SUDHIR KUMAR @ S. BALIYAN versus VINAY KUMAR G.B. on 15 September 2021

SUDHIR KUMAR @ S. BALIYAN

v.

VINAY KUMAR G.B.

(Civil Appeal No. 5620 of 2021)

SEPTEMBER 15, 2021

[M. R. SHAH AND ANIRUDDHA BOSE, JJ.]

Code of Civil Procedure, 1908 –Or.VII, r.14(3) and Or. XI,R.1 (as amended by the amendment in the Commercial Courts Act) –Filing of additional documents –The appellant-original plaintiff filedthe commercial suit claiming a decree of permanent injunctionagainst the defendant from using the Trade Mark of appellant –Appellant filed an application u/Or.VII, r.14(3) and sought to fileadditional documents – The said application was dismissed by theCommercial Court –The High Court confirmed the order by theCommercial Courts – On appeal, held: Or. XI, R.1 as amended bythe amendment in the Commercial Courts Act, with respect to thesuits before the commercial division and the Commercial Court, theprovisions of Or.VII, R.14 (3) were not applicable – Therefore, assuch the plaintiff applied the wrong provision seeking leave of thecourt to place on record the additional documents – Now, beforethe Supreme Court, the application submitted by the appellant wasconsidered submitted u/Or. XI R.1(4) of the CPC as both theCommercial Court and the High Court had considered and appliedOr.XI, R.1 –In the said application for additional documents, it wasspecifically mentioned that so far as the invoices are concerned,the same were not in its possession at the time of the filing of theplaint and so far as the other documents are concerned they werenot filed due to they being voluminous – Therefore, so far as theinvoices sought to be relied on/produced as additional documentsought to have been permitted – Insofar as, the non-filing of theadditional documents other than the invoices on the ground of theybeing voluminous cannot be said to be a reasonable cause for non-disclosure/filing along with plaint – Both the courts below rightlynot permitted the plaintiff to rely upon the documents, other thanthe invoices as additional documents in exercise of the powersu/Or. XI R.1 (4) r/w. Or. XI R. 1 (5).

A

B

CDEF

G

H

732SUPREME COURT REPORTS

APartly allowing the appeal, the Court

HELD: 1. It emerges from the record that the first suitwas filed by the plaintiff in the month of October, 2018, bearingTM No.236 of 2018, restraining the defendant from infringingand passing-off plaintiff’s Trade Marks. That an ex-parte interimBinjunction was passed in favour of the plaintiff by order dated29.10.2018. It appears having realized and found that the earliersuit was not in consonance with the provisions of the CommercialCourts Act, the plaintiff withdrew the said suit being TM No.236of 2018 on 27.07.2019 with liberty to file a fresh suit as per theCommercial Courts Act, 2015. Therefore, the second suit wasfiledCon 31.08.2019 and within a period of thirty days from filing of thesecond suit the appellant herein – original plaintiff preferred thepresent application seeking leave of the court to file additionaldocuments. In the application, it was specifically mentioned thatso far as the invoices are concerned, the same were not in itsDpossession at the time of the filing of the plaint and so far as theother documents are concerned they were not filed due to theybeing voluminous. Therefore, so far as the invoices sought tobe relied on/produced as additional documents ought to havebeen permitted to be relied on/produced as it was specificallyasserted that they were not in his possession at the time of filingEof the plaint/suit.[Para 8.1][747-A-E]

2. Now, so far as the other documents sought to be reliedon/produced as additional documents other than the invoices areconcerned the same stands on different footing. It is not disputedand in fact it was specifically admitted and so stated in theFapplication that those additional documents other than the invoiceswere in their possession but not produced being voluminous andthat the suit was filed urgently. However, it is to be noted thatwhen the second suit was filed, it cannot be said to be urgentfiling of the suit for injunction, as the first suit was filed in theGmonth of October, 2018 and there was an exparte ad interiminjunction vide order dated 29.10.2018 and thereafter plaintiffwithdrew the said first suit on 27.07.2019 with liberty to file afresh suit as per the Commercial Courts Act and the second suitcame to be filed on 31.08.2019 after period of one month of thewithdrawal of first suit. Therefore the case on behalf of the plaintiffH

that when the second suit was filed, it was urgently filed therefore,the additional documents sought to be relied upon other than theinvoices were not filed as the same were voluminous cannot beaccepted. And therefore as such Order XI Rule 1 (4) shall not beapplicable, though the application was filed within thirty days offiling of the second suit. While seeking leave of the court to relyon documents, which were in his power, possession, control orcustody and not disclosed along with plaint or within the extendedperiod set out in Order XI Rule 1 (4), the plaintiff has to establishthe reasonable cause for non disclosure along with plaint. [Para8.4][748-B-G]

