S.B. Sinha, J. (Chairperson)

1. An interesting question with regard to the interpretation of Order XVIII Rule 4 of the Code of Civil Procedure, 1908 vis-à-vis the statement made by the concerned deponent that he was not aware of the statements made therein is in question in these petitions.

2. Before, however, adverting to the said question, we may notice the factual matrix involved in the matter.

3. The Petitioner is a Multi Service Operator. It allegedly entered into a subscription agreement with the Respondent for supply of signals of its channels inter alia being SUN TV, K-TV, Udaya Channel etc.

4. Petition No. 202(C) of 2009 has been filed by the Petitioner being aggrieved by and dissatisfied with the notices dated 18.9.2009 issued by the Respondent purported to be under Clauses 4.1 and 4.3 of the Telecommunications (Broadcasting and Cable Services) Interconnection Regulations, 2004 as amended from time to time (The Regulations).

4. Admittedly, the Petitioner had been receiving signals from one Shanti Vision Communication, an authorized distributor of M/s. Citi Cable which was the only MSO operating in the area. The Petitioner made various representations to the said M/s. Shanti Vision as also M/s. Citi Cable as it was not satisfied with the quality of signals supplied to it. It, therefore, approached the Respondent directly for grant of signals by supplying decoder boxes and sim cards so as to enable it to operate as a Multi Service Operator in the area.

5. The Respondent allegedly demanded a sum of Rs. 8,57,695/-towards the purported dues of all Cable Operators payable by its authorized distributor i.e. M/s. Shanti Vision Communication contending that if no payment in respect thereof is made, signals would not be supplied.

6. The Petitioner agreed thereto and paid the said amount through various cheques in installments; the first of which was made by way of a Demand Draft bearing No. 741975 and the second was for a sum of Rs. 11,030/-by Demand Draft No. 741976.

7. By reason of four post-dated cheques, the Petitioner sought to make the remaining outstanding payments of the sum of Rs. 5,57,695/-.

8. A Memorandum of Understanding was entered into by and between the parties herein.

9. According to the Petitioner, a standard interconnect agreement was also entered into on the same day but the copy thereof had not been handed over to it. It, however, stands admitted that the Petitioner was given decoders and sim cards for which a gate pass dated 18.4.2009 was issued.

10. The Petitioner thereafter made several payments to the Respondent being sums of Rs. 1,07,695 on 5.5.2009, 1,23,536 on 30.06.2009 but despite the same, the balance amount payable in terms of the said MoU was increased from Rs. 4,50,000/-to Rs. 5,00738. It, however, now transpires that the said bills were rectified.

11. Admittedly, the signals of the Respondent from July, 2009 were to be transmitted through MPEG4 technology in stead and in place of MPEG2 technology. Decoders were also issued to the Petitioner. According to the Petitioner it paid a sum of Rs. 4,50,000/-by a demand draft under the said MoU dated 18.04.2009 but the post dated cheques were not returned.

12. Allegedly, for the months of June and July, 2009, no invoice was issued. However, according to the Petitioner it paid the subscription fee on or about 30th July, 2009. The Petitioner contends that it had opted for addition of Udaya Bouquet also which was given to it on 28.08.2009. According to the Petitioner despite the fact that no amount was due, it had been shown in the invoice that the balance amount payable by it was Rs. 50,738.

13. Inter alia, on the premise that reconciliation of the accounts between the parties was necessary, the parties admittedly met on 3.9.2009. On the said date the Petitioner allegedly was made to sign some blank documents. According to the Petitioner the said blank documents were converted into the minutes of meetings as well as a purported undertaking by the Petitioner by way of an affidavit admitting that he had illegally collected sums of Rs. 6,84,400/-and 25,25,526/-from the Link Operators in respect of the MS Os M/s. Citi Cable and M/s. Shanti Vision Communications respectively.

14. The parties admittedly again met on 18.09.2009. In that meeting an allegation was made that five more cable operators had joined the Petitioner.

15. According to the Petitioner, Cable Operators joined its network on or about 15.4.2009 with an express undertaking that they do not owe any money to anyone including the MS Os or authorized distributor of the Respondent.

16. Allegedly, at the time when the meeting had been taking place, the representatives of the Respondent directed disconnection of its signal which was said to have been complied with.

17. The Respondent malafide had raised an invoice for the month of September 2009, wherein it continued to show a sum of Rs. 56,207.58 as due under the balance column and also added Rs. 14,025 towards the subscription fee of Udaya bouquet twice in the current bill making the total amount payable by the Petitioner as Rs. 1,48,914.74.

18. On or about 30th September, 2009 the signals were switched on after the Petitioner filed the said petition No. 202 (C) of 2009 and after an order was passed on the said date to the effect that the Respondent may inspect its premises. A copy of the agreement allegedly was supplied to the Petitioner only on 1.10.2009, on a perusal whereof the Petitioner found that in stead of 18 cable operators, the Respondent had shown that it would serve only in the three areas specified therein.

19. The Petitioner filed a complaint against the Respondent at the local police station on 07.10.2009.

20. The Petitioner received an invoice in the month of October, 2009 wherein a sum of Rs. 2,92,450.74 was claimed which included an amount of Rs. 1,37,975.58 in respect of which no basis or justification whatsoever was disclosed.

21. The Petitioner sent two demand drafts for the amount of Rs. 77,238 each on 2.11.2009. Its signals however, remained disconnected from 18.9.2009 to 30.09.2009 but despite the same another public notice was issued on 7.11.2009 inter alia on the premise that the Petitioner had collected a sum of Rs. 25,25,526 and Rs. 6,84,000 from the local cable operators of M/s. Shanti Vision and M/s. Siti Cable respectively.

