Sudhir Kumar @ S. Baliyan vs Vinay Kumar G.B. on 15 September, 2021


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Supreme Court of India

Sudhir Kumar @ S. Baliyan vs Vinay Kumar G.B. on 15 September, 2021

Author: M.R. Shah

Bench: M.R. Shah, A.S. Bopanna

                                                                           REPORTABLE

                                      IN THE SUPREME COURT OF INDIA
                                       CIVIL APPELLATE JURISDICTION

                                     CIVIL APPEAL NO. 5620 OF 2021
                                 (Arising out of SLP (C) No. 13082 OF 2021)


         SUDHIR KUMAR @ S. BALIYAN                                      .. APPELLANT (S)


                                                     VERSUS

         VINAY KUMAR G.B.                                             .. RESPONDENT (S)



                                                JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 06.04.2021 passed by the High Court of Delhi

at New Delhi in C. M. (M) No.181 of 2021, by which the High

Court has dismissed the said petition preferred by the appellant

herein – original plaintiff and has confirmed the order dated
Signature Not Verified

Digitally signed by R

13.11.2019 passed by the learned Commercial Court,
Natarajan
Date: 2021.09.15
16:50:45 IST
Reason:

dismissing the application filed by the appellant under Order

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VII Rule 14 (3) of the Code of Civil Procedure (hereinafter

referred to as the Code) seeking leave of the court to place

additional documents on record, the original plaintiff has

preferred the present appeal.

2. The appellant herein – original plaintiff filed the commercial

suit before the Commercial Court pending in the court of

learned Additional District Judge (Central) 10, being T.M.

No.123 of 2019 interalia for claiming a decree of permanent

injunction against the defendant from using the Trade Mark

“INSIGHT”, “INSIGHT ACADEMY”, “INSIGHT IAS ACADEMY”

and “INSIGHT PUBLICATIONS”. At this stage, it is to be noted

that the appellant filed the earlier suit being Trade Mark Suit

No.236 of 2018, claiming such adoption and use of the

trademark. However, subsequently the same came to be

withdrawn on 27.07.2019, as the same was not filed in

conformity with the provisions of the Commercial Courts Act,

2015 (hereinafter referred to as the Commercial Courts Act) and

subsequently filed the present suit on 31.08.2019. In the suit it

is alleged that the adoption and use of the trademark by it is

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since 2006. As per the provisions of Order XI Rule 1 applicable

to the suits before the commercial division of a High Court or a

commercial court, the plaintiff was required to 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 or certain documents including the invoices,

were not produced along with the plaint and therefore the

appellant herein filed the application under Order VII Rule 14

(3) read with Section 151 of CPC, seeking leave of the court to

file additional documents.

2.1 By order dated 13.11.2019, the learned Commercial Court

dismissed the said application seeking leave of the court to file

additional documents, filed by the appellant. That thereafter

the defendant filed the written statement on 06.01.2020. As per

Order XI Rule 7 even the defendant was required to file the list

of all documents, photocopies of all documents, in its power,

possession, control or custody, pertaining to the suit, along

with the written statement or with its counter claim, if any.

However, some documents were not produced by the defendant

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along with the written statement and therefore the defendant

filed an application under Order XI Rule 1 (10) of the CPC

seeking leave of the court to produce additional documents as

set out in the said application, however, the commercial court

partly rejected the said application vide order dated

08.10.2020.

The respondent herein – original defendant preferred an appeal

against the order dated 08.10.2020 before the Delhi High

Court. The Delhi High Court vide order dated 07.12.2020

allowed the said appeal taking on record all the documents filed

by the defendant. That thereafter the learned Commercial Court

dismissed the interim injunction application filed under Order

XXXIX Rule 1 and 2 of the CPC of the plaintiff vide order dated

16.01.2021.

2.2 That thereafter the appellant herein – original plaintiff filed CM

(M) No.181 of 2021 before the High Court of Delhi challenging

the order dated 13.11.2019, dismissing the application seeking

leave of the court to file additional documents filed by the

plaintiff. By the impugned judgment and order, the High Court

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has dismissed the said CM (M) No. 181 of 2021 and has

confirmed the order passed by the learned Commercial Court

dismissing the application seeking leave to file additional

documents filed by the plaintiff.

3. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court, the original plaintiff has

preferred the present appeal.

4. Shri Sachin Datta, learned Senior Advocate appearing on behalf

of the appellant has vehemently submitted that in the facts and

circumstances of the case, the application submitted by the

plaintiff to file/produce on record the additional documents, as

mentioned in the application submitted under Order XIV Rule 3

ought to have been allowed.

4.1 It is vehemently submitted that as such the documents which

are sought to be relied upon and sought to be produced on

record are very much necessary for the purpose of just decision

of the suit.

4.2 It is submitted that when the defendant was permitted to

produce on record the additional documents along with the

written statement in exercise of powers under Order XI Rule 1

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(10) of the CPC, similarly the plaintiff also ought to have been

permitted to place on record the additional documents which as

such are very much necessary for just decision of the suit.

4.3 It is further submitted that by Shri Datta, learned Senior

Advocate appearing on behalf of the appellant that the High

Court ought to have appreciated the application to file

additional documents was filed by the plaintiff within 10 days

of filing of the suit. It is submitted that as such therefore the

High Court has erred in holding that the additional documents

were produced by the plaintiff at a belated stage. It is further

submitted that the High Court has also materially erred in

observing that the explanation for non­filing of additional

documents is an afterthought and when the application for

interim injunction under Order XXXIX Rule 1 was kept for

orders.

4.4 It is submitted that the High Court has at all not appreciated

the fact that the application seeking leave of the court to

produce the additional documents was filed within 30 days of

filing of the suit and therefore the requirement under Order XI

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Rule 1 (4) of the CPC was satisfied.

4.5 It is further submitted that even the High Court has erred in

not appreciating that the additional documents are in support

of the pleadings already made in the plaint.

4.6 It is further submitted that even the High Court has erred in

not appreciating that the learned Trial Court/Commercial Court

erred in holding that the documents are suspicious because the

plaintiff did not mention about the existence of the said

documents in the plaint. It is submitted that at the stage of

production of the additional documents, the learned Trial

Court/Commercial Court was not at all required to consider the

genuineness of the documents sought to be produced, which

otherwise are required to be decided or considered during the

trial of the suit.

4.7 It is further submitted that even otherwise so far as the

invoices, which are sought to be produced, are concerned, it

was specifically stated that the said documents were not

available or in possession of the plaintiff at the time when the

suit was filed and the same were discovered subsequently.

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4.8 It is further submitted by the counsel appearing on behalf of

the appellant that cogent reasons were given by the plaintiff for

not producing the additional documents other than the

invoices, along with the suit. It is submitted that as such there

was no other malafide intention and/or negligence on the part

of the plaintiff for not producing along with the plaint the

additional documents other than the invoices. It is submitted

that the suit was filed on an urgent basis seeking an ex­parte

ad interim injunction and therefore the additional documents

other than the invoices, which were bulky were not produced

along with the plaint. It is submitted that therefore when the

application for leave to produce the additional documents was

filed within a period of 10 days from the date of filing of the suit

i.e. without any undue delay, the said application ought to have

been allowed and the plaintiff ought to have been permitted to

produce the additional documents as mentioned in the

application.

5. The present appeal is vehemently opposed by Ms. Kruttika

Vijay, learned Advocate appearing on behalf of the respondent

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herein – original defendant.

5.1 It is submitted that in the facts and circumstances of the case

and considering the object and purpose of Order XI Rule 1 as

applicable to the suits before the commercial court and

considering the said provisions, both the learned Trial

Court/Commercial Court as well as the High Court have rightly

dismissed the application filed by the plaintiff under Order VII

Rule 14 (3) of the CPC.