3. In view of the facts and circumstances and in view of thefiling of the first suit in the month of October, 2018; the ex-partead interim injunction order in favour of the plaintiff dated29.10.2018; withdrawal of the first suit on 27.07.2019 andsubsequently the filing of the second suit on 31.08.2019, non filingof the additional documents other than the invoices on the groundof they being voluminous cannot be said to be a reasonable causefor non disclosure/filing alongwith plaint. There was sufficient timegap between the filing of the first suit and filing of the second suiti.e. approximately 10 months and therefore when the second suitwas filed the plaintiff was having sufficient time after filing of thefirst suit, to file the additional documents other than the invoicesat the time when the second suit was filed. Therefore, as such,both the courts below have rightly not permitted the plaintiff torely upon the documents, other than the invoices as additionaldocuments in exercise of the powers under Order XI Rule 1 (4)read with Order XI Rule 1 (5). [Para 8.5][748-G-H; 749-A-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No.5620 of2021.

From the Judgment and Order dated 06.04.2021 of the High Courtof Delhi at New Delhi in C.M. (M) 181 of 2021.

Sachin Datta, Sr. Adv., Jayant Kumar, Amit Mehta, Ms. Athira G.Nair for M/s LAWFIC, Advs. for the Appellant.

Ms. Kruttika Vijay, Aditya Verma, Advs. for the Respondent.

AB

C

D

E

F

G

H

[2021] 7 S.C.R.

AThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 06.04.2021 passed by the High Court of Delhi at NewDelhi in C. M. (M) No.181 of 2021, by which the High Court has dismissedBthe said petition preferred by the appellant herein – original plaintiff andhas confirmed the order dated 13.11.2019 passed by the learnedCommercial Court, dismissing the application filed by the appellant underOrder VII Rule 14 (3) of the Code of Civil Procedure (hereinafterreferred to as the Code) seeking leave of the court to place additionalCdocuments on record, the original plaintiff has preferred the presentappeal.

2. The appellant herein – original plaintiff filed the commercialsuit before the Commercial Court pending in the court of learnedAdditional District Judge (Central) 10, being T.M. No.123 of 2019Dinteralia for claiming a decree of permanent injunction against thedefendant from using the Trade Mark “INSIGHT”, “INSIGHTACADEMY”, “INSIGHT IAS ACADEMY” and “INSIGHTPUBLICATIONS”. At this stage, it is to be noted that the appellant filedthe earlier suit being Trade Mark Suit No.236 of 2018, claiming suchadoption and use of the trademark. However, subsequently the sameEcame to be withdrawn on 27.07.2019, as the same was not filed inconformity with the provisions of the Commercial Courts Act, 2015(hereinafter referred to as the Commercial Courts Act) and subsequentlyfiled the present suit on 31.08.2019. In the suit it is alleged that theadoption and use of the trademark by it is since 2006. As per the provisionsFof Order XI Rule 1 applicable to the suits before the commercial divisionof a High Court or a commercial court, the plaintiff was required to filea list of all documents and photocopies of all documents, in its power,possession, control or custody, pertaining to the suit, along with the plaintor certain documents including the invoices, were not produced alongwith the plaint and therefore the appellant herein filed the applicationGunder Order VII Rule 14 (3) read with Section 151 of CPC, seekingleave of the court to file additional documents.