22. The Petitioner filed an application for amendment of the petition purported to be under Order VI Rule 17 of the Code of Civil Procedure, 1908 inter alia questioning the issuance of the aforementioned notices dated 7.11.2009 under clauses 4.1 and 4.3 of the Regulations. Keeping in view the fact that the said application for amendment was in relation to the events subsequent to the filling of the petition, the same was directed to be treated as a fresh petition.

23. The Respondent, however, in his reply inter alia contended that the Petitioner had full knowledge of the minutes of meeting dated 3.09.2009 as also 18.9.2009 and it is wrong to contend that some blank papers had been obtained from him. The Petitioner although had been supplied with the copy of the agreement dated 18.4.2009 on or about 29.5.2009, but the same had again been supplied during pendency of this proceeding. The total number of pages of the said agreement was 13 which was acknowledged by it.

24. As the MS Os of the Respondent had been suffering badly owing to the acts of omission and commission on the part of the Petitioner, a meeting was called on 5th September, 2009 in the presence of the representatives of other MS Os namely M/s. Citi Cable and M/s. Shanti Vision Communication.

25. 15A minute of meeting was drawn up, from a perusal whereof it would appear that the Petitioner undertook to pay the for illegal transmission of the channels. He moreover stated that it would enhance its subscriber base.

26. Another meeting was held at Chennai on 18.9.2009. It is contended that signals were not directed to be switched off in his presence nor he refused to make payments in terms of the purported minutes of meeting dated 3.9.2009. According to the Respondent, the parties had again met on 13.12.2009 i.e. during the pendency of this petition wherein the Petitioner once again admitted that it had to pay to the Respondents towards the dues of M/s. Shanti Vision and Citi Cable. Although another meeting was fixed on 4.1.2010 but the Petitioner did not attend the same.

27. It was only then that the Respondent issued the letter dated 11.1.2010 asking the Petitioner to pay a sum of Rs. 47,24,869/-, on receipt whereof it by its letter dated 9.2.2010 that it had in fact agreed to pay a sum of only Rs. 10,00,000/-. So far as Udaya bouquet channel is concerned, according to the Respondent, the same had in fact been a subject matter of the agreement but as the Petitioner was not in a position to pay the subscription fee for the said bouquet, no invoice was raised and in August 2009, the same was supplied to the Petitioner when it asked for the decoders thereafter, whereafter only the invoices were raised.

28. The Petitioner in support of the petition has examined its proprietor.

29. The Respondent has also examined one witness namely its Manager (Operation), Shri Samuel Rajan.

30. With a view to consider the submissions in regard to the question formulated at the outset, we may notice that in Petition No. 202(C) of 2009 PW1 Sunder Rajan was cross-examined thoroughly.

31. At the end of his cross examination the following question was put to him:

Are you aware of the contents of the affidavit ; and the answer thereto was 'I don't know'. No
further question was thereafter asked.
32. Yet again, in Petition No. 202 (C), a question was put to him in cross examination on the same day as to whether he was aware of the contents of the affidavit to which he replied in the negative.

33. We may at the outset notice the submissions of the learned Counsel in this behalf.

34. According to Ms. Sibbal, the Petitioner having accepted that he was not aware of the contents of the affidavit and having regard to the provisions of Section 59 as well as Sections 101 and 102 of the Indian Evidence Act, the Petitioner must be held to have not proved its case and on that ground alone, the petition should be dismissed.

35. Mr. Navin Chawla, the learned Counsel appearing on behalf of the Petitioner, on the other hand, would contend that the Evidence Act contains a large number of provisions relating to the manner in which evidence can be adduced.

36. Sections 137 and 138 speaks of 'Examination in Chief' and 'Cross Examination' and if certain statements are made in the cross examination, the same should itself be treated to be an evidence.

37. It is however, conceded that if a witness at the outset states that he was not aware of the statements made in the affidavit and no further question is put to him in cross examination, it may be held that the Petitioner has not been able to prove its case in accordance with the provisions of the Indian Evidence Act.

38. We are inclined to agree with the submission of Mr. Chawla.

39. The Evidence Act was enacted to consolidate, define and amend the law of evidence. Evidence is required to be adduced to prove the 'fact in issues'. We may notice the definition of certain terms as contained in Section 3 of the Evidence Act:

3. Interpretation clause -In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:

"Fact in issue" -The expression "facts in issue" means and includes-any fact from which, either by itself or in connection with other fact, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows.

"Evidence" -"Evidence" means and includes

(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence.

(2) All documents produced for the inspection of the Court; such documents are called documentary evidence.

"Proved" -A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists.

"Disproved" -A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

"Not proved" -A fact is said not to be proved when it is neither proved nor disproved.

Evidence on 'fact in issue' and 'relevant facts' are required to be adduced for proving, disproving or not proving the same.

40. Section 5 provides that evidence may be given of facts in issue and relevant facts. Other provisions state as to what would be the relevant facts etc. Section 59 occurring in Chapter IV of the provides for 'proof of facts by oral evidence'. In term of the said provision all facts except the contents of documents or electronic records may be proved by oral evidence.

41. Section 61 provides for proof of contents for documents. Section 62 provides for primary evidence and Section 63 for secondary evidence.

42. Section 101 provides for 'burden of proof' which reads as under:

101. Burden of Proof -Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence to facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

43. Section 102 provides on whom the burden of proof lies.

44. Section 106 provides for burden of proving facts specially within the knowledge of a person. Section 137 and 138 reads as under:

137. Examination-in-chief -The examination of a witness, by the party who calls him, shall be called his examination-in-chief.

