SCA/10929/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10929 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= ARVINDBHAI RAMBHAI PATEL & 2 - Petitioner(s) Versus RAMDEV FOOD PRODUCTS LTD - Respondent(s) ========================================================= Appearance : MR YATIN R PATEL for Petitioner(s) : 1 - 3. MRS VD NANAVATI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/09/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioners – original defendant Nos.1,5 and 7 have prayed for an SCA/10929/2008 2/10 JUDGMENT appropriate Writ, direction and/or order quashing and setting aside the order dated 12.08.2008 passed by the learned Judge of City Civil Court at Ahmedabad passed below Exh.193 in Civil Suit No.828 of 2000 rejecting the application filed by the petitioners – original defendant Nos.1,5 and 7 for appointment of Court Commissioner to record evidence of the parties and their witnesses within such time as may be directed and be further pleased to record the evidence in the said matter by a Court Commissioner appointed by the Court. 2. In the suit instituted by the respondent herein – original plaintiff and after original plaintiff filed affidavit for examination-in-chief on behalf of the plaintiff under Order XVIII Rule 4 of the Code of Civil Procedure, 1908 (for short 'C.P.C.') vide Exh.193 dated 30.06.2008, the petitioners herein – original defendant Nos.1,5 and 7 submitted application below Exh.193 requesting the learned Judge, City Civil Court, Ahmedabad to appoint Court Commissioner to record the evidence of the parties and their witnesses under Order XVIII Rule 4 SCA/10929/2008 3/10 JUDGMENT read with Section 151 of the CPC. It was contended on behalf of the original plaintiff that pursuant to the order passed by the Hon'ble Supreme Court suit which is claiming infringement of trademark, copyright and passing off and claiming account of profits and other reliefs has been expedited and original plaintiff has filed one affidavit of Mr.Vijay Dodia as witness and the plaintiff has produced in all 510 documents. The defendants have also produced up till now 374 documents and thus documentary evidence by both the parties in the proceedings are voluminous and therefore, when the trial of the suit is expedited by the Hon'ble Supreme Court it is necessary and in the interest of justice that evidence of both the parties is recorded by the Commissioner appointed by the Court instead of recording such evidence in the Court itself. It was submitted that under Order XVIII Rule 4 of the CPC evidence can be recorded in the Court or before the Commissioner appointed by the Court. Therefore, both options for recording of the evidence are open. It was requested to appoint Court Commissioner to record the evidence of the parties and witnesses within SCA/10929/2008 4/10 JUDGMENT stipulated time. The application was opposed by the plaintiff vide submitting reply at Exh.303 submitting that the suit involves complex question of title to the registered trade marks owned by the plaintiff and there are highly contested factual aspects on which evidence is required to be taken. Some contested documents produced will have to be referred and certain spontaneous questions about the admissibility and proof thereof will be required to be decided during the recording of the evidence. It was submitted that power of the Court under Order XVIII Rule 4 of the CPC is required to be exercised with circumspection having regard to the facts and circumstances of the case. It was also further submitted that Trade Mark Act and Copy right Act are special legislations, which require elaboration of complex questions of law during cross-examination and looking to the highly contested facts it is absolutely necessary that cross-examination be recorded before the Court only. It was further submitted that again evidence is likely to be curtailed if it is recorded by the Court who will be deciding the objections to the irrelevant questions SCA/10929/2008 5/10 JUDGMENT on the spot whereas the Commissioner will have to record questions, objections and then refer them to the Court. It is also submitted that still no facility for recording evidence on commission is provided in the Court inspite of Hon'ble Supreme Court referring the matter to the Government whether it will provide for the additional cost for recording evidence on commission and no decision is taken by the Government. Therefore, it was requested to dismiss the said application. Affidavit-in-rejoinder to the reply to the plaintiff was submitted by the petitioner vide Exh.305. That thereafter, after considering rival submissions the learned Judge, City Civil Court, Ahmedabad by impugned order dated 12.08.2008 dismissed the