2.1By order dated 13.11.2019, the learned Commercial Courtdismissed the said application seeking leave of the court tofile additional documents, filed by the appellant. ThatH

thereafter the defendant filed the written statement on06.01.2020. As per Order XI Rule 7 even the defendantwas required to file the list of all documents, photocopies ofall documents, in its power, possession, control or custody,pertaining to the suit, along with the written statement orwith its counter claim, if any. However, some documentswere not produced by the defendant along with the writtenstatement and therefore the defendant filed an applicationunder Order XI Rule 1 (10) of the CPC seeking leave ofthe court to produce additional documents as set out in thesaid application, however, the commercial court partlyrejected the said application vide order dated 08.10.2020.

The respondent herein – original defendant preferred anappeal against the order dated 08.10.2020 before the DelhiHigh Court. The Delhi High Court vide order dated07.12.2020 allowed the said appeal taking on record all thedocuments filed by the defendant. That thereafter the learnedCommercial Court dismissed the interim injunctionapplication filed under Order XXXIX Rule 1 and 2 of theCPC of the plaintiff vide order dated 16.01.2021.

2.2That thereafter the appellant herein – original plaintiff filedCM (M) No.181 of 2021 before the High Court of Delhichallenging the order dated 13.11.2019, dismissing theapplication seeking leave of the court to file additionaldocuments filed by the plaintiff. By the impugned judgmentand order, the High Court has dismissed the said CM (M)No. 181 of 2021 and has confirmed the order passed by thelearned Commercial Court dismissing the application seekingleave to file additional documents filed by the plaintiff.

3. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the original plaintiff has preferredthe present appeal.

4. Shri Sachin Datta, learned Senior Advocate appearing on behalfof the appellant has vehemently submitted that in the facts andcircumstances of the case, the application submitted by the plaintiff tofile/produce on record the additional documents, as mentioned in theapplication submitted under Order XIV Rule 3 ought to have been allowed.

AB

C

D

E

F

G

H

736SUPREME COURT REPORTS

A4.1It is vehemently submitted that as such the documents whichare sought to be relied upon and sought to be produced onrecord are very much necessary for the purpose of justdecision of the suit.

4.2It is submitted that when the defendant was permitted toBproduce on record the additional documents along with thewritten statement in exercise of powers under Order XIRule 1 (10) of the CPC, similarly the plaintiff also ought tohave been permitted to place on record the additionaldocuments which as such are very much necessary for justdecision of the suit.C

4.3It is further submitted that by Shri Datta, learned SeniorAdvocate appearing on behalf of the appellant that the HighCourt ought to have appreciated the application to fileadditional documents was filed by the plaintiff within 10days of filing of the suit. It is submitted that as such thereforeDthe High Court has erred in holding that the additionaldocuments were produced by the plaintiff at a belated stage.It is further submitted that the High Court has also materiallyerred in observing that the explanation for non-filing ofadditional documents is an afterthought and when theEapplication for interim injunction under Order XXXIX Rule1 was kept for orders.

4.4It is submitted that the High Court has at all not appreciatedthe fact that the application seeking leave of the court toproduce the additional documents was filed within 30 daysFof filing of the suit and therefore the requirement underOrder XI Rule 1 (4) of the CPC was satisfied.

4.5It is further submitted that even the High Court has erred innot appreciating that the additional documents are in supportof the pleadings already made in the plaint.

G4.6It is further submitted that even the High Court has erred innot appreciating that the learned Trial Court/CommercialCourt erred in holding that the documents are suspiciousbecause the plaintiff did not mention about the existence ofthe said documents in the plaint. It is submitted that at thestage of production of the additional documents, the learnedH

Trial Court/Commercial Court was not at all required toconsider the genuineness of the documents sought to beproduced, which otherwise are required to be decided orconsidered during the trial of the suit.

A

4.7It is further submitted that even otherwise so far as theinvoices, which are sought to be produced, are concerned,Bit was specifically stated that the said documents were notavailable or in possession of the plaintiff at the time whenthe suit was filed and the same were discoveredsubsequently.

