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JUDGEMENT-Polyflor Limited vs. A.N. Goenka and Ors
JUDGEMENT-Polyflor Limited vs. A.N. Goenka and Ors
% CS(OS) 504/2004
versus
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
O.A. No.84/2016
3. The learned Joint Registrar in his order takes note of the fact that the
original suit was filed in the year 2004; the documents sought to be
produced were neither filed alongwith the plaint, nor at the stage of
admission/denial of documents, nor even at the stage of framing of issues on
02.12.2013; PW-1 is under cross examination and had been substantially
cross examined when the application was moved on 27.01.2016. The
learned Joint Registrar has observed that vague and non convincing reasons
have been given by the plaintiff for not filing the documents earlier, and
unjustifiable reason has been given as to why, when the documents were in
the domain and control of the plaintiff, the same were not filed at the
appropriate stage, or even at the stage of framing of issues.
5. The submission of learned counsel for the petitioner is that the stage
at which the application under Order 7 Rule 14(3) was moved is not
relevant. What is relevant to be examined is whether the documents are
germane. It also needs to be appreciated that the documents are audited
accounts of the plaintiff company, and their authenticity is beyond doubt.
Learned counsel submits that no prejudice would have been suffered by the
defendant even if the plaintiff was permitted to place on record the
additional documents at this stage, and the defendant could have been
compensated by way of costs for the inconvenience suffered.
6. Learned counsel submits that the power of the court to permit filing of
additional documents at any stage of the proceedings is not taken away
under the law, and in the interest of justice, the court can grant permission to
produce additional documents even at the final stage of proceedings, and
even at the appellate stage. In support of his submission, he has placed
reliance on a judgment of the Division Bench of Bombay High Court in
Smt. Shantibai K Vardhan v. Meera G Patel, Appeal No.86/2008 decided
on 29.08.2008.
7. Learned counsel for the defendants has appeared even before issuance
of notice in this chamber appeal, and he has advanced his submissions.
10. Learned counsel for the defendants has sought to place reliance upon
the judgment of this Court in Gold Rock World Trade Ltd. Vs. Veejay
Lakshmi Engineering Works Ltd., (2008) 149 PLR 40 in support of his
11. The plaintiff has claimed damages by alleging passing off by the
defendants of its trademark “POLYFOR”. The plaintiff is now seeking to
produce the aforesaid documents, namely copies of the annual reports for
the period from 1997 onwards to substantiate its plea with regard to the
sales, popularity and goodwill enjoyed by the plaintiff in respect of its
trademark “POLYFOR”.
12. Order VII Rule 14 (1) provides that: “Where a plaintiff sues upon a
document or relies upon document in his possession or power in support of
his claim, he shall enter such documents in a list, and shall produce it in
court when the plaint is presented by him and shall, at the same time deliver
the document and a copy thereof, to be filed with the plaint”.
13. Sub-rule (2) of Order VII Rule 14 provides that: “Where any such
documents not in the possession or power of the plaintiff, he shall, wherever
possible, state in whose possession or power it is”.
14. Thus, when the suit was filed, the plaintiff was obliged to produce all
documents which it sought to rely upon in its power and possession. If,
according to the plaintiff, the annual reports from 1997 to 2003-04 were not
available with it, under Order VII Rule 14 (2), the plaintiff was obliged to
state in whose possession and power the said documents, namely, the annual
reports, were.
15. During the course of submissions, learned counsel for the plaintiff has
submitted that under the law, as prevalent in United Kingdom, the plaintiff
16. Order VII Rule 14 (3) mandates that: “A document which ought to be
produced in Court by the plaintiff when the plaint is presented, or to be
entered in the list to be added or annexed to the plaint but is not produced
or entered accordingly, shall not without the leave of the Court, be received
in evidence on his behalf at the hearing of the suit”. Thus, as a matter of
rule, the plaintiff is prohibited from leading in evidence a document which
he ought to have produced when the plaint was presented. The exception to
this rule is that, where the Court grants leave to the plaintiff, the document
may be permitted to be led in evidence at the hearing of the suit.