5.2 It is submitted that as such no cogent reasons were given by

the plaintiff for not producing additional documents along with

the plaint. It is submitted that in the absence of any cogent

reasons, the application submitted by the plaintiff for seeking

leave of the court to produce the additional documents is

rightly dismissed. It is submitted that the order rejecting the

application of the plaintiff seeking leave of the court to produce

on record the additional documents is absolutely in consonance

with the provisions of the Order XI Rule 1 (4) and Order XI Rule

1 (5) of the CPC.

5.3 It is further submitted by the learned counsel appearing on

behalf of the respondent herein–original defendant that in view
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of the specific provision by way of amendment in the CPC,

amending Order XI Rule 1 of the CPC w.r.t. the suits before the

commercial court, considering Section 16 of the Commercial

Courts Act, Order VII Rule 14(3) shall not be applicable at all

and what shall be applicable would be Order XI Rule 1 of the

CPC as applicable to the suits before the commercial court.

5.4 It is further submitted that as such the application submitted

by the plaintiff lacked bonafides as having realized during the

course of the hearing of the interim injunction application

under Order XXXIX Rule 1 that non production of the

documents which subsequently are sought to be produced may

come in their way and the interim injunction application was

kept for orders and as an afterthought the application was

given. It is further submitted by the learned counsel appearing

on behalf of the respondent herein ­ original defendant that so

far as the cause/reason shown in not producing the additional

documents other than the invoices, namely, as the documents

were bulky and therefore they were not produced, cannot be a

ground, subsequently to permit the plaintiff to place on record

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the additional documents which as such were in possession of

the plaintiff at the time of filing of the plaint/suit.

6. Making the above submissions, it is prayed to dismiss the

present appeal.

7. We have heard the learned counsel appearing on behalf of the

respective parties at length.

7.1 By the impugned judgment and order, the High Court has

dismissed the petition confirming the order passed by the

learned Commercial Court dated 13.11.2019, dismissing the

application filed by the appellant herein – original plaintiff

seeking leave of the court to place additional documents on

record. That by the said application the plaintiff prayed to

permit him to place on record the invoices as mentioned in

paragraph 3 of the application and also certain other additional

documents. That the plaintiff stated in the application for leave

to place on record additional documents in paragraph 3 and 4

as under:­
“3. That the accompanying documents along with the present
application in particular invoice dated 03.05.2005, invoice
dated 08.07.2005, invoice dated 10.08.2005, invoice dated
22.02.2006, invoice dated 10.04.2006, 1nvo1ce dated
05.06.2006, invoice dated 15.07.2006, invoice dated
10.01.2007, invoice dated 14.03.2007, invoice dated
19.05.2007, invoice dated 08.07.2007, invoice dated

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06.09.2007, invoice dated 14.03.2007, invoice dated
01.10.2007 could not be filed along with plaint being very old
and not in possession of the plaintiff at the time of filing the
plaint. Now the plaintiff has found the same from the Shivalik
Graphics.

4. That the documents other than above said documents
could not be filed due to voluminous records pertaining to
plaintiff case could not be filed at the time of filing of case but
the same are very important for the adjudication of dispute
between the parties.”

The aforesaid application has been dismissed by the learned

Commercial Court, which has been confirmed by the High

Court by the impugned judgment and order.

7.2 At the outset, it is required to be noted that as such the said

application for leave to produce on record additional documents

was preferred by the appellant herein – original plaintiff under

Order VII Rule 14 (3) of the CPC. However, considering the

Order XI Rule 1 as applicable to the commercial suits by which

Civil Procedure Code has been amended with respect to the

suits before the commercial court and in view of the Section 16

of the Commercial Courts Act, Order VII Rule 14 (3) of the CPC

shall have no application at all. After the Order XI Rule 1 has

been amended with respect to the suits before the commercial

courts and a specific provision/procedure has been prescribed

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with respect to the suits before the commercial division and