4.8It is further submitted by the counsel appearing on behalfCof the appellant that cogent reasons were given by theplaintiff for not producing the additional documents otherthan the invoices, along with the suit. It is submitted that assuch there was no other malafide intention and/or negligenceon the part of the plaintiff for not producing along with theDplaint the additional documents other than the invoices. It issubmitted that the suit was filed on an urgent basis seekingan ex-parte ad interim injunction and therefore the additionaldocuments other than the invoices, which were bulky werenot produced along with the plaint. It is submitted thattherefore when the application for leave to produce theEadditional documents was filed within a period of 10 daysfrom the date of filing of the suit i.e. without any unduedelay, the said application ought to have been allowed andthe plaintiff ought to have been permitted to produce theadditional documents as mentioned in the application.

F

5. The present appeal is vehemently opposed by Ms. KruttikaVijay, learned Advocate appearing on behalf of the respondent herein –original defendant.

5.1It is submitted that in the facts and circumstances of thecase and considering the object and purpose of Order XIRule 1 as applicable to the suits before the commercial courtand considering the said provisions, both the learned TrialCourt/Commercial Court as well as the High Court haverightly dismissed the application filed by the plaintiff underOrder VII Rule 14 (3) of the CPC.

G

H

A5.2It is submitted that as such no cogent reasons were givenby the plaintiff for not producing additional documents alongwith the plaint. It is submitted that in the absence of anycogent reasons, the application submitted by the plaintifffor seeking leave of the court to produce the additionaldocuments is rightly dismissed. It is submitted that the orderBrejecting the application of the plaintiff seeking leave of thecourt to produce on record the additional documents isabsolutely in consonance with the provisions of the OrderXI Rule 1 (4) and Order XI Rule 1 (5) of the CPC.

5.3It is further submitted by the learned counsel appearing onCbehalf of the respondent herein–original defendant that inview of the specific provision by way of amendment in theCPC, amending Order XI Rule 1 of the CPC w.r.t. thesuits before the commercial court, considering Section 16of the Commercial Courts Act, Order VII Rule 14(3) shallDnot be applicable at all and what shall be applicable wouldbe Order XI Rule 1 of the CPC as applicable to the suitsbefore the commercial court.

5.4It is further submitted that as such the application submittedby the plaintiff lacked bonafides as having realized duringEthe course of the hearing of the interim injunction applicationunder Order XXXIX Rule 1 that non production of thedocuments which subsequently are sought to be producedmay come in their way and the interim injunction applicationwas kept for orders and as an afterthought the applicationwas given. It is further submitted by the learned counselFappearing on behalf of the respondent herein - originaldefendant that so far as the cause/reason shown in notproducing the additional documents other than the invoices,namely, as the documents were bulky and therefore theywere not produced, cannot be a ground, subsequently toGpermit the plaintiff to place on record the additionaldocuments which as such were in possession of the plaintiffat the time of filing of the plaint/suit.

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

H

7. We have heard the learned counsel appearing on behalf of therespective parties at length.

7.1By the impugned judgment and order, the High Court hasdismissed the petition confirming the order passed by thelearned Commercial Court dated 13.11.2019, dismissing theapplication filed by the appellant herein – original plaintiffseeking leave of the court to place additional documents onrecord. That by the said application the plaintiff prayed topermit him to place on record the invoices as mentioned inparagraph 3 of the application and also certain otheradditional documents. That the plaintiff stated in theapplication for leave to place on record additional documentsin paragraph 3 and 4 as under:- “3. That the accompanying documents along with the presentapplication in particular invoice dated 03.05.2005, invoice dated08.07.2005, invoice dated 10.08.2005, invoice dated 22.02.2006,invoice dated 10.04.2006, 1nvo1ce dated 05.06.2006, invoice dated15.07.2006, invoice dated 10.01.2007, invoice dated 14.03.2007,invoice dated 19.05.2007, invoice dated 08.07.2007, invoice dated06.09.2007, invoice dated 14.03.2007, invoice dated 01.10.2007could not be filed along with plaint being very old and not inpossession of the plaintiff at the time of filing the plaint. Now theplaintiff has found the same from the Shivalik Graphics.

4. That the documents other than above said documents could notbe filed due to voluminous records pertaining to plaintiff case couldnot be filed at the time of filing of case but the same are veryimportant for the adjudication of dispute between the parties.”

The aforesaid application has been dismissed by the learnedCommercial Court, which has been confirmed by the High Court by theimpugned judgment and order.