Cross-examination -The examination of a witness by the adverse party shall be called his cross-examination.

Re-examination -The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

138. Order of examinations -Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts but the cross-examination need not to be confined to the facts which the witness testified on his examination-in-chief.

Direction of re-examination -The re-examination shall be directed to the explanation of matters referred to in cross-examination, and if new matter by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

45. Before the amendment of the Code of Civil Procedure in the year 1999, a witness even for the purpose of examination in chief was required to be examined before court or before a commissioner who could be appointed for the aforementioned purposes.

46. In terms of Order XVIII Rule 4 of the Code of Civil Procedure however, the evidence by way of examination in chief is required to be produced by way of affidavit.

47. Once an affidavit is tendered in evidence, the other side is entitled to cross examine the witnesses.

48. The question as to whether the said provisions are ultra virus or not came up for consideration in Ameer Trading Corporation Lt. v. Shapoorji Data Processing Ltd. reported in  2004 (1) SCC 702 , wherein a Division Bench of the Supreme Court of India held that the said provisions are workable. Validity of the said provision was also questioned in Salem Advocates Bar Association Case in 2003 wherein also the validity thereof has been upheld.

49. Ameer Trading (Supra) was followed by the Supreme Court of India in Radhey Shyam Garg v. Naresh Kumar Gupta  2009 (13) SCC 201 wherein it was held as under:

13. A three-Judge Bench of this Court in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd.1 held as under: (SCC p. 707, paras 13-17)

13. The other sub-rules of Rule 4 of Order 18 provide for other and further procedures as regards examination of witness.

14. Rule 5 refers to the evidence which is required to be taken in cases where the appeal is allowed in contradistinction with the cases where appeal is not allowed as envisaged in Rule 13 of Order 18 of the Code of Civil Procedure. Rule 5, therefore, envisages a situation where the court is required to take down evidence in the manner laid down therein which would mean that where cross-examination or re-examination of the witness is to take place in the court.

15. The examination of a witness would include evidence-in-chief, cross-examination or re-examination. Rule 4 of Order 18 speaks of examination-in-chief. The unamended rule provided for the manner in which 'evidence' is to be taken. Such examination-in-chief of a witness in every case shall be on affidavit.

16. The aforementioned provision has been made to curtail the time taken by the court in examining a witness-in-chief. Sub-rule (2) of Rule 4 of Order 18 of the Code of Civil Procedure provides for cross-examination and re-examination of a witness which shall be taken by the court or the Commissioner appointed by it.

17. We may notice that Rule 4 of Order 18 as amended with effect from 1-7-2002 specifically provided thereunder that the examination-in-chief in every case shall be on affidavit. Rule 5 of Order 18 had been incorporated even prior to the said amendment.

50. It is true as had been contended by Ms. Sibbal that onus of proof primarily is on the Petitioner having regard to the provisions contained in Section 101 and 102 of the Indian Evidence Act.

51. However, we may notice that in Anil Rishi v. Gurbaksh Singh 2006 (5) SCC 558 , the Supreme Court of India has held as under:

19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways:

(i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later;

(ii) to make that of establishing a proposition as against all counter-evidence; and

(iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the Plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the Defendant to prove those circumstances, if any, which would disentitle the Plaintiff to the same.

51. This Tribunal also in petition No. 151 (C) of 2008, M/s. Indian Cablenet Company Ltd., Kolkata Dumdum Cable TV Network disposed of on 18.12.2009, held as under:

15. The Petitioner having filed this petition is legally bound to prove the same in terms of the provisions contained in Section 101 of the Evidence Act. The burden of proof, thus is on it.

It is now well settled that when the onus of proof is on the Plaintiff a suit cannot be decreed only on the basis of weakness of the defence of the Defendant.

52. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesarawami & V.P. Temple  AIR 2003 SC 4548 the law was stated in the following terms:

29. In a suit for recovery of possession based on title it is for the Plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the Defendant from his possession over the suit property and for the possession to be restored to him. However, as held in Addagada Raghavamma v. Addagada Chenchamma there is essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the Plaintiff has been able to create a high degree of probability as to shift the onus on the Defendant it is for the Defendant to discharge his onus and in the absence thereof the burden of proof lying in the Plaintiff shall be held to have been discharged so as to amount to proof of the Plaintiff's title.
53. However, the question as to whether as to whether keeping in view the fact that the statement made before this Tribunal would be 'evidence', Mr. Chawla, in our opinion is correct that the statements made by the Petitioner in his cross-examination should be treated as a valid evidence, as such statements had been made before this Tribunal on oath.

54. There is another aspect of the matter which cannot be lost sight of. In a given case, a party to a lis may rely upon the admissions made by the other, either in the pleadings and/or in documents which would itself be admissible in evidence.

55. One of the provisions, which can immediately be referred to for the said proposition, to our , is Section 58 of the Indian Evidence Act.

56. It is therefore, not always necessary that a party to a lis must prove its case or dispute the case of the other side only by adduction of oral evidence.

57. In certain cases as for example the cases under Order XXXVII of the Code of Civil Procedure, no oral evidence is required to be adduced. The court may even pass a summary judgment.

58. In certain cases, the right to begin may have to be exercised only by a Defendant having regard to the pleadings of the parties as also the documents upon which they rely upon.

59. The court may also pass a decree in terms of Order VIII Rule 10 of the Code of Civil Procedure or having regard to the deemed admission made in a pleadings in terms of Order VIII Rule 5 of the Code of Civil Procedure in a case where the proviso appended thereto is not resorted to.

