1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.6561/2008 Yogesh Kumar Versus Additional District Judge (Fast Track) No.2, Allwar & Another Date of Order :: 11th August, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. R.N. Mathur for the petitioner Mr. R.K. Mathur for the respondent no.2 BY THE COURT: Admit. Mr. Mathur appears for respondent no.2. The respondent no.1 is only a formal party, therefore, its service is dispensed with. 2. Heard learned counsel for the parties. 3. The plaintiff-respondent no.2 filed a suit under Section 27(2) readwith Section 134, 135 of the Trade Mark Act, 1999 and under Section 55 of Copy-right Act, 1957 against defendant-petitioner in the trial court. The said suit was fixed for cross-examination of plaintiff's witnesses and at that stage, the defendant-petitioner filed an application dated 26/30th May, 2008 under Order 8 Rule 1 (3) CPC alongwith certain original documents to be 2 placed on record and to recall the plaintiff for cross-examination in respect of these documents. The application was contested by the plaintiff. The trial court vide its order dated 2nd July, 2008 dismissed the application. Being aggrieved with the same, the defendant / petitioner has preferred this writ petition. 4. The learned counsel for the petitioner contended that although he had a right to file the original documents on record when PW-1 Rajan Jhiriwal was examined, but at the relevant time, he was not in possession of the same. He has already placed on record the photo-copies of these documents, which are very relevant and will be required for proper adjudication of the case. The matter is fixed for cross-examination of plaintiff's witnesses itself. He will cross-examine the plaintiff only in respect of these documents. The provisions relating to Order 8 Rule 1(3) CPC are procedural in nature and should have been construed liberally by the trial court. He, therefore, contended that impugned order be set-aside and his application may be allowed and PW-1 may be recalled for cross-examination on these new documents. 5. The learned counsel for the 3 respondents contended that petitioner had an opportunity to produce all these documents when statement of PW-1 Rajan Jhiriwal was recorded in the trial court. He further contended that he has already cross-examined PW-1 and he only wants to delay the matter or he wants to cross- examine again on all the points and in respect of present documents also. He further contended that order passed by the trial court is absolutely justified and no indulgence should now be granted to the petitioner and writ petition be dismissed. 6. I have considered the submissions of learned counsel for the parties and examined the impugned order dated 2nd July, 2008 alongwith other documents placed on record with the writ petition. This is a suit under Section 27(2) readwith Section 134, 135 of the Trade Mark Act, 1999 and under Section 55 of Copyright Act, 1957. It is true that PW-1 Rajan Jhiriwal has already been cross-examined by the defendant petitioner on 21st May, 2008 and on that day he had an opportunity to produce on record these original documents and PW-1 could have been cross-examined on these documents also, but for the reasons mentioned in the 4 application he could not produce the original documents and could not cross-examine the PW-1 on these documents. The provisions relating to Order 8 Rule 1 (3) CPC are procedural in nature and they are required to be construed liberally. Order 8 Rule 1(3) CPC is reproduced as under: “A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.” 7. The above quoted provision makes it clear that the defendant may produce the document at subsequent stage with leave of the Court. The suit is fixed for cross-examination of plaintiff's witnesses. The procedural law is hand made law and should be construed in such a manner so as to advance justice to the parties. Normally the application should not be rejected unless the same is malafide or appears to have been filed with ulterior motive. In my view, the trial court committed an illegality by rejecting the application of the defendant petitioner and in the facts and circumstances of the present case, the same is allowed. 8. Consequently the writ petition is allowed. The impugned order dated 2nd April, 5 2008 is set-aside. The application filed by the petitioner under Order 8 Rule 1 (3) dated 26/30th May, 2008 is allowed. The documents annexed with the application are ordered to be taken on record. The defendant petitioner is permitted to cross-examine PW-1 Rajan Jhiriwal again only on these documents and he will not be allowed to cross-examine PW-1 on any other point, on which cross-examination has already been completed. The matter has been delayed on account of some negligence on the part of the defendant, therefore, it is directed that the defendant will pay a cost of Rs. 3000/- to the plaintiff within a period of 10 days, failing which the above referred documents will not be taken on record. 9. So far as this writ petition is concerned, the cost is made easy. (NARENDRA KUMAR JAIN),J. DK 6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Misc. Stay Application No. 1369/2008 In S.B. Civil Writ Petition No.6561/2008 Yogesh Kumar Versus Additional District Judge (Fast Track) No.2, Allwar & Another Date of Order :: 11th August, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. R.N. Mathur for the petitioner Mr. R.K. Mathur for the respondent no.2 Consequent upon the disposal of writ petition, the stay application, filed therewith, does not survive and the same stands disposed of. (NARENDRA KUMAR JAIN),J. DK