7.2At the outset, it is required to be noted that as such the saidapplication for leave to produce on record additionaldocuments was preferred by the appellant herein – originalplaintiff under Order VII Rule 14 (3) of the CPC. However,considering the Order XI Rule 1 as applicable to thecommercial suits by which Civil Procedure Code has beenamended with respect to the suits before the commercial A

B

C

D

E

F

G

H

Acourt and in view of the Section 16 of the CommercialCourts Act, Order VII Rule 14 (3) of the CPC shall haveno application at all. After the Order XI Rule 1 has beenamended with respect to the suits before the commercialcourts and a specific provision/procedure has beenprescribed with respect to the suits before the commercialBdivision and before the commercial court, the provision ofthe Code of Civil Procedure as has been amended by theCommercial Courts Act, 2015 shall have to be followedand any provision of any rule of the jurisdiction of the HighCourt or any amendment to the Code of Civil Procedure byCthe State Government which is in conflict of the Code ofthe Civil Procedure as amended by Commercial Courts Act,the provision of the Code of the Civil Procedure as amendedby the Commercial Courts Act shall prevail. Therefore,Order XI Rule 1 as amended by the amendment in theCommercial Courts Act, with respect to the suits beforeDthe commercial division and the commercial court, theprovisions of Order VII Rule 14 (3) shall not be applicableat all. Therefore as such the plaintiff applied the wrongprovision seeking leave of the court to place on record theadditional documents. However, considering the fact thatEthereafter, both the learned Commercial Court as well asthe High Court treated and considered and even appliedOrder XI Rule 1 of the CPC as amended by the CommercialCourts Act and as applicable to the suits filed before thecommercial division, commercial court, we proceed toconsider the application submitted by the appellant herein –Foriginal plaintiff, as if the same was submitted under OrderXI Rule 1 (4) of the CPC.

A

B

C

D

E

7.3It is true that Order XI Rule 1 of the CPC as applicable tothe commercial suits brought about a radical change and itmandates the plaintiff to file a list of all documents,photocopies of all documents, in its power, possession, controlor custody, pertaining to the suit, along with the plaint and aprocedure provided under Order XI Rule 1 is required tobe followed by the plaintiff and the defendant, when thesuit is the commercial suit. Order XI Rule 1, as applicableto commercial suits reads as under:- G

H

ORDER XI DISCLOSURE, DISCOVERY ANDINSPECTION OF DOCUMENTS IN SUITS BEFORETHE COMMERCIAL DIVISION OF A HIGH COURT ORA COMMERCIAL COURT

1. Disclosure and discovery of documents.—(1) Plaintiff shallfile a list of all documents and photocopies of all documents, in itspower, possession, control or custody, pertaining to the suit, alongwith the plaint, including:—

(a) documents referred to and relied on by the plaintiff in theplaint; (b) documents relating to any matter in question in the proceedings,in the power, possession, control or custody of the plaintiff, as onthe date of filing the plaint, irrespective of whether the same is insupport of or adverse to the plaintiff’s case;

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

(i) for the cross-examination of the defendant’s witnesses, or

(ii) in answer to any case set up by the defendant subsequent tothe 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 whetherthe documents in the power, possession, control or custody of theplaintiff are originals, office copies or photocopies and the listshall also set out in brief, details of parties to each document,mode of execution, issuance or receipt and line of custody ofeach document.

(3) The plaint shall contain a declaration on oath from the plaintiffthat all documents in the power, possession, control or custody ofthe plaintiff, pertaining to the facts and circumstances of theproceedings initiated by him have been disclosed and copies thereofannexed with the plaint, and that the plaintiff does not have anyother documents in its power, possession, control or custody.

Explanation.––A declaration on oath under this sub-rule shall becontained in the Statement of Truth as set out in the Appendix.

A

B

C

D

E

F

G

H

A(4) In case of urgent filings, the plaintiff may seek leave to rely onadditional documents, as part of the above declaration on oathand subject to grant of such leave by Court, the plaintiff shall filesuch additional documents in Court, within thirty days of filing thesuit, along with a declaration on oath that the plaintiff has producedall documents in its power, possession, control or custody, pertainingBto the facts and circumstances of the proceedings initiated by theplaintiff 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, whichwere in the plaintiff’s power, possession, control or custody andCnot disclosed along with plaint or within the extended period setout above, save and except by leave of Court and such leave shallbe granted only upon the plaintiff establishing reasonable causefor non–disclosure along with the plaint.