said application. Being aggrieved and dissatisfied with the order passed by the learned Judge, City Civil Court at Ahmedabad dated 12.08.2008 passed below Exh.193 in Civil Suit No.828 of 2000, the petitioners – original defendant Nos.1,5 and 7 have preferred the present Special Civil Application under Article 227 of the Constitution of India. SCA/10929/2008 6/10 JUDGMENT 3. Mr.Unmesh Shukla, learned Advocate appearing on behalf of the petitioners has vehemently submitted that looking to the object for amendment in Order XVIII Rule 4 of the CPC to save the time and to see that the trial is proceeded further expeditiously, the learned City Civil Judge ought to have allowed the application by directing to record evidence by the Commissioner appointed by the Court. It is submitted that looking to the pendency of the work with the learned Judge, it will not be possible for the learned Judge to decide and dispose of the Suit expeditiously more particularly considering voluminous documentary evidence produced by both the sides. It is submitted that as such no prejudice will be caused to the plaintiff if evidence is recorded by the Commissioner as contemplated under Order XVIII Rule 4 of the CPC. Therefore, it is requested to allow the present Special Civil Application. 4. The petition is opposed by Ms.V.D.Nanavati, learned Advocate for the respondent – original plaintiff. It is submitted that looking to the complex question of law and facts and considering the SCA/10929/2008 7/10 JUDGMENT fact that the suit involves dispute with respect to Trade Mark Act and Copyright Act, which are special legislations, which requires elaboration of complex questions of law during cross-examination and therefore, in the facts and circumstances of the case, it will be proper that evidence is recorded by the Court. It is submitted that still the learned Judge can fix his own time bound schedule. Therefore, it is requested to dismiss present Special Civil Application. 5. Heard the learned Advocates appearing on behalf of the respective parties. 6. At the outset, it is to be noted that some reasonings given by the learned Judge, City Civil Court, Ahmedabad while dismissing the application, this Court is not satisfied at all to the effect that the learned Judge has observed that the learned Advocates for the parties are active practitioners so they are not in a position to remain present before the Court Commissioner except holidays, therefore, if Court Commissioner is appointed, the matter is likely to be delayed beyond reasonable period. However, so SCA/10929/2008 8/10 JUDGMENT far as other reasonings are concerned to the effect that present suit involves complex question of title to the registered trade marks owned by the plaintiff and that it is highly contested matter and the suit is under Trade Mark Act and Copyright Act which requires elaboration of complex questions of law during cross examination and therefore, it is not fit to record evidence by appointing Court Commissioner is a valid reason. Under the circumstances, this Court's interference against the impugned order is not warranted. It is not that in each and every case evidence can be recorded by the Commissioner appointed by the Court. It ultimately depends upon the facts and circumstances of the case, the complex question involved in the Suit, question of recording evidence by the Commissioner can be considered. 7. Insofar as the submission of the learned Advocate for the petitioners that in view of the direction of the Hon'ble Supreme Court to decide and dispose of the Suit expeditiously and looking to the voluminous documentary evidence, it will not be possible for the learned Judge to go on with the SCA/10929/2008 9/10 JUDGMENT Suit, if he is to record the evidence is concerned, same can be taken care by the learned City Civil Judge, Ahmedabad who can fix his own time schedule and even restrict the learned Advocates from asking unnecessary irrelevant question and wasting of the time. In the facts and circumstances of the case, while dismissing the present Special Civil Application, it is observed that the learned Judge, City Civil Court, Ahmedabad is directed to see that recording of evidence is completed as early as possible so as to dispose of the suit expeditiously. 8. For the reasons stated above, the petition deserves to be dismissed and is accordingly dismissed. However, the learned trial Judge is directed to see that the evidence is recorded as expeditiously and may be on particular days and on day to day basis looking to his own other priorities and to see that Suit is disposed of as expeditiously as possible considering direction issued by the Hon'ble Supreme Court. [M.R.Shah,J.] SCA/10929/2008 10/10 JUDGMENT satish