on enquiry,

whether not the proposed issues are covered by the issues no.(iv) and (v)
CS(OS) No.3457/2015 page 6 of 8

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 06/01/2025 at 23:16:50
 already framed on 12th July, 2016, states that they are not “adequately”
covered.

32. Though I am still not satisfied that there is any such privilege as is
claimed, but following the principle of law aforesaid discussed, this is not
the stage for a „mini trial / adjudication‟.

33. Further, though in my view the purpose of the application can be

served by clarifying that the pleas on which proposed issues are sought
would be covered in issues no.(iv) and (v) but the senior counsel for the
applicant/defendant no.5 seeks framing of additional issues.

34. The only apprehension in framing of the additional issues is that even
if not the applicant/defendant no.5, some other defendants would use the
same to derail the recording of evidence.

35. The counsels for the other defendants also state that they will not
derail the trial for the reason of framing of the additional issues.

36. The senior counsels for plaintiff state that the onus of the proposed
issue no.(viii) should be on the applicant/defendant No.5.

37. The senior counsel for the applicant/defendant no.5 states that he will
be satisfied with the framing of only first of the aforesaid two additional
issues.

38. Accordingly, in addition to the issues already framed on 12th July,

2016, the following issue is framed:

(vii) Whether the alleged defamatory statements attributed to the

defendants are privileged? OPD.
CS(OS) No.3457/2015 page 7 of 8

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 06/01/2025 at 23:16:50
 39. The application is disposed of.

RAJIV SAHAI ENDLAW, J

MARCH 01, 2017
„pp‟

CS(OS) No.3457/2015 page 8 of 8

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 06/01/2025 at 23:16:50