60. Another preliminary objection has been raised that the second petition has not been verified.

61. Strong reliance in this behalf has been placed by Ms. Sibbal in The State of Bombay v. Purushottam Jog Naik reported in  AIR 1952 SC 317 , wherein it has been held as under:

16. In fairness to the Home Secretary we deem it right to say that his veracity was neither doubted nor impugned by the High Court, but only his means of knowledge. He was speaking of the "satisfaction" of the Minister and the High Court was not satisfied regarding his knowledge of the state of the Minister's mind. The learned Judges considered that the Minister himself would have been a more satisfactory source of information, but as we say, this is not a question of law. As a matter of abstract law, of course, the state of man's mind can be proved by evidence other than that of the man himself, and if the Home Secretary has the requisite means of knowledge, for example, if the Minister had told him that he was satisfied or he had indicated satisfaction by his conduct and acts, and the Home Secretary's affidavit was regarded as sufficient in the particular case, then that would constitute legally sufficient proof. But whether that would be enough in any given case or whether the "best evidence rule" should be applied in strictness in that particular case, must necessarily depend upon its facts. In the present case, there was the element that 57 cases were dealt with in the course of 6 days and orders passed in all on one day. But we do not intend to enter into the merits. All we desire to say is that if the learned Judges of the High Court intended to lay down as a proposition of law that an affidavit from the Minister in-charge of the department is indispensable in all such cases, then they went too far.
62. We may also notice the decision of Patna High Court in Dipendra Nath Sarkar v. State of Bihar and Ors. reported in  AIR 1963 Pat 54 , wherein it was opined:

5. ...

There is an affidavit of Sri N. P. Sinha, a clerk of the school, but this affidavit cannot be taken into account because Sri N. P. Sinha has no locus standi to file an affidavit. The affidavit of Sri N. P. Sinha is also defective because it does not clearly express as to how much is a statement of the knowledge of the deponent and how much is a statement of his belief, and there is hence violation of Order 19, Rule 3, Code of Civil Procedure.

On behalf of the Petitioner reference was made to the decision of the Calcutta High Court in Padmabati Dasi v. Rasik Lal Dhar ILR Cal 259, where Sir Lawrence Jcnkins. C. J. and Woodroffe, J. observed that the provision of Order 19, Rule 3 of the Code of Civil Procedure must be strictly observed, and where there is violation of that provision the affidavit must be ignored. I accept, the argument of the Petitioner and hold that no value should be attached to the affidavit of Sri N. P. Sinha.

63. We, however, in the facts of this case are of the opinion that the application for amendment of the petition having been verified, it was not necessary for the Petitioner to verify the pleadings again as the application for amendment was to be treated as a fresh petition. The Petitioner has acted on the order of the court and in that view of the matter neither any fresh affidavit nor any verification thereof was required to be made.

64. Another interesting question which arises for consideration is as to whether having regard to the fact that the Petitioner had sought for the original agreement from the Respondent asking it to produce the same and the same having been produced and inspection thereof has been given to the Respondent in terms of Section 163 of the Evidence Act, it is bound thereby.

65. The Petitioner was not only given an opportunity to inspect the original agreement but has also commented upon the correctness or otherwise thereof.

66. Can it be permitted to question the correctness thereof is the question. Section 163 of the Evidence Act reads as under:

When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.
67. There exists a volume of case laws on the aforementioned subject but no decision of the Supreme Court is available. We may just notice a few of them.

68. In Government of Bengal v. Santiram Mondal reported in  AIR 1930 Cal 370, it was held as under:

14. The learned Judge adds that it was not argued that the statements should be admitted under Section 74, Evidence Act, and he holds that these cannot be admitted in evidence as public documents. The opinion of the learned Judge touching the effect of Section 163, Evidence Act seems to be based upon the idea that the section can have no applicability to criminal trials, at any rate where the Crown is the prosecutor. There is, however, nothing to support this view, and no such limitation is to be found in the wording of the section itself. In the argument before us no such contention was sought to be upheld. The contention before us has been that Section 163 does not apply, having regard to the nature of the documents in question, though it is admitted that the other conditions specified in the section have been fulfilled. It is conceded that notice to produce was given to the Crown, that the defence called for the documents and they were thereupon produced and inspected, and, it may be added, they were mostly used for cross examining the several witnesses. It is, however, said that the section does not apply to this kind of document but that it necessarily contemplates only that class of document to which the party calling for it would have no access unless his opponent produces it, which is inaccessible because in the exclusive possession of the ether party. Then it is argued, these were not in the exclusive possession of the other side, because such statements, which were recorded de part mentally by a public officer in his executive capacity, cannot be said to be in the exclusive possession of the prosecution. This is tantamount to saying that the Crown as prosecutor is a different person from the Crown that had recorded the statements, and there is no substance in such contention. The Crown undoubtedly has exclusive possession of such a document, whether it be in one department or another. We are of opinion that it was not a judicial enquiry, nor was the evidence given upon oath, and it seems to us that no question arises of these statements being public documents, but that they were documents in which Section 163, Evidence Act, could properly be applied, and that the defence were bound to put them in. The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself 'says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits. Moreover the writing of the statements and the signature by the Magistrate have been proved. It is not a sufficient answer to say that in certain cases the witnesses were asked certain questions based upon these statements when re-examined by the prosecution, and that therefore the prosecution could have got in the whole of the statements in that way as evidence. They were entitled to have the statements themselves in evidence, they made every effort to do so, and they could not foresee the manner in which the learned Judge would place the matter before the jury.
Also in Union of India (UOI) v. Firm Vishudh Ghee Vyopar Mandal reported in AIR 1963 All. 689, it was held as follows:

6. Though we are allowing the preliminary objection to prevail and are clearly of the opinion that the order impugned is not re- visible we think it desirable, in view of the importance of the case, to state that, in our opinion, the Court below fell into an error in thinking that the documents could not be taken in evidence under Section 163, Evidence Act. We shall now proceed to state our reasons that the view taken by the learned Civil Judge in this matter is a mistaken one. The Special Police Establishment was created by Act 25 of 1946. Section 4 of that Act provides that the superintendence of the Delhi Special Police Establishment shall vest in the Central Government. It was, therefore, a department of the Union of India and under its control. As such the documents in the possession of the Superintendent of the Special Police Establishment were also under the control of the Union of India. Indeed, this was the position that the Plaintiff opposite-party had adopted all along in the case and at one stage of the case the Court below itself had held to the same effect. All the requirements of Section 163, Evidence Act were fulfilled in the case. Notice to produce the documents had been given by means of an application to the Court. The documents had been produced in compliance with the call of the Plaintiff as ordered by the Court and the documents had been inspected by the Plaintiff. The Plaintiff was, therefore, bound to give them as its evidence when required to do so by the Defendant. It was urged by Mr. Jagdish Swarup that the notice to produce mentioned in Section 163 is a private notice without the agency of the Court. He pointed out that the notice to produce as mentioned in Section 163 of the Evidence Act is the one which is mentioned in Order 12, Rule 8, Civil P. C. This contention is incorrect. That rule refers to a notice to produce documents "at the time of the hearing" so that if they are not produced, the party calling for them may give secondary evidence of the same. Another kind of notice to produce documents is the one mentioned in Order 11. It is a notice to produce documents 'before' the hearing of the case so that they may be inspected by the party calling for them. Section 163, Evidence Act mentions inspection of the documents of which notice has been given by a party to produce. Clearly notice to produce documents mentioned in Section 163, Evidence Act refers to a notice to produce documents as mentioned in Order 11, Civil P. C. Such a notice may be given by a party privately to the other party concerned and, if the other party does not produce the documents, an order of the Court for the production of the documents for inspection may also be made. The mere fact that the agency which has ordered the production of the documents is the Court is immaterial. Further, it was urged that the documents having been produced by a witness, they could nc-t fall within the category of documents contemplated in Section 163. As we have already pointed out, the documents were summoned by the Plaintiff from the Superintendent of the Special Police Establishment after an application to that effect had been made by the Plaintiff. As the Superintendent of the Special Police Establishment was an official of the Defendant and was under its control, the production of the documents by the Superintendent of the Special Police Establishment was a production by the Defendant itself and it was immaterial that a summons at one stage had been issued to him for their production. Even if the documents were assumed to have been produced by a witness and not by the Defendant, they were the Plaintiff's documents as they were filed in Court at its instance; and the Defendant could admit such of them as it liked and thereupon ask the Court to treat them as evidence in the case.
69. We may, however, notice that the decision of the Nagpur High Court in Kisan Ghule v. Puransa and Ors. reported in AIR 1928 Nagpur 119 touching the interpretation of Section 163 of Indian Evidence Act has not been held to be a correct law so far as its wide application is concerned in Phoolchand Garg v. Gopaldas Agarwal and Ors. reported in  AIR 1990 MP 135 .

70. However, in a case of this nature, where the genuineness of the original agreement had never been questioned and the Petitioner himself having called upon the Respondent to produce the same, which having been complied and a Xerox copy thereof being already on record, only because there exists handwriting of more than one person or more than one pen has been used, the same by itself, in our opinion, would not mean that the said agreement is not a genuine one.

71. We may notice that in Cross and Taper on Evidence at page 323 under the heading 'Cross Examination' on documents generally, it is stated as under:

But there are situations in which a document may become evidence of the facts stated in it by virtue of the common law rules concerning cross-examination. If, at the trial, a party calls for and inspects a document held by his document was not being used to refresh the memory of one of the adversary's witness. If the document was being used for this purpose, neither the inspection, nor cross-examination on such parts of the document as were used to refresh memory, makes it evidence in the case, though cross-examination on other parts will have this effect.
72. In view of the aforementioned legal position, we are of the opinion that the Petitioner cannot be permitted to question the genuineness of the original agreement. It is bound thereby.

73. In terms of the said agreement the Petitioner was to make payments. The terms and conditions contained in the said agreement having not been questioned, it must be held to be bound thereby. Even otherwise, the agreement was preceded by a meeting.

74. The minutes of the said meeting cannot also be seriously disputed. The Petitioner, in fact did not do so at any point of time prior to filing of the petition.

75. In terms of said minutes of meeting the Petitioner agreed to pay a sum of Rs. 8,57,695 in installments as specified therein. The rate of subscription fee as also the subscriber base is not in dispute. The only dispute is that one extended page was there in the agreement. It was also contended that Udaya Bouquet could not have formed part of the agreement when no decoder therefore was supplied.

76. We find that the Respondent has assigned sufficient explanation therefor. We may also notice some other circumstances in this regard.

77. So far as the purported list of 18 cable operators is concerned, it did not form part of Petition No. 202 of 2009. It was filed only on 21.5.2009. It, having received a 13 paged document, could not have said that there was an extra page which contained another schedule namely the list of the cable operators.

78. Even the Petitioner in its letter dated 2.10.2009 did not raise any such contention.

79. We may notice the same:

Hereby I would like to put it to your notice that the Copy of the Agreement received from Channel Plus on 30.09.2009 carries a malafide copy of Annexure-1, i.e. (List of Sub-Operators & Affiliates). Details of the Subject are furnished as follows.