17. Thus, the issue is, whether in the above noted facts and circumstances,
the plaintiff is entitled to grant of such leave. In the present case, the
plaintiff’s witness PW-1 is under cross-examination and has already
undergone a substantial portion of his cross-examination. To grant leave to,
and permit the plaintiff to file and lead in evidence additional documents at
this stage would mean that the defendants would be put to serious prejudice.
The defendants have not had the occasion to deal with the said documents.
Had the documents now sought to be produced, been produced at the
relevant time, i.e. at the stage of filing of the suit, or at least at the time when
20. Sub-rule (5) of Rule 1 states that: “The plaintiff shall not be allowed
to rely on documents, which were in the plaintiff’s power, possession,
control or custody and not disclosed along with plaint or within the
extended period set out above, save and except by leave of Court and such
22. Reliance placed by learned counsel for the plaintiff on the decision in
Smt. Shantibai K Vardhan (supra) is of no avail. In this case, the Division
Bench was dealing with an appeal from an order passed by the learned
Single Judge, whereby the learned Single Judge had granted leave to the
defendant to lead evidence and place on record certain documents referred to
in the affidavit of documents filed by the defendant. The factual background
of the said case was that the plaintiffs had filed a suit for specific
performance on 16.01.1979. On 25.03.1980, the defendants had filed their
written statement. Pertinently, in February, 1995, an affidavit of documents
was filed by the defendants giving a list of 59 documents which were
referred to and relied upon by the defendants. The plaintiffs led their
evidence on the issues which had been framed, whereafter the evidence was
closed by the plaintiffs. The defendants made a statement that they do not
wish to lead evidence. The matter was taken up for final disposal, and
during the course of hearing, the plaintiffs were advised to amend their
plaint. Accordingly, they sought amendment of the plaint. The said
application was allowed on 16.06.2007 and, significantly, direction was
23. From the above, it would be seen that the documents which had been
referred to and relied upon by the defendants, as early as in 1995, were
sought to be produced and lead in evidence by the defendants. The occasion
for the same had arisen as the plaintiffs had been permitted to amend the
plaint, and leave had been granted by the Court to both the parties to lead
further evidence. However, the fact situation in the present case is entirely
different, and therefore, the decision in Smt. Shantibai K Vardhan (supra)
has absolutely no application in the facts of the present case.
24. In Gold Rock World Trade Ltd. (supra), a similar application under
“3. ... ... ... A plain reading of Order 7 Rule 14 (3) makes it
clear that a document which ought to be produced in Court by
the plaintiff when the plaint is presented, or to be entered in the
list to be added or annexed to the plaint but is not produced or
entered accordingly, shall not, without the leave of the Court,
be received in evidence on his behalf at the hearing of the suit.
The learned counsel for the plaintiff submits that leave of the
Court ought to be granted to the plaintiff for producing the
additional documents referred to in the application under
Order 7 Rule 14 and as also for calling the witness for
producing the documents mentioned in the other application.
The learned counsel for the plaintiff referred to the decision of
the Supreme Court in the case of Salem Advocate Bar
Association, Tamil Nadu v. Union of India: (2005) 6 SCC 344.
With reference to paragraph 13 thereof, the learned counsel
submitted that the Court may permit leading of such evidence
even at a later stage subject to any terms that may be imposed
upon by the Court which may be just and proper.
Thus, the Supreme Court held that the insertion of Rule 17-A
was only clarificatory of the in-built power of the Court to
permit parties to produce evidence not known to them earlier
or which could not be produced in spite of due diligence. The
learned counsel for the plaintiff sought to invoke this in-built
25. In my view, the aforesaid judgment squarely applies to the facts of the
present case. It cannot be said by the plaintiffs that they were not aware of
26. Thus, I find absolutely no merit in the present chamber appeal and
dismiss the same, leaving the parties to bear their respective costs.
VIPIN SANGHI, J