Page No.# 1/10 GAHC010135232025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/273/2025 ANDREW YULE AND CO. LTD. AND ANR A GOVERNMENT OF INDIA ENTERPRISE AND LIMITED COMPANY CONSTITUTED UNDER THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE AT YULE HOUSE, 8, DR. RAJENDRA PRASAD SARANI, KOLKATA, WEST BENGAL, PIN-70001 AND IS BEING REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, SRI DIBYA JYOTI NEOG, ASSISTANT GENERAL MANAGER, KHOWANG TEA ESTATE. 2: THE MANAGER KHOWANG TEA ESTATE P.O- KHOWANG DISTRICT- DIBRUGARH ASSAM PIN-78567 VERSUS HEY KRISHNA BHAGAWAN SERVICE STATION SITUATED AT NEW KHOWANG, P.O AND P.S KHOWANG, DISTRICT- DIBRUGARH, ASSAM, PIN-785675, REPRESENTED BY ITS SOLE PROPRIETOR, SRI BANI KANTA CHUTIA, SON OF LATE SUNARAM CHUTIA, R/O MORAN, KUSHAL NAGAR, P.O AND P.S MORAN, DIST- DIBRUGARH, ASSAM, PIN-785670 Advocate for the Petitioner : MR SISHIR DUTTA, MR S DUTTA,MS K BORAH,MR. S DUTTA,MS S MOCHAHARI,MR. A BISWAS Advocate for the Respondent : Page No.# 2/10 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 25.07.2025 Heard Mr. S. Dutta, learned senior counsel assisted by Mr. A. Biswas, learned counsel for the petitioners. 2. In this petition, under Article 227 of the Constitution of India read with Section 151 of the CPC, the petitioners, namely, Andrew Yule & Company Limited and the Manager of Khowang Tea Estate, have challenged the order dated 19.03.2025, passed by the learned Civil Judge (Senior Division), Dibrugarh (trial court hereinafter), in Misc. (J) Case No. 261/2024, arising out of Commercial Suit No. 03/2024. 3. It is to be noted here that vide order dated 19.03.2025, the learned trial court had allowed the application filed by the respondent under Order 38 Rule 5 read with Section 151 of the CPC. 4. Mr. Dutta, learned counsel for the petitioners, submits that the respondent herein, as plaintiff, had instituted one commercial suit, being Commercial Suit No. 03/2024, for recovery of a sum of Rs. 40,91,060/-. Thereafter, the petitioners herein entered appearance and filed written statement, denying the entire claim as raised by the respondent as the plaintiff. Thereafter, on 17.09.2024, the respondent herein filed an application, before the learned trial court, under Order 38 Rule 5 read with Section 151 of the CPC, for directing the petitioners herein to furnish security to the extent of value of Rs. 40,91,060/- in order to satisfy the decree and the same was registered as Misc. (J) Case No. 261/2024. In the said petition, the plaintiff/respondent herein had relied upon Page No.# 3/10 two newspaper reports dated 28.08.2024, published in The Sentinel and in The Assam Tribune along with one downloaded YouTube news video of the Cross- Current, dated 28.08.2024,which indicates that the petitioners herein are suffering from acute financial crisis and going to sell all its tea garden and that the Assam Tea Employees Provident Fund Organization has proposed to sale the tea gardens operated by the petitioner No.1. 4.1. Mr. Dutta further submits that thereafter, the petitioners herein had filed objection in the said Misc. (J) case by contending that the entire Tea Estate was under the Management of the Central Government and intercommunication amongst various wings of the State and the Central Government was going on to rescue the entire Tea Industries. It was also contended that the newspapers items in question were mere speculative and expression of opinion and hearsay and that the said newspaper reports did not contain the expressions or statements of the management of the petitioners herein. But, the learned trial court, vide impugned order dated 19.03.2025, had allowed the said Misc. (J) case by directing the petitioners herein to deposit 50% of Rs. 40,91,060/- as security, in the form of bank guarantee, within a period of one month from the date of the order. 4.2. Mr. Dutta further submits that on a perusal of the petition filed by the respondent, under Order 38 Rule 5 read with Section 151 of the CPC, it appears that the respondent had miserably failed to bring on record any cogent reason apart from the newspaper reports and the YouTube video to satisfy any of the ingredients specified under Order 38 Rule 1 of the CPC, i.e. (a) the defendant was about to dispose of the property and (b) the defendant was about the remove the property from the jurisdiction of the court so as to enable the learned trial court to exercise its power under Order 38 CPC and as such, the Page No.# 4/10 impugned order so passed by the learned trial court is liable to be set aside. 4.3. The further submission of Mr. 4.3. The further submission of Mr. Dutta is that the learned trial court had miserably failed in accepting the contents of the two newspaper reports and the downloaded YouTube video as sufficient proof as required under Order 38 Rule 1 of the CPC in spite of the existence of the settled position of law that a newspaper report is not only a document referred to under Section 78 of the Evidence Act, but also that the same is only considered as a hearsay secondary evidence, which cannot be accepted in evidence without any collaborative evidence about its content. As such, the satisfaction, so arrived at by the learned trial court with regard to the fact that the petitioner was about to dispose of the property or about to remove the property outside the jurisdiction of the learned trial court and therefore, the impugned order dated 19.03.2025, is liable to be set aside and quashed. 4.4. Mr. Dutta also submits that while passing the said order, the learned trial court had failed to take note of the ratio laid down by Hon’ble Supreme court in the case of Laxmi Raj Shetty vs. State of Tamil Nadu, reported in AIR 1988 SC 1274, wherein it has been held that “We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proven by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved.....” Under such circumstances, it is contended that the impugned order suffers from manifest illegality and therefore, the same may be set aside and quashed. 4.5. Mr. Dutta also referred to the following decisions:- Page No.# 5/10 (i) Raman Tech. & Process Engg. Co. and Another vs. Solanki Traders, reported in (2008) 2 SCC 302; (ii) Pradyut Sarma and Others vs. Assam Public Service Commission and Others, reported in 1998 2 GLR 242; and (iii) Subramanian Swamy (Dr.) vs. State of Assam and Another, reported in 2021 (5) GLT 822. 5. Having heard the submission of Mr. Dutta, learned senior counsel for the petitioners, I have carefully gone through the petition as well as the documents placed on record and also perused the impugned order so passed by the learned trial court. 