As per the agreement entered into by us on 18.04.2009, the declaration on the list of Sub-Operators & Affiliates i.e. in Annexure-1 was for 18 operators and the same was listed in two sets of Annexures (i.e. 2 Nos. of papers - 1. With list of operators & an empty annexure paper), duly signed by us. Whereas the Agreement Copy which we have received now after approaching the Hon'ble TDSAT carries a wrongly placed/fabricated Annexure which states that the Agreement entered into by us was for 3 Sub-Operators only.

At the time of entering into the Agreement, we had signed the empty Annexure which was based on your false assurance, suggestion & guidance that the blank annexure can be used for future processing, (i.e. for addition of new operators, if any). We find that, the same blank annexure has been mis-used/fabricated by M/s. Channel Plus, since we had approached the Hon'ble TDSAT for the dispute which has arisen between us. Further the invoice received by us carries the billing amount of Rs. 61,768/-which is the subscription fee payable for 18 operators as agreed between us.

However, as per the agreement copy received by us on 30.09.2009 states that, the subscription amount is only for 3 operators. We completely deny the Annexures sent with the Agreement and request you to please rectify your mistake and send us the correct Annexure which was signed by us while entering into the Agreement showing the 18 Cable Operators who are affiliated to us.

80. We have noticed hereto before that he has received the copy of the agreement on 1.10.2009. Mr. Samuel Rajan in his evidence stated that he was present when the agreement was signed. His presence in our opinion cannot be doubted. It was expected of the Petitioner that at least with its letter dated 2.10.2009, it would annex the list of 18 cable operators.

81. It did not do so.

82. It has been brought on record that some of the cable operators whose name find place in the list were the cable operators of other MS Os. It appears to be so from the affidavit of one Mr. Sunder Rajan wherein he stated as under:

I, Mr. Sundar Rajan, aged about 34 years, having office at A1 Digital Vision, 107/14/74, Near Shanthi Nagar, Railway Station Road, Hosur, do hereby solemnly affirmed and sincerely state as follows:

1. I state that I am the deponent herein

2. I state that I am the proprietor of M/s A1 Digital Vision, and I am operating my network in Hosur town.

3. I state that I have illegally given the signals to the link operators of Mr. Velu, proprietor of City Cable Vision, Hosur, who are as below:

a. Murali of Mookandapalli

b. Mr. Rajini of Chinna Elasagiri

c. Mr. Kantharaj of Muneshwar Nagar

d. Mr. Dayalan of Shantha Puram

_______ I have collected the subscription due amount of Rs. 6,84,40/-from the above said link operators.

4. Further I have illegally given the signals to the link operators of Mr. Tamilselvan Proprietor of M/s. Shanthi Vision Communication and I have collected the amount of Rs. , 25,25,526/-from the link operators of Shanthi Vision Communication.

5. I hereby agree to pay the above said amount of Rs. 6,84,400/ and Rs. 25,25,526/-to Channel Plus-TN on or before 5th September 2009, which I have collected from the link operators.

6. I state that I will legally enhance the points for the above said link operators of city cable vision and further agree to take over the network of Shanthi Vision Communication (Account I D 10006281).

7. I hereby undertake to enter the fresh agreement and to pay the monthly subscription amount in future without fail.

83. We may notice that the purported list of cable operators which is at page 74 of Petition No. 54 of 2010, the name of Mr. V. Murali finds place in the name of Kishan Star Vision.

84. However, in the meeting dated 3.9.2009, an admission was made by the Petitioner that it was an operator of Citi Cable. Similarly names of other operators being Mr. M. Rajani, serial No. 4 vis-à-vis serial No. 3(B) of the affidavit dated 3.9.2009 (wrongly stated as 3.08.2009) Mr. Kantraj whose name appears at serial No. 6 vis-à-vis serial No. 3(C) of his affidavit, Dayanan serial No. 7 vis-à-vis serial No. 3 (G) of his affidavit.

85. The veracity of the said affidavits have not been questioned.

86. A presumption can also be raised in regard thereto as signature of the Petitioner appears immediately after the typed portion was over.

87. A wrong date was mentioned namely 4th September, 2009 in stead and in place of 3rd September. He not only had corrected the same but has put his signature against those corrections. Mr. Chawla very fairly stated that the date mentioned below the affidavit of the petition as 3.8.2009 was a mistake. If that be so, we find no reason to disbelieve the minutes of the meeting or the affidavit in question.

88. So far as the question of service of the agreement is concerned, according to the Respondent a copy thereof had been served on the Petitioner by hand.

89. The endorsement by the Petitioner to that effect is as under:

Please find enclosed the copy of the subscription agreement No. 464 dated 18.04.09 duly signed by you and Channel Plus (A Unit of KAL Cables Pvt. Ltd.) for your records.

Please sign this letter as acknowledgement of receipt of Agreement and hand it over to our distributor/executive or alternatively you can courier it to our Channel Plus office at No. 4, Norton Road, Mandeveli, Channai 600028.

If we do not receive the acknowledgement within fifteen days from the date of this letter, the Agreement shall be deemed to have been acknowledged and accepted by you.

Should you have any clarification please feel free to call us at 044-24648181.

90. Had there been another annexure appended to the agreement, it would have been a 14 paged document. The Respondent again sent a copy thereof in terms of our order on 1.10.2009. The signature of the Petitioner of the same date also appear.

91. There are certain other circumstances which must also be taken note of. The Petitioner wrote six letters to the Respondent being dated 30.06.2009, 28.07.2009, 24.07.2009, 30.07.2009, 31.08.2009 and 19.09.2009.