before the commercial court, the provision of the Code of Civil

Procedure as has been amended by the Commercial Courts Act,

2015 shall have to be followed and any provision of any rule of

the jurisdiction of the High Court or any amendment to the

Code of Civil Procedure by the State Government which is in

conflict of the Code of the Civil Procedure as amended by

Commercial Courts Act, the provision of the Code of the Civil

Procedure as amended by the Commercial Courts Act shall

prevail. Therefore, Order XI Rule 1 as amended by the

amendment in the Commercial Courts Act, with respect to the

suits before the commercial division and the commercial court,

the provisions of Order VII Rule 14 (3) shall not be applicable at

all. Therefore as such the plaintiff applied the wrong provision

seeking leave of the court to place on record the additional

documents. However, considering the fact that thereafter, both

the learned Commercial Court as well as the High Court treated

and considered and even applied Order XI Rule 1 of the CPC as

amended by the Commercial Courts Act and as applicable to

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the suits filed before the commercial division, commercial court,

we proceed to consider the application submitted by the

appellant herein – original plaintiff, as if the same was

submitted under Order XI Rule 1 (4) of the CPC.

7.3 It is true that Order XI Rule 1 of the CPC as applicable to the

commercial suits brought about a radical change and it

mandates the plaintiff to file a list of all documents,

photocopies of all documents, in its power, possession, control

or custody, pertaining to the suit, along with the plaint and a

procedure provided under Order XI Rule 1 is required to be

followed by the plaintiff and the defendant, when the suit is the

commercial suit. Order XI Rule 1, as applicable to commercial

suits reads as under:­
ORDER XI DISCLOSURE, DISCOVERY AND INSPECTION
OF DOCUMENTS IN SUITS BEFORE THE COMMERCIAL
DIVISION OF A HIGH COURT OR A COMMERCIAL COURT

1. Disclosure and discovery of documents.—(1) 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;

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(c) nothing in this Rule shall apply to documents produced by
plaintiffs and relevant only––

(i) for the cross­examination of the defendant’s witnesses, or

(ii) in answer to any case set up by the defendant subsequent
to the filing of the plaint, or

(iii) handed over to a witness merely to refresh his memory.
(2) The list of documents filed with the plaint shall specify
whether the documents in the power, possession, control or
custody of the plaintiff are originals, office copies or
photocopies and the list shall also set out in brief, details of
parties to each document, mode of execution, issuance or
receipt and line of custody of each document.
(3) The plaint shall contain a declaration on oath from the
plaintiff that all documents in the power, possession, control
or custody of the plaintiff, pertaining to the facts and
circumstances of the proceedings initiated by him have been
disclosed and copies thereof annexed with the plaint, and that
the plaintiff does not have any other documents in its power,
possession, control or custody.

Explanation.––A declaration on oath under this sub­rule shall
be contained in the Statement of Truth as set out in the
Appendix.

(4) In case of urgent filings, the plaintiff may seek leave to rely
on additional documents, as part of the above declaration on
oath and subject to grant of such leave by Court, the plaintiff
shall file such additional documents in Court, within thirty
days of filing the suit, along with a declaration on oath that
the plaintiff has produced all documents in its power,
possession, control or custody, pertaining to the facts and
circumstances of the proceedings initiated by the plaintiff and
that the plaintiff does not have any other documents, in its
power, possession, control or custody.

(5) 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 and such leave shall be granted only upon the plaintiff
establishing reasonable cause for non–disclosure along with
the plaint.

(6) The plaint shall set out details of documents, which the
plaintiff believes to be in the power, possession, control or
custody of the defendant and which the plaintiff wishes to rely
upon and seek leave for production thereof by the said
defendant.

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(7) The defendant 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 written
statement or with its counterclaim if any, including—

(a) the documents referred to and relied on by the defendant
in the written statement;

(b) the documents relating to any matter in question in the
proceeding in the power, possession, control or custody of the
defendant, irrespective of whether the same is in support of or
adverse to the defendant’s defence;

(c) nothing in this Rule shall apply to documents produced by
the defendants and relevant only––

(i) for the cross­examination of the plaintiff’s witnesses,

(ii) in answer to any case set up by the plaintiff subsequent to
the filing of the plaint, or