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

(7) The defendant shall file a list of all documents and photocopiesof all documents, in its power, possession, control or custody,Epertaining to the suit, along with the written statement or with itscounterclaim if any, including—

(a) the documents referred to and relied on by the defendant inthe written statement; F(b) the documents relating to any matter in question in theproceeding in the power, possession, control or custody of thedefendant, irrespective of whether the same is in support of oradverse to the defendant’s defence;

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

(i) for the cross-examination of the plaintiff’s witnesses,

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

(iii) handed over to a witness merely to refresh his memory.

H

(8) The list of documents filed with the written statement orcounterclaim shall specify whether the documents, in the power,possession, control or custody of the defendant, are originals, officecopies or photocopies and the list shall also set out in brief, detailsof parties to each document being produced by the defendant,mode of execution, issuance or receipt and line of custody ofeach document.

(9) The written statement or counterclaim shall contain adeclaration on oath made by the deponent that all documents inthe power, possession, control or custody of the defendant, saveand except for those set out in sub-rule (7) (c) (iii) pertaining tothe facts and circumstances of the proceedings initiated by theplaintiff or in the counterclaim, have been disclosed and copiesthereof annexed with the written statement or counterclaim andthat the defendant does not have in its power, possession, controlor custody, any other documents.

(10) Save and except for sub-rule (7) (c) (iii), defendant shall notbe allowed to rely on documents, which were in the defendant’spower, possession, control or custody and not disclosed along withthe written statement or counterclaim, save and except by leaveof Court and such leave shall be granted only upon the defendantestablishing reasonable cause for non-disclosure along with thewritten statement or counterclaim.

(11) The written statement or counterclaim shall set out details ofdocuments in the power, possession, control or custody of theplaintiff, which the defendant wishes to rely upon and which havenot been disclosed with the plaint, and call upon the plaintiff toproduce the same.

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

Order XI Rule 1 (3) provides that the plaint shall contain adeclaration on oath from the plaintiff that all documents in the power,possession, control or custody of the plaintiff, pertaining to the facts andcircumstances of the proceeding initiated by him have been disclosedand copies thereof annexed with the plaint, and that the plaintiff does nothave other documents in its power, possession, control or custody. Asper the explanation under Order 11 Rule 1 (3) a declaration on oath ABC

DEF

GH

Aunder this sub-rule shall be contained in the Statement of Truth as setout in the Appendix. Appendix I with respect to the statement of truthreads as under:- ‘‘APPENDIX-I

STATEMENT OF TRUTH

B

(Under First Schedule, Order VI-Rule 15A and Order XI- Rule3)

I —— the deponent do hereby solemnly affirm and declare asunder:

C1. I am the party in the above suit and competent to swear thisaffidavit.

2. I am sufficiently conversant with the facts of the case andhave also examined all relevant documents and records in relationthereto.

D

3. I say that the statements made in ——paragraphs are true tomy knowledge and statements made in ——paragraphs are basedon information received which I believe to be correct andstatements made in —paragraphs are based on legal advice.

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

5. I say that all documents in my power, possession, control orcustody, pertaining to the facts and circumstances of theproceedings initiated by me have been disclosed and copies thereofFannexed with the plaint, and that I do not have any other documentsin my power, possession, control or custody. 6. I say that the above-mentioned pleading comprises of a total of —— pages, each ofwhich has been duly signed by me.

7. I state that the Annexures hereto are true copies of theGdocuments 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 thetime being in force.

H

Place:

A

Date:

DEPONENT

VERIFICATION

B

I, ………………………. do hereby declare that the statementsmade above are true to my knowledge.

Verified at [place] on this [date]

DEPONENT.”.]