92. If it had not received the copy of the agreement, it was expected that it could have made a statement in that regard in the said letters. It could have also said that an acknowledgement had been obtained by the Respondent by misrepresentation or otherwise as has been sought to be contended now. I did neither.

93. This takes us to the question in regard to the correctness of minutes of meeting dated 3.9.2009.

94. The memorandum of understanding refers to the affidavit of the Petitioner. The affidavit of Mr. Sunder Rajan, therefore, forms part of the said minutes of meeting.

95. It was attended by the representatives of Shanti Vision and Citi Cable also.

96. The Respondent, in its reply stated as under:

It is stated that the Respondent repeatedly requested the Petitioner to stop illegal transmission of the signals of the Petitioner. The Petitioner assured the Respondent that it would not indulge in piracy or illegal transmission of the signals of the Respondents' channels. It is stated that the Petitioner and the Respondent in a meeting held between the parties on 03.09.2009 discussed the issue of illegal transmission. It is stated that in the said meeting the sole proprietor of the Petitioner, Mr. Sundar Rajan, admitted to the fact that the Petitioner was illegally pirating the signals of the Respondents channels to the link operators of Mr. Velu who is the proprietor of a MSO, City Cable Vision, Hosur. He has also admitted that he had collected the subscription due amount of Rs. 6,84, 400/-from the link operators of the said entity (City Cable Vision), which was actually payable to the Respondent. Mr. Sunder Rajan also admitted that he had illegally given signals to the link operators of Mr. Tamilselavn, who is the proprietor of another MSO, M/s. Shanthi Vision Communication and had collected the amount of Rs. 25,25,526/-from the link operators of Shanthi Vision Communication. It is stated that on the assurance that the Petitioner would stop indulging in piracy and further pay for the loss suffered by the Respondent, the Respondent did not initiate any further action in this regard against the Petitioner. A copy of the minutes of the meeting dated 3.09. 2009 and the affidavit of the Petitioner dated 3.9.2009 is annexed herewith and marked as Annexure R-2.
97. There does not exist any dispute as regards the fact that a meeting had in fact taken place.

98. Before, however, reverting back to the legal contentions of Mr. Chawla, we may notice that it is difficult to agree with him that minutes of meeting is a fabricated document. Mr. Chawla would contend that had such a meeting taken place, the Respondent would have mentioned thereabout in its letter dated 6.11.2009. The affidavit purported to have been affirmed according to Mr. Chawla could also have been referred to therein.

99. If the contention of the Respondent is correct that the Petitioner had started expansion of its business on a large scale and in fact had been transgressing into the areas of other cable operators who had also been taking supply of signals from the Respondent, authenticity of such a meeting cannot be brushed aside.

100. The affidavit affirmed by the Petitioner is a genuine document. In any event the Petitioner has not brought on record any convincing evidence to displace the genuineness and/or authenticity thereof.

101. The Petitioner, however states that another meeting took place on 18.09.2009. Allegations in regard thereto have been made in paragraph 16 of the petition. Apart from the fact that the statements contained in the said paragraph alongwith other paragraphs have been verified as true to be correct to the knowledge of the deponent derived from the records, no other statement had been made. Verification of the petition is, thus, not in accordance with the law.

102. The Petitioner, in our considered opinion, cannot be permitted to brush aside the documentary evidence brought on record by the parties only upon raising a contention in the petition and that too not a properly verified one that no meeting had taken place, apart from the fact that the Respondent denies and disputes the said statement.

103. The Petitioner makes a bald allegation that its connection was switched off by some officer in his presence. No evidence in relation thereto has been adduced.

104. The Petitioner had issued a letter on 19.9.2009 wherein it stated as under:

With reference to the above we are here to inform you that we have taken the decoders with agreement from you on 18.04.2009, as per agreement we are running your channel from the day with good relationship with correct payments. But without any information you had switched off the channel, after that when I spoken to in your office at Chennai you have told that pending of outstanding for some operators. But that operators is from our group only they left with our competitors and they came back now. Before agreement we informed and with permission and encouragement only we have taken the decoders from you, so this earlier discussed or not brought in to our notice till date you switch off the channels, so at the outside we would kindly request your good office to switch on channels, which is went off.
105. No allegation has been made that the signals were switched off. It refers to a phone call; the date and time of making the call was not specified. If such a phone call had been made, there could not have any occasion for switching off the supply of the signal. In the said letter also the Petitioner did not make any allegation that it had gone to the office of the Respondent on 18th September 2009 or if so, what had transpired on that date. He also did not say about any signature put by him on any blank paper.

106. According to the Respondent, however, its signals were not switched off as in fact its representative visited the head end of the Petitioner on 30th September and found the signals to be on.

107. There are certain events subsequent to the filling of the petition which should also be taken note of. On or about 30th December, 2009 a meeting between the parties had taken place. The minutes of the meetings have been filed by the Respondent. It reads as under:

Both the parties appeared and discussed regarding pending Subscription Dues of Sun Group Channels & MSM Discovery Channels and various Ground problems in their areas.

Mr. Samuel Rajan requested them to pay the pending subscription due amount towards the areas of M/s Shanthi Vision Communication and M/s. Citi Cable (Hosur) in which they are providing Signals without getting any authorization from us and also we requested them to pay the pending subscription due amount of M/s A1 Digital Vision areas. Mr. Sundarrajan agreed to pay the same.

Finally they agreed to meet us on 04.01.2010 (Monday) along with the details of installments regarding the payments of pending dues.

