SUDHIR KUMAR @ S. BALIYAN versus VINAY KUMAR G.B.
[2021] 7 S.C.R. 731, Supreme Court of India, 2021
Outcome: Case Partly allowed (Granted)
Segment: Ratio
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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 filed
the commercial suit claiming a decree of permanent injunction
against the defendant from using the Trade Mark of appellant –
Appellant filed an application u/Or.VII, r.14(3) and sought to file
additional documents – The said application was dismissed by the
Commercial Court –The High Court confirmed the order by the
Commercial Courts – On appeal, held: Or. XI, R.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 Or.VII, R.14 (3) were not applicable – Therefore, as
such the plaintiff applied the wrong provision seeking leave of the
court to place on record the additional documents – Now, before
the Supreme Court, the application submitted by the appellant was
considered submitted u/Or. XI R.1(4) of the CPC as both the
Commercial Court and the High Court had considered and applied
Or.XI, R.1 –In the said application for additional documents, 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 documents
ought to have been permitted – Insofar as, the 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 – Both the courts below rightly
not permitted the plaintiff to rely upon the documents, other than
the invoices as additional documents in exercise of the powers
u/Or. XI R.1 (4) r/w. Or. XI R. 1 (5).
[2021] 7 S.C.R. 731
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SUPREME COURT REPORTS
[2021] 7 S.C.R.
Partly allowing the appeal, the Court
HELD: 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 passing-off plaintiff’s Trade Marks. That an ex-parte 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 wasfiled
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 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.[Para 8.1][747-A-E]
2. 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 exparte 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
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that when the second suit was filed, it 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. [Para
8.4][748-B-G]
3. In view of the facts and circumstances and in view of the
filing of the first suit in the month of October, 2018; the ex-parte
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 alongwith plaint. There was sufficient time
gap between the filing of 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). [Para 8.5][748-G-H; 749-A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.5620 of
2021.
From the Judgment and Order dated 06.04.2021 of the High Court
of 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.
SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.
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SUPREME COURT REPORTS
[2021] 7 S.C.R.
The Judgment of the Court was delivered by
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 13.11.2019 passed by the learned
Commercial Court, dismissing the application filed by the appellant under
Order 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 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
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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 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 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.
SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.
[M. R. SHAH, J.]
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SUPREME COURT REPORTS
[2021] 7 S.C.R.
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 (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 non-filing 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 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
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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.
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 ex-parte 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 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.
SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.
[M. R. SHAH, J.]
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SUPREME COURT REPORTS
[2021] 7 S.C.R.
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 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 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.
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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
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
SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.
[M. R. SHAH, J.]
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SUPREME COURT REPORTS
[2021] 7 S.C.R.
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 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 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:-
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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;
(c) nothing in this Rule shall apply to documents produced by
plaintiffs 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 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 sub-rule shall be
contained in the Statement of Truth as set out in the Appendix.
SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.
[M. R. SHAH, J.]
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SUPREME COURT REPORTS
[2021] 7 S.C.R.
(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.
(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 cross-examination 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.
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(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 sub-rule (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 sub-rule (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 non-disclosure 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 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
SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.
[M. R. SHAH, J.]
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under this sub-rule 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:-
‘‘APPENDIX-I
STATEMENT OF TRUTH
(Under First Schedule, Order VI-Rule 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 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 above-
mentioned 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.
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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 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 power, possession, control or custody and not
disclosed along with plaint or within the extended period
SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.
[M. R. SHAH, J.]
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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 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 passing-off plaintiff’s Trade Marks. That an ex-parte
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 theybeing voluminous. Therefore, so far as the
invoices sought to be relied on/produced as additional
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
SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.
[M. R. SHAH, J.]
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deciding the application under Order XXXIX Rule 1 that
too while considering prima facie case. 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 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 ex-parte 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
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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 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 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.
Ankit Gyan
Appeal partly allowed.
SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.
[M. R. SHAH, J.]