6. It is to be noted here that the Order 38 Rule 5 of the CPC reads as under:- “5. Where defendant may be called upon to furnish security for production of property:- (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him:- (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the Page No.# 6/10 decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule such attachment shall be void.” 7. Thus on a careful perusal of the Order 38 Rule 5 it is very much clear that in any application under that Rule, the Plaintiff has to establish the followings:- a) that he has a prima facie case and he is likely to get a favourable decree against the defendant; b) the defendant is either disposing of or about to dispose of his entire property or part of the same outside the jurisdiction of the court; c) that disposal of his properties or removal of properties is done with an intent to defraud the execution of any decree which may be issued against him. d) the points may be proved either by way of affidavit or by any other means. 8. Here in this case, from a perusal of the impugned order it appears that the learned trial court had relied upon two newspaper reports published in The Sentinel and also in The Assam Tribune along with one YouTube news video of The CrossCurrent to satisfy the ingredients specified under Order 38 Rule 5 of the CPC, i.e. (a) the defendant was about to dispose of the property and (b) the defendant was about to remove the property from the local limits of jurisdiction of the court. The facts, reported in the said news portals, were stated in the Page No.# 7/10 petition filed by the respondent herein, duly supported by an affidavit. 9. Now, let it be seen that whether the report of the newspapers and also the YouTube is sufficient to satisfy the conditions mentioned under Order 38 Rule 1 of the CPC. 10. The issue, relating to acceptability of newspaper reports, was dealt with by Hon’ble Supreme court in the case of Laxmi Raj Shetty (Supra), wherein in paragraph No. 26, it has been held as under:- “26. It is now well settled that a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. The accused should have therefore produced the persons in whose presence the seizure of the stolen money from Appellant 2's house at Mangalore was effected or examined the press correspondents in proof of the truth of the contents of the news item. The question as to the admissibility of newspaper reports has been dealt with by this Court in Samant N. Balkrishna v. George Fernandez. There the question arose whether Shri George Fernandez, the successful candidate returned to Parliament from the Bombay South Parliamentary Constituency had delivered a speech at Shivaji Park attributed to him as reported in the Maratha, a widely circulated Marathi newspaper in Bombay, and it was said: ‘A newspaper item without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect Information and pass it on to the editor who edits the news item and then publishes it. In this Page No.# 8/10 process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible.’ We need not burden the judgment with many citations. There is nothing on record to substantiate the facts as reported in the newspapers showing recovery of the stolen amount from the residence of Appellant 2 at Mangalore. We have therefore no reason to discard the testimony of PW 50 and the seizure witnesses which go to establish that the amount in question was actually recovered at Madras on the 29th and the 30th as alleged.” 11. Again while dealing with the issue, in the case of Raman Tech. & Process Engg. Co. (Supra), Hon’ble Supreme court had held as under:- “4. The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of Order 38 Rule 5 CPC in particular, is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The scheme of Order 38 and the use of the words "to obstruct or delay the execution of any decree that may be passed against him" in Rule 5 make it clear that before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. This would mean that the court should be satisfied that the plaintiff has a Page No.# 9/10 prima facie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the court about the existence of a prima facie case, the court will not go to the next stage of examining whether the interest of the plaintiff should be protected by exercising power under Order 38 Rule 5 CPC. It is well settled that merely having a just or valid claim or a prima facie case, will not entitle the plaintiff to an order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie ease. 5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realized by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.” 12. The proposition of law that can be culled out from the aforementioned decisions as well as discussion is that a newspaper report, without any further proof of what had actually happened through witnesses, is of no value and it is Page No.# 10/10 at best a second-hand secondary evidence and such news paper reports cannot be said to prove themselves, however, they may be taken into account with other evidence if the other evidence is available. 13. In the instant case, from a perusal of the petition and also from the impugned order, reveals that to arrive at a satisfaction for passing an order under Order 38 Rule 5 of the CPC, except the two newspaper reports published in The Sentinel and also in The Assam Tribune News Papers and one YouTube news video of The CrossCurrent, nothing was placed before the learned trial court. It is well settled that the power given to the Courts under Order 38 Rule 5 of the CPC, is a drastic and extraordinary power, which cannot be exercised mechanically or merely for the asking. And in absence of any supporting materials, exercising such a power by the learned trial court, to the considered opinion of this Court is illegal and arbitrary and on such count the impugned order, so passed by the learned trial court, failed to withstand the legal scrutiny. 14. Indisputably, the petitioner No.1 herein in this petition is a company under the Government of India and they have Tea Estate within the local limits of jurisdiction of the learned trial court which cannot be moved and in the event of passing of a decree against the petitioner, then the same could be satisfied from the aforementioned properties. 15. In the result, I find sufficient merit in this petition and accordingly, the same stands allowed. The impugned order dated 19.03.2025, stands set aside and quashed. JUDGE Comparing Assistant