This case relates to intellectual property right, more especially trademark
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. [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
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
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:
- documents referred to and relied on by the plaintiff in the plaint;
- 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
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.
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
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
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.
Written By: Ajay Amitabh Suman,
Advocate Delhi High Court