(iii) handed over to a witness merely to refresh his memory.
(8) The list of documents filed with the written statement or
counterclaim shall specify whether the documents, in the
power, possession, control or custody of the defendant, are
originals, office copies or photocopies and the list shall also
set out in brief, details of parties to each document being
produced by the defendant, mode of execution, issuance or
receipt and line of custody of each document.
(9) The written statement or counterclaim shall contain a
declaration on oath made by the deponent that all documents
in the power, possession, control or custody of the defendant,
save and except for those set out in sub­rule (7) (c) (iii)
pertaining to the facts and circumstances of the proceedings
initiated by the plaintiff or in the counterclaim, have been
disclosed and copies thereof annexed with the written
statement or counterclaim and that the defendant does not
have in its power, possession, control or custody, any other
documents.

(10) Save and except for sub­rule (7) (c) (iii), defendant shall
not be allowed to rely on documents, which were in the
defendant’s power, possession, control or custody and not
disclosed along with the written statement or counterclaim,
save and except by leave of Court and such leave shall be
granted only upon the defendant establishing reasonable
cause for non­disclosure along with the written statement or
counterclaim.

(11) The written statement or counterclaim shall set out
details of documents in the power, possession, control or
custody of the plaintiff, which the defendant wishes to rely

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upon and which have not been disclosed with the plaint, and
call upon the plaintiff to produce the same.

(12) Duty to disclose documents, which have come to the
notice of a party, shall continue till disposal of the suit.

Order XI Rule 1 (3) provides that the plaint shall contain a

declaration on oath from the plaintiff that all documents in the

power, possession, control or custody of the plaintiff, pertaining

to the facts and circumstances of the proceeding initiated by

him have been disclosed and copies thereof annexed with the

plaint, and that the plaintiff does not have other documents in

its power, possession, control or custody. As per the

explanation under Order 11 Rule 1 (3) a declaration on oath

under this sub­rule shall be contained in the Statement of

Truth as set out in the Appendix. Appendix I with respect to the

statement of truth reads as under:­
‘‘APPENDIX­I

STATEMENT OF TRUTH

(Under First Schedule, Order VI­Rule 15A and Order XI­ Rule

3)
I ­­­­­ the deponent do hereby solemnly affirm and declare as
under:

1. I am the party in the above suit and competent to swear
this affidavit.

2. I am sufficiently conversant with the facts of the case and
have also examined all relevant documents and records in
relation thereto.

3. I say that the statements made in ­­­­­paragraphs are true
to my knowledge and statements made in ­­­­­paragraphs are

17
based on information received which I believe to be correct
and statements made in ­­­paragraphs are based on legal
advice.

4. I say that there is no false statement or concealment of any
material fact, document or record and I have included
information that is according to me, relevant for the present
suit.

5. I say that all documents in my power, possession, control
or custody, pertaining to the facts and circumstances of the
proceedings initiated by me have been disclosed and copies
thereof annexed with the plaint, and that I do not have any
other documents in my power, possession, control or custody.

6. I say that the above­mentioned pleading comprises of a
total of ­­­­ pages, each of which has been duly signed by me.

7. I state that the Annexures hereto are true copies of the
documents referred to and relied upon by me.

8. I say that I am aware that for any false statement or
concealment, I shall be liable for action taken against me
under the law for the time being in force.

Place:

Date:

DEPONENT
VERIFICATION
I, ………………………. do hereby declare that the statements
made above are true to my knowledge.

Verified at [place] on this [date]
DEPONENT.”.]

Therefore, the declaration on oath shall be part of the plaint.

The plaintiff has to declare on oath that all documents in

its/his power, possession, control or custody, pertaining to the

facts and circumstances of the proceedings, initiated by him/it

have been disclosed and the copies thereof annexed with the

plaint, and that he does not have any other documents in his

power, possession, control or custody. Therefore as such it is

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mandated by Order XI Rule 1 for the plaintiff to disclose and

produce all the documents in his power, possession, control or

custody, pertaining to the facts and circumstances of the

proceedings.