108. The Petitioner was not only represented by Mr. Sunder Rajan, its proprietor, but also by Mr. Senthil and Mr. Durai.

109. The request of Mr. Samuel Rajan RW-1 to the Petitioner was to pay the subscription fee towards the arrears of M/s. Shanti Vision Communication and Citi Cable Mr. Sunder Rajan agreed to pay the same. The correctness of the said minutes of meeting is not in dispute. An admission on certain contractual obligations can also be made even during pendency of the petition.

110. The parties agreed to meet again on 4.1.2010. It is true that the minutes of meeting does not refer to any specified amount. That would not in our considered opinion take away the value of an admission with regard to the contractual liability of the Petitioner. The Petitioner has admitted a contractual liability in regard to its transgression in the areas of Shanti Vision Communication and Citi Cable. The Petitioner, however, did not come back to the Respondent on 4.1.2010.

111. It is in the aforementioned situation, the Respondent issued a letter on 11.1.2010. It was sent by speed post. Receipt of the said letter is not in dispute. It reads as under:

You are aware that in the meeting dated 03.09.2009, you have agreed your piracy and you had given affidavit in which you have committed to pay sum of Rs. 25,25,526/-against the piracy in the areas of M/s. Shanthi Vision Communication and Rs. 6,84,400/-against the piracy in the areas of M/s. City Cables. But you have not paid the said due amounts as per affidavit. Thereafter you have illegally extended your areas of operations in another 10 areas of M/s. City Cables. Despite of several request and reminders made by us you had not come forward to settle the same.

On 30.12.2009, you came for a meeting in which you have agreed to pay all your pending dues, towards the areas in which you are illegally providing signals and also agreed to pay the monthly subscription dues as per our agreement dated 18.04.2009. In the said meeting you have promised us that you will come for next meeting on 04.01.2010 along with details of installments for the payment of all your pending dues for both authorized and unauthorized areas, but you had not turned back to us till date.

You are hereby called upon to settle an amount of Rs. 47,24,869/-arrived as below:

1. Commitment of Rs. 25,25,526/-as per affidavit dated 03.09.2009 towards unauthorized collection in the areas of M/s. Shanthi Vision Communication.

2. Commitment of Rs. 684,400/-as per affidavit dated 03.09.2009 towards unauthorized collection in the areas of M/s. City Cables. Further a sum of Rs. 3,32,250/-from September 2009 to January 2010.

3. Rs. 9,52,014/-towards unauthorized collections in the area of City Cables (A/c I D 10000104) for above said 10 areas.

4. Rs. 2,30,679/-towards contract signed with A1 Digital Vision, (A/c I D: TN 0045519).

112. The Petitioner did not reply to the said letter immediately.

113 . Mr. Chawla, however, has drawn our attention to the proceeding sheet dated 5th February, 2010 from a perusal whereof it appears that the parties have been directed to meet again on 8.2.2010 in the office of the Respondent for carrying out their talks of settlement. It does not help the cause of the Petitioner as it had not been the case of the Petitioner that such a meeting had taken place on 8.2.2010.

114. In fact the parties were again directed to meet each other on 8th February, 2010 is itself a pointer to show that some meeting had taken place earlier; particularly when the fact that a meeting was held on 30 December, 2009 is not in dispute.

115. If the Petitioner was to meet the Respondent on 8th February, 2010 we fail to understand why it has sent a letter almost after one month from the date of receipt of the Respondent's letter dated 11.1.2010. For the first time therein it purported to have stated that it had accepted its liability only to the extent of Rs. 10,00,000.

116. It is evidently an after thought.

117. On what basis an admission with regard to his liability was made has not been explained in the said letter or otherwise. Such an admission also points out that in fact the Petitioner had transgressed into the areas of other LC Os without any authorization on the part of the Respondent herein. The Petitioner accepts its liability but merely reduces the amount in question.

118. Having regard to the conduct of the parties, both before filing of the petition as also subsequent thereto, in our opinion, a case is clearly is made out that the Petitioner had admitted its liability.

119. Mr. Chawla had raised a contention that nothing has been pointed out as to whether the MS Osin question namely Shanti Vision and Citi Cable had been taking supply of signal from the Respondent only or they had been taking supply of signal from other broadcasters also. It may or may not be correct. Ordinarily a person who had entered into a contract cannot be asked to pay any amount for the dues of others but the Petitioner probably knew that there were two options open to it, one to pay the dues and arrive at a settlement and the second, its supply of signal would be switched off on the ground of piracy.

120. The Petitioner admitted to have transgressed the areas of which it was not authorized, its signal could have been switched off on that ground alone. The Petitioner merely sought to get rid of such an eventuality.

121. We, therefore, are of the opinion that in the facts and circumstances of this case, the action on the part of the Respondent may not be held to be incorrect so far as issuance of the notices under Regulation 4.1 and the public notice under Regulation 4.3 is concerned.

122. The Petitioner has not made out any case for interference with the Respondents' action in this behalf.

124. This petition is dismissed accordingly leaving the Respondent and/or other options of recovery of the amount due from the Petitioner by separate proceeding(s).

125. We, however, make it clear that we have not gone into the question of the amount due from the Petitioner vis-à-vis M/s. Shanti Vision and Citi Cable.

126. The Petitioner, however, must pay the amount directed to be paid by this Tribunal for consumption of the signals of the channels of the Respondent. In the event, any payment has been made, the same will have to be adjusted. The Respondent may also adjust the amount of Rs. 15,00,000 towards its past dues in accordance with law.

127. For the reasons aforementioned, there is no merit in these petitions. They are dismissed accordingly. However in the facts and circumstances of the case, the parties would pay and bear their own costs.