PRODUCTION OF ADDITIONAL DOCUMENT DURING CROSS EXAMINATION

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