7.4 However, the additional documents can be permitted to be

bought on record with the leave of the court as provided in

Order XI Rule 1 (4). Order XI Rule 1 (4) provides that in case of

urgent filings, the plaintiff may seek leave to rely on additional

documents as part of the above declaration on oath [as

provided under Order 11 Rule 1 (3)] and subject to grant of

such leave by Court, the plaintiff shall file such additional

documents in Court, within thirty days of filing the suit, along

with a declaration on oath that the plaintiff has produced all

documents in its power, possession, control or custody,

pertaining to the facts and circumstances of the proceedings

initiated by the plaintiff and that the plaintiff does not have any

other documents, in its power, possession, control or custody.

7.5 Order XI Rule 1 (5) further provides that the plaintiff shall not

be allowed to rely on documents, which were in the plaintiff’s

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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 and such leave shall be granted

only upon the plaintiff establishing reasonable cause for non

disclosure along with the plaint. Therefore on combined reading

of Order XI Rule 1 (4) read with Order XI Rule 1 (5), it emerges

that (i) in case of urgent filings the plaintiff may seek leave to

rely on additional documents; (ii) within thirty days of filing of

the suit; (iii) making out a reasonable cause for non disclosure

along with plaint.

7.6 Therefore a further thirty days time is provided to the plaintiff

to place on record or file such additional documents in court

and a declaration on oath is required to be filed by the plaintiff

as was required as per Order XI Rule 1 (3) if for any reasonable

cause for non disclosure along with the plaint, the documents,

which were in the plaintiff’s power, possession, control or

custody and not disclosed along with plaint. Therefore plaintiff

has to satisfy and establish a reasonable cause for non

disclosure along with plaint. However, at the same time, the

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requirement of establishing the reasonable cause for non

disclosure of the documents along with the plaint shall not be

applicable if it is averred and it is the case of the plaintiff that

those documents have been found subsequently and in fact

were not in the plaintiff’s power, possession, control or custody

at the time when the plaint was filed. Therefore Order XI Rule 1

(4) and Order XI Rule 1 (5) applicable to the commercial suit

shall be applicable only with respect to the documents which

were in plaintiff’s power, possession, control or custody and not

disclosed along with plaint. Therefore, the rigour of

establishing the reasonable cause in non disclosure along with

plaint may not arise in the case where the additional

documents sought to be produced/relied upon are discovered

subsequent to the filing of the plaint.

8. Having considered the statutory provisions in detail, the order

passed by the learned Commercial Court, confirmed by the

High Court, rejecting the application of the plaintiff for leave to

rely on the additional documents is required to be tested and

considered.

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8.1 It emerges from the record that the first suit was filed by the

plaintiff in the month of October, 2018, bearing TM No.236 of

2018, restraining the defendant from infringing and passing­off

plaintiff’s Trade Marks. That an ex­parte interim injunction was

passed in favour of the plaintiff by order dated 29.10.2018. It

appears having realized and found that the earlier suit was not

in consonance with the provisions of the Commercial Courts

Act, the plaintiff withdrew the said suit being TM No.236 of

2018 on 27.07.2019 with liberty to file a fresh suit as per the

Commercial Courts Act, 2015. Therefore, the second suit was

filed on 31.08.2019 and within a period of thirty days from

filing of the second suit the appellant herein – original plaintiff

preferred the present application seeking leave of the court to

file additional documents. In the application, it was specifically

mentioned that so far as the invoices are concerned, the same

were not in its possession at the time of the filing of the plaint

and so far as the other documents are concerned they were not

filed due to they being voluminous. Therefore, so far as the

invoices sought to be relied on/produced as additional

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documents ought to have been permitted to be relied

on/produced as it was specifically asserted that they were not

in his possession at the time of filing of the plaint/suit.

8.2 The submissions on behalf of the defendant that the cause

shown for non production was an afterthought cannot be

accepted for the simple reason that the application was filed

within a period of thirty days from the date of filing of the

second suit and at the time when the application for interim

injunction under Order XXXIX Rule 1 was not fully heard and

kept for orders.