Therefore, the declaration on oath shall be part of the plaint. Theplaintiff has to declare on oath that all documents in its/his power,possession, control or custody, pertaining to the facts and circumstancesof the proceedings, initiated by him/it have been disclosed and the copiesthereof annexed with the plaint, and that he does not have any otherdocuments in his power, possession, control or custody. Therefore assuch it is mandated by Order XI Rule 1 for the plaintiff to disclose andproduce all the documents in his power, possession, control or custody,pertaining to the facts and circumstances of the proceedings.

C

D

7.4However, the additional documents can be permitted to bebought on record with the leave of the court as provided inEOrder XI Rule 1 (4). Order XI Rule 1 (4) provides that incase of urgent filings, the plaintiff may seek leave to relyon additional documents as part of the above declarationon oath [as provided under Order 11 Rule 1 (3)] and subjectto grant of such leave by Court, the plaintiff shall file suchadditional documents in Court, within thirty days of filingFthe suit, along with a declaration on oath that the plaintiffhas produced all documents in its power, possession, controlor custody, pertaining to the facts and circumstances of theproceedings initiated by the plaintiff and that the plaintiffdoes not have any other documents, in its power, possession,Gcontrol or custody.

G

7.5Order XI Rule 1 (5) further provides that the plaintiff shallnot be allowed to rely on documents, which were in theplaintiff’s power, possession, control or custody and notdisclosed along with plaint or within the extended period H

A

B

C

D

E

F

G

H

set out above, save and except by leave of Court and suchleave shall be granted only upon the plaintiff establishingreasonable 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 ofurgent filings the plaintiff may seek leave to rely on additionaldocuments; (ii) within thirty days of filing of the suit; (iii)making out a reasonable cause for non disclosure alongwith plaint.

7.6Therefore a further thirty days time is provided to the plaintiffto place on record or file such additional documents in courtand a declaration on oath is required to be filed by the plaintiffas was required as per Order XI Rule 1 (3) if for anyreasonable 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 withplaint. Therefore plaintiff has to satisfy and establish areasonable cause for non disclosure along with plaint.However, at the same time, the requirement of establishingthe reasonable cause for non disclosure of the documentsalong with the plaint shall not be applicable if it is averredand it is the case of the plaintiff that those documents have been found subsequently and in fact were not in theplaintiff’s power, possession, control or custody at the timewhen the plaint was filed. Therefore Order XI Rule 1 (4)and Order XI Rule 1 (5) applicable to the commercial suitshall be applicable only with respect to the documents which

were in plaintiff’s power, possession, control or custodyand not disclosed along with plaint. Therefore, the rigourof establishing the reasonable cause in non disclosure alongwith plaint may not arise in the case where the additionaldocuments sought to be produced/relied upon are discoveredsubsequent to the filing of the plaint.

8. Having considered the statutory provisions in detail, the orderpassed by the learned Commercial Court, confirmed by the High Court,rejecting the application of the plaintiff for leave to rely on the additionaldocuments is required to be tested and considered.

8.1It emerges from the record that the first suit was filed bythe plaintiff in the month of October, 2018, bearing TMNo.236 of 2018, restraining the defendant from infringingand passing-off plaintiff’s Trade Marks. That an ex-parteinterim injunction was passed in favour of the plaintiff byorder dated 29.10.2018. It appears having realized and foundthat the earlier suit was not in consonance with the provisionsof the Commercial Courts Act, the plaintiff withdrew thesaid suit being TM No.236 of 2018 on 27.07.2019 with libertyto file a fresh suit as per the Commercial Courts Act, 2015.Therefore, the second suit was filed on 31.08.2019 andwithin a period of thirty days from filing of the second suitthe appellant herein – original plaintiff preferred the presentapplication seeking leave of the court to file additionaldocuments. In the application, it was specifically mentionedthat so far as the invoices are concerned, the same werenot in its possession at the time of the filing of the plaint andso far as the other documents are concerned they were notfiled due to theybeing voluminous. Therefore, so far as theinvoices sought to be relied on/produced as additionaldocuments ought to have been permitted to be relied on/produced as it was specifically asserted that they were notin his possession at the time of filing of the plaint/suit.

8.2The submissions on behalf of the defendant that the causeshown for non production was an afterthought cannot beaccepted for the simple reason that the application was filedwithin a period of thirty days from the date of filing of thesecond suit and at the time when the application for interiminjunction under Order XXXIX Rule 1 was not fully heardand kept for orders.

