1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4913 OF 2009 (Dr. Mrs. Sudha N. Sutaria vs. Banwarilal Purohit & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JANUARY 28, 2010. Heard finally Shri Jaiswal, learned counsel for the petitioner, Shri Agrawal, learned counsel for respondent No.1, Shri Kothari, learned AGP for respondents No. 3 & 6, Shri Chhabra, learned counsel for respondent No.4 and Shri Puranik, learned counsel for respondent No.5. In a suit for recovery of damages for defamation on account of some news item published in Newspapers including a Newspaper of Respondent No.1, the Newspaper cuttings were filed along with the plaint. At the time of recording of evidence, those cuttings of Newspapers have been given article number. The case of the petitioner – plaintiff is, later on she could trace out original entire Newspapers and those Newspapers were sought to be produced on record and to prove those Newspapers, recall of plaintiff and printer/ publisher of those Newspapers was sought. The same has been rejected by the lower Court. Shri Jaiswal, learned counsel states that the 2 Newspapers were not available and even respondent No. 1, who is owner of one Newspaper in which part of those cuttings were published, has stated that Newspapers were not available. Shri Agrawal, learned counsel by placing reliance upon the judgment of the Hon'ble Apex Court in the case of M.M. Amonkar vs. S.A. Johri, reported at AIR 1984 SC 931, contends that the recall is contemplated and can be permitted in exceptional circumstances. According to him, in the present matter, the circumstances which compelled the recall are neither pleaded nor proved. He states that the plaintiff was all the while aware of requirement of law and the requirement of producing entire Newspaper needed to be placed on record. He points out that story of alleged discovery of original Newspaper is also not trustworthy because for 12 years i.e. after the institution of suit till filing of documents, one cannot presume that maintenance of house (residence) of the petitioner – plaintiff was going on. He further points out that the plaintiff has been cross examined and the printer/ publisher has also been cross examined. In view of their cross examination, if such permission is now granted, it would amount to filling in lacunae. He further states that evidence of plaintiff is already closed and defendant – Respondent No.1 has in view of the evidence which has come on record, declined to adduce any evidence and filed pursis accordingly. He, therefore, argues that if 3 this Court interferes in the matter, it would constitute putting the clock back. The nature of suit shows the relevance of original Newspapers sought to be produced. The fact that the Newspapers in which the alleged news item appeared were belonging to Respondent No.1 is also not in dispute. Respondent No.1 did not approach the Court with case that such Newspaper was never published by him. He only stated that the Newspapers of relevant dates are not available. The petitioner – plaintiff has filed original cuttings from relevant Newspapers along with plaint and she has also deposed accordingly and those cuttings have been given article number. In these circumstances, it cannot be presumed that the petitioner – plaintiff has got any malafides in the matter and she had any reason for not filing originals on record. The facts show that original Newspapers having disputed news are coming on record, therefore, it is in the fitness of things and also in the interest of justice. The facts also show that no prejudice is caused to present respondents in the matter in any way by permitting such document to be taken on record or by permitting recall of the petitioner/ plaintiff and printer/ publisher for said purpose. The recall shall be only for the purposes of proving the Newspaper and Printer/ Publisher shall also be examined only to limited extent. The respondents are at liberty to cross examine the plaintiff and Printer/ 4 Publisher. They can also lead defence evidence thereafter, if any. The impugned orders dated 17.07.2009 passed below Exh. 143 and 139 are hereby quashed and set aside. Both the applications are accordingly granted. Writ Petition is disposed of. Rule accordingly. No order as to costs. As the suit is of the year 1997, the proceedings in the suit are expedited and trial Court is directed to decide the same as early as possible and in any case by 30th April 2010. JUDGE *GS.