8.3 Even the reason given by the learned Commercial Court that

the invoices being suspicious and therefore not granting leave

to produce the said invoices cannot be accepted. At the stage of

granting leave to place on record additional documents the

court is not required to consider the genuineness of the

documents/additional documents, the stage at which

genuineness of the documents to be considered during the trial

and/or even at the stage of deciding the application under

Order XXXIX Rule 1 that too while considering prima facie case.

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Therefore, the learned Commercial Court ought to have granted

leave to the plaintiff to rely on/produce the invoices as

mentioned in the application as additional documents.

8.4 Now, so far as the other documents sought to be relied

on/produced as additional documents other than the invoices

are concerned the same stands on different footing. It is not

disputed and in fact it was specifically admitted and so stated

in the application that those additional documents other than

the invoices were in their possession but not produced being

voluminous and that the suit was filed urgently. However, it is

to be noted that when the second suit was filed, it cannot be

said to be urgent filing of the suit for injunction, as the first suit

was filed in the month of October, 2018 and there was an ex­

parte ad interim injunction vide order dated 29.10.2018 and

thereafter plaintiff withdrew the said first suit on 27.07.2019

with liberty to file a fresh suit as per the Commercial Courts Act

and the second suit came to be filed on 31.08.2019 after period

of one month of the withdrawal of first suit. Therefore the case

on behalf of the plaintiff that when the second suit was filed, it

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was urgently filed therefore, the additional documents sought to

be relied upon other than the invoices were not filed as the

same were voluminous cannot be accepted. And therefore as

such Order XI Rule 1 (4) shall not be applicable, though the

application was filed within thirty days of filing of the second

suit. While seeking leave of the court to rely on documents,

which were in his power, possession, control or custody and not

disclosed along with plaint or within the extended period set

out in Order XI Rule 1 (4), the plaintiff has to establish the

reasonable cause for non disclosure along with plaint.

8.5 In view of the facts and circumstances narrated hereinabove

and in view of the filing of the first suit in the month of October,

2018; the ex­parte ad interim injunction order in favour of the

plaintiff dated 29.10.2018; withdrawal of the first suit on

27.07.2019 and subsequently the filing of the second suit on

31.08.2019, non filing of the additional documents other than

the invoices on the ground of they being voluminous cannot be

said to be a reasonable cause for non disclosure/filing along

with plaint. There was sufficient time gap between the filing of

25
the first suit and filing of the second suit i.e. approximately 10

months and therefore when the second suit was filed the

plaintiff was having sufficient time after filing of the first suit, to

file the additional documents other than the invoices at the

time when the second suit was filed. Therefore as such, both

the courts below have rightly not permitted the plaintiff to rely

upon the documents, other than the invoices as additional

documents in exercise of the powers under Order XI Rule 1 (4)

read with Order XI Rule 1 (5).

9. In view of the above and for the reasons stated above, the

plaintiff can be permitted to rely on the documents in the form

of invoices as mentioned in the application as additional

documents. However, such production shall not affect the

outcome of interim injunction application submitted under

Order XXXIX Rule 1 of the CPC, which as such is reported to be

kept for orders.

10. In view of the above and for the reasons stated above, the

present appeal is partly allowed. The impugned judgment and

order passed by the High Court confirming the order passed by

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the learned Commercial Court dismissing the application

submitted by the plaintiff to rely on/produce the documents

mentioned in application dated 13.09.2019, as additional

documents is quashed and set aside to the extent not granting

leave to the appellant herein – original plaintiff to rely

on/produce the invoices mentioned in the application dated

13.09.2019 and consequently the leave is granted to the

appellant herein – original plaintiff to produce/rely on the

invoices mentioned in the application as additional documents.

Rest of the order not granting leave to appellant herein –

original plaintiff to rely on/produce the documents other than

the invoices as observed hereinabove, as additional evidence is

hereby confirmed. The present appeal is accordingly partly

allowed to the aforesaid extent. No costs.

…………………………………J.

(M. R. SHAH)

…………………………………J.

(ANIRUDDHA BOSE)

New Delhi,
September 15, 2021

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