BREIF CASE SUMMARY OF JUDGMENT DATED 18.04.2016 PRONOUNCED
BY HON’BLE HIGH COURT OF DELHI IN SUIT BEARING CS(OS) NO.504 OF 2004, TITLED AS
POLYFLOR LIMITED VS SH.A.N.GOENKA & OTHERS
· This
case relates to intellectual property right, more especially trademark right.
· The
judgment deals with the issue of production of additional document by the
plaintiff’s witness during the course of cross examination in answer to
question put by the defendant’s counsel.
·
Hence
in this case, the Hon’ble High Court of Delhi laid down the case law, whether,
during the course of cross examination, a witness can produce additional
document (the copies of which were not filed , neither along with plaint, nor
at the time of framing of issues, nor along with the plaintiff’s evidence by
way of affidavit nor any list of reliance was filed by the plaintiff along with
the plaint), while answering the question, put by the counsel of the opposite
party.
THE FACTUAL MATERIX:
·
The
plaintiff instituted the suit seeking permanent injunction, passing off,
delivery up and unfair trade practices and rendition of account against the
defendants in the year April 2004 claiming the proprietary right in the
trademark POLYFLOR. The issues in the suit were framed on 02.12.2013. There
after the matter was ordered to proceed for the cross examination of the
plaintiff’s witness before the Ld. Local Commissioner, appointed by the Hon’ble
High Court of Delhi.
·
The
recording of evidence was going on before the Ld. Local Commissioner. The
plaintiff’s witness PW-1 was under cross examination. During the course of
cross examination, the defendant’s counsel put question to the plaintiff’s
witness, regarding statement of account of the plaintiff company. In answer to
that the plaintiff’s witness said that I am carrying the same with me and
requested to rely upon the case. The Ld. Local Commissioner refused to take on
record the afore-mentioned additional document of the plaintiff’s witness.
·
There
after the plaintiff moved application under Order 7 Rule 14(3) CPC seeking to place on record three sets of documents (the copies of which
were not filed, neither with plaint, nor at the time of framing of issues, nor
along with the plaintiff’s evidence by way of affidavit nor any list of
reliance was filed by the plaintiff) relating to the audited statement of
accounts of the plaintiff, before the Ld. Joint Registrar, Hon’ble High Court
of Delhi.
·
The
said application was rejected by the Ld. Joint registrar after considering this
fact that the original suit was filed in the year 2004. The documents sought to
be produced were neither filed along with the plaint, nor at the stage of
admission/denial of documents, nor even at the stage of framing of issues on
02.12.2013. The plaintiff’s witness has been substantially cross examined. The
Ld. Joint Registrar rejected the plaintiff’s application as the additional documents
were in the control of the plaintiff and that the same were not filed at the
appropriate stage, nor even at the stage of framing of issues.
·
Against
the rejection of plaintiff’s application under Order 7 Rule 14(3) by the Ld.
Joint Registrar, the plaintiff filed the subject matter Chamber Appeal before
Hon’ble Single Judge, High Court of Delhi, which the Hon’ble Single Judge after
discussing the facts and laws applicable thereto.
REASONING OF THE HON’BLE HIGH COURT OF DELHI:
·
The
Court examined the provision of Order 7 Rule 14 (3) CPC, which is produced as
herein below:
“A document which ought to be produced in Court by the plaintiff when the plaint is presented, or
to be entered in the list to be added
or annexed to the plaint but is not produced
or entered accordingly, shall not without the leave of the Court, be received
in evidence on his behalf at the hearing
of the suit”.
The
Court further examined the provisions of The Commercial Courts, Commercial
Division and Commercial Appellate Division of High Courts Act, 2015 provides
under Order XI Sub-rule (1) of Rule 1, which is as herein below:
“Plaintiff shall file a list of all documents and photocopies of all documents, in its power,
possession, control or custody,
pertaining to the suit, along with the plaint, including:
(a) documents
referred to and relied on by the plaintiff in the
plaint;
(b) documents
relating to any matter in question in the proceedings,
in the power, possession, control or custody of the plaintiff, as on the date of
filing the plaint, irrespective of
whether the same is in support of or
adverse to the plaintiff’s case;”.
Sub-rule
(5) of Rule 1 states that:
“The
plaintiff shall not be allowed to rely on documents, which were in the plaintiff’s power, possession, control or custody and not disclosed along with
plaint or within the extended period set
out above, save and except by leave
of Court”
·
The
Hon’ble High Court of Delhi observed that the plaintiff is prohibited from
leading in evidence, a document which he
ought to have produced when the plaint was presented. The exception to this
rule is that, where the Court grants leave to the plaintiff, the document may
be permitted to be led in evidence at the hearing of the suit under the
befitting circumstances.
·
The
Hon’ble Court rejected the chamber appeal as the plaintiff’s witness PW-1 was under
cross-examination and has already undergone a substantial portion of his
cross-examination. To grant leave to, and permit the plaintiff to file and lead
in evidence additional documents at this stage would mean that the defendants
would be put to serious prejudice.
·
The
Hon’ble Court further observed that no plausible reason has been given by the
plaintiff for non-disclosure of the documents and non-filing of the documents,
or at least copies thereof along with the plaint, or even till the stage of
framing of the issues.
CONCLUSION:
·
Along
with the plaint, the plaintiff is required to file copies of all the documents
which are in their power and possession and shall also file the list of
reliance regarding all those documents, which are not in its power and
possession.
·
A
party cannot be allowed to put on record the additional document in answer to
question put forward by the opposite party counsel, during the course of cross
examination until and unless it is shown that the documents were not in the
power and possession of the witness and the same could not have been produced
on record and that there are sufficient cause for non production of the same.
The Hon’ble Court also made reference to the provisions.
·
The
Hon’ble High Court has also rejected the chamber appeal of the plaintiff as the
plaintiff was unable to give any plausible reason for not filing the additional
documents on record at the appropriate stage of the suit, as all the additional
documents, sought to be taken on record, were always available with the
plaintiff.
·
It can
safely be said that the Hon’ble Court has declined to grant any relief to a
party, which is guilty of adopting lackadaisical attitude.
AJAY AMITABH SUMAN
ADVOCATE
DELHI HIGH COURT
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