8.3Even the reason given by the learned Commercial Courtthat the invoices being suspicious and therefore not grantingleave to produce the said invoices cannot be accepted. Atthe stage of granting leave to place on record additionaldocuments the court is not required to consider thegenuineness of the documents/additional documents, thestage at which genuineness of the documents to beconsidered during the trial and/or even at the stage of A

BC

D

E

F

G

H

deciding the application under Order XXXIX Rule 1 thattoo while considering prima facie case. Therefore, thelearned Commercial Court ought to have granted leave tothe plaintiff to rely on/produce the invoices as mentioned inthe application as additional documents.

A

B8.4Now, so far as the other documents sought to be relied on/produced as additional documents other than the invoicesare concerned the same stands on different footing. It isnot disputed and in fact it was specifically admitted and sostated in the application that those additional documentsother than the invoices were in their possession but notCproduced being voluminous and that the suit was filedurgently. However, it is to be noted that when the secondsuit was filed, it cannot be said to be urgent filing of the suitfor injunction, as the first suit was filed in the month ofOctober, 2018 and there was an ex-parte ad interimDinjunction vide order dated 29.10.2018 and thereafter plaintiffwithdrew the said first suit on 27.07.2019 with liberty to filea fresh suit as per the Commercial Courts Act and thesecond suit came to be filed on 31.08.2019 after period ofone month of the withdrawal of first suit. Therefore thecase on behalf of the plaintiff that when the second suitEwas filed, it was urgently filed therefore, the additionaldocuments sought to be relied upon other than the invoiceswere not filed as the same were voluminous cannot beaccepted. And therefore as such Order XI Rule 1 (4) shallnot be applicable, though the application was filed withinFthirty days of filing of the second suit. While seeking leaveof the court to rely on documents, which were in his power,possession, control or custody and not disclosed along withplaint or within the extended period set out in Order XIRule 1 (4), the plaintiff has to establish the reasonable causefor non disclosure along with plaint.

G

8.5In view of the facts and circumstances narratedhereinabove and in view of the filing of the first suit in themonth of October, 2018; the ex-parte ad interim injunctionorder in favour of the plaintiff dated 29.10.2018; withdrawalof the first suit on 27.07.2019 and subsequently the filing of H

the second suit on 31.08.2019, non filing of the additionaldocuments other than the invoices on the ground of theybeing voluminous cannot be said to be a reasonable causefor non disclosure/filing along with plaint. There wassufficient time gap between the filing of the first suit andfiling of the second suit i.e. approximately 10 months andtherefore when the second suit was filed the plaintiff washaving sufficient time after filing of the first suit, to file theadditional documents other than the invoices at the timewhen the second suit was filed. Therefore as such, boththe courts below have rightly not permitted the plaintiff torely upon the documents, other than the invoices as additionaldocuments in exercise of the powers under Order XI Rule1 (4) read with Order XI Rule 1 (5).

9. In view of the above and for the reasons stated above, theplaintiff can be permitted to rely on the documents in the form of invoicesas mentioned in the application as additional documents. However, suchproduction shall not affect the outcome of interim injunction applicationsubmitted under Order XXXIX Rule 1 of the CPC, which as such isreported to be kept for orders.

10. In view of the above and for the reasons stated above, thepresent appeal is partly allowed. The impugned judgment and orderpassed by the High Court confirming the order passed by the learnedCommercial Court dismissing the application submitted by the plaintiffto rely on/produce the documents mentioned in application dated13.09.2019, as additional documents is quashed and set aside to the extentnot granting leave to the appellant herein – original plaintiff to rely on/produce the invoices mentioned in the application dated 13.09.2019 andconsequently the leave is granted to the appellant herein – original plaintiffto produce/rely on the invoices mentioned in the application as additionaldocuments. Rest of the order not granting leave to appellant herein –original plaintiff to rely on/produce the documents other than the invoicesas observed hereinabove, as additional evidence is hereby confirmed.The present appeal is accordingly partly allowed to the aforesaid extent.No costs.

Appeal partly allowed.

AB

C

D

E

F

G

H