$~17
*
IN THE
HIGH COURT OF DELHI AT NEW DELHI
% Judgment
delivered on: 03.07.2015
+
FAO (OS)
324/2015 & CM No.11302/2015 (stay)
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M/S CAPITAL METERS LIMITED & ANR.
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....
Appellants
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versus
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M/S. S. JOHNFLEX INDUSTRIES & ANR.
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..... Respondents
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Advocates who appeared in this case:
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For the Appellants:
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Mr S.K. Bansal with Mr Ajay Amitabh
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Suman,
Advocates.
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For the
Respondents
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: None.
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CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
CM No.11303/2015 (exemption)
Exemption
is allowed subject to all just exceptions.
FAO (OS) 324/2015 & CM No.11302/2015 (stay)
1. This appeal is preferred against the order dated 25.05.2015 passed by
a learned Single Judge of this Court, whereby IA No.1072/2015 filed by the
appellant/defendant seeking to bring certain documents was rejected. The
documents which were sought to be brought on record are as under:-
“(i) The photographs of the products under the trademark Capital carrying the
FAO (OS) No.324/2015 Page 1 of 5
manufacturing
year 1987.
(ii)
The ITCC Certificate for the
financial year 1987-88.
(iii)
The NSIC certificate dated
22.05.1990 against application of defendant no.1 dated 08.03.1990.
(iv)
KSEB Registration certificate
dated 06.12.1988.
(v)
The letter dated 27.03.1987
issued by the Electricity department of UP.
(vi)
No Objection Certificate from UP
Pollution Board dated 26.04.1986.
(vii)
UP PWD approval dated 14.05.1987.
(viii) UP SEB
approval dated 25.05.1987.
(ix)
The ISI License valid since the year 1987.
(x)
Surrender letter of defendant no.1 of BIS
License.”
2.
The learned Single Judge noted that these documents
were always
available with the defendants/appellants at all times. We may also point
out that the said suit was filed in the year 2004. Initially, a written
statement was filed by the defendants which was subsequently amended in the
year 2008. Issues were framed in the year 2009 and the plaintiffs‟ evidence was
concluded in the year 2012. Three years later, in the current year, i.e., 2015,
the said application being IA 1072/2015 was filed
FAO (OS) No.324/2015 Page 2 of 5
to bring on record the documents
which were, at all times, available with
the defendants. A flimsy explanation had been attempted to be
given for
the
non-production of the said documents at an earlier stage. The same
can be discerned from paragraph 4
of the application which reads as
under:-
“4. That the defendant no.1 is filing the afore
mentioned additional documents by way of list of document dated 15.05.2015. The
same may be referred to. All the documents are being filed in photocopies. The
plaintiff is desirous of producing the same at the trial stage as the same are
very important and necessary for the defendant no.1 to produce the same in
relation to various proceedings on daily basis. The said document could not
have been filed before framing of issues. The afore mentioned documents are
very old documents are were lying under various files in godown. The custodian
of the afore mentioned documents changed from time to time in the office of the
defendant no.1. After much effort, the defendant no.1 was able to obtain the
same. The same could not have been filed before framing of issues because of
the reasons mentioned herein above. The reasons for not filing the afore
mentioned document is beyond the power and control of the plaintiff.”
3.
The learned Single Judge has
correctly noted that, at this stage, the
FAO (OS) No.324/2015 Page 3 of 5
defendants (appellants herein) cannot be permitted
to rely on the same and that the application does not indicate diligence and
seriousness of the defendants. In our view, this is only an attempt to delay
the proceedings in the suit.
4. The learned counsel for the appellants placed before us a judgment of
the Supreme Court in Lakshmi and Anr. v. Chinnammal Rayyammal
and Ors.: (2009) 13 SCC 25 in an
attempt to support his argument that this Court ought to take the said
documents on record. First of all, the said decision of the Supreme Court in Lakshmi
(supra) was one under Order XIII Rule
10 CPC which is entirely different from the situation which obtains in the
present case. Under that provision, the Court may send for the papers from its
own record or from other Courts. Here the documents were available with the
appellants at all times and admittedly so. The explanation sought to be given
by the appellants, as noted above, is clearly untenable. It is in the context
of Order XIII Rule 10 that the Supreme Court in Lakshmi (supra) made the observation in
paragraph 12 which is reproduced herein below:
“12. If bringing on record a document is essential
for proving the case by a party, ordinarily the same should not be refused;
FAO (OS) No.324/2015 Page 4 of 5
the
Court‟s duty being to find out the truth.
The procedural mechanics necessary to arrive at a
just decision must be encouraged. We are not unmindful of the fact that the
court in the said process would not encourage any fishing enquiry. It would
also not assist a party in procuring a document which he should have himself
filed.”
Even in the said observation of
the Supreme Court, the word „ordinarily‟
has been
used. The
present case does not fall in that category. Here, no
plausible explanation has been
given for not producing the documents
despite the suit having been
filed in 2004 and even the written statement
having been amended in 2008,
particularly, when the documents were all
along said to be available with
the appellants.
5. In the
factual matrix of the present case, we do not find any error in
the impugned order whereby the
learned Single Judge has refused the
appellant/defendant‟s request for
taking on record the said documents.
6.
The appeal has no merit. The same is dismissed.
BADAR DURREZ AHMED, J
SANJEEV SACHDEVA, J
JULY 03, 2015/st
FAO (OS) No.324/2015 Page 5 of 5
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