In the opinion of this court, if the petitioner seeks to bring
the documents on record to maintain the element of surprise,
the documents have to be put to the witness to confront him at
the time of cross-examination and are not required to be
produced by making an application for production of the same.
Therefore, the application made by the petitioner cannot be
treated as one under sub-rule (4) of rule 14 of Order VII of the
Code. However, since it has been contended on behalf of the
petitioner that the documents are sought to be produced on
record under sub-rule (4) of rule 14 of Order VII of the Code,
while upholding the order passed by the trial court, with a view
to balance equities, it is clarified that it would be permissible
for the petitioner to produce such documents for the purpose
of confronting the witness at the time of cross examination of
such witness for which purpose it would not be necessary to
obtain leave of the court.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4826 of 2015
RAMDEV FOOD PRODUCTS PVT LTD
V
ARVINDBHAI RAMBHAI PATEL & 7.
CORAM: MS.JUSTICE HARSHA DEVANI
Date : 04/05/2015
Citation; AIR 2015(NOC)1188 GUJ
1. Rule. Mr J.R. Shah, learned advocate waives service of
notice of rule on behalf of the respondents. Since common
questions of law are involved in both these petitions and the
facts and the parties are also common, the same were taken
up for hearing together and are disposed of by this common
judgment.
2. The facts giving rise to the present petitions are that the
petitioner (original plaintiff) instituted a suit being Civil Suit
No.828 of 2000 on 10.2.2000 for infringement of the
trademark, infringement of copyright and passing off action
against the respondents (original defendants). The petitioner
also prayed for a decree of a sum of Rs.5,00,00,000/- (rupees
five crores) as and by way of damages. The said civil suit is at
the stage of trial. The plaintiff’s evidence has already been
adduced and the matter stands at the stage of crossexamination
of the defendants’ witness Shri Arvindbhai
Rambhai Patel. On 27.12.2012, Shri Arvindbhai Rambhai Patel
submitted affidavit of examination-in-chief at Exhibit-953
wherein at paragraph 15 thereof, it had been stated as under:-
“On 11.07.1994, Defendant No.8 M/s. Ramdev Exports
made application in the Trade Marks Office for
registration of the logo ‘Ramdev’ in globe bearing
Application No.633654. Such application was made after
the purported assignment of trademark logo “Ramdev
Masala” (TMR No.447700) in favour of the Plaintiff
Company. Said application was signed by Hasmukhbhai,
Pravinbhai and Rakeshbhai the Defendant No.3 on behalf
of the Defendant No.8 M/s. Ramdev Exports and they
were also a Managing Director, Whole time Director
and/or Director of Plaintiff Company. Subsequently,
Hasmukhbhai clearly admitted that they applied for
registration as joint owners in a letter submitted in Trade
Mark Office on 01.02.2002. He was a Chairman and
Managing Director of the Plaintiff Company at that time.”
3. It is the case of the petitioner that in the joint written
statement filed on behalf of the defendants No.1, 5 and 7 on
15.1.2007, incomplete facts pertaining to Trademark
Application No.633564 were mentioned; that the respondents
(original defendants) surreptitiously did not mention any fact
regarding the applications and affidavits submitted before the
Trade Marks Registry subsequent to the filing of the suit for
infringement; the said affidavits and applications were never
served upon the petitioner in connection with the proceedings
of Trademark Application No.633564 and hence, such facts
regarding subsequent applications and affidavits filed before
the Trade Mark registry were not within the knowledge of the
petitioner; that the respondents/defendants produced a copy
of the original trademark application at Exhibit-171, but did not
produce on record the applications and affidavits filed
thereafter by them. It is further averred in the petition that the
cross-examination of the respondent No.1 had commenced on
14.10.2014 whereafter the said witness was further crossexamined
on 17.11.2014, 28.11.2014 and 5.12.2014.
According to the petitioner, in the cross-examination, it came
to its notice that even though the Trade Mark Application
No.633564 was made jointly by Shri Hasmukhbhai Patel,
Pravinbhai Patel and Rakeshbhai Patel in their capacity as coowners
carrying on business in the name and style of Ramdev
Exports, the respondent No.1 in paragraph 15 of his affidavit of
examination-in-chief had stated that the said application was
made by the partnership firm, namely, M/s. Ramdev Exports
(respondent No.8 herein). That the petitioner upon
examination of the records found that the notice of publication
of Trade Mark Application No.633564 in the Trade Marks Journal
No.1281 (Supplementary) dated 21.10.2002 indicated the
names of Patel Arvindbhai Rambhai (respondent No.1), Patel
Rakeshbhai Arvindbhai (respondent No.3) and Patel Chiragbhai
Arvindbhai (respondent No.5.) Therefore, the petitioner
through its representative carried out search of the record of
the Trade Mark Registry relating to Trade Mark Application
No.633564 and Opposition No.AMD-81397 filed by the
petitioner and obtained a certified copy from the Trade Mark
Registry on 4.12.2014. That from the documents received from
the Trade Marks Registry, the petitioner came to know that
after institution of the suit for infringement against the
respondents, an application TM-16 was filed by the
respondents for deleting the names of two of the original
applicants viz. Shri Hasmukhbhai Rambhai Patel and Shri
Pravinbhai Rambhai Patel and for substitution of the names of
the respondent No.1 Shri Arvindbhai Rambhai Patel and
respondent No.3 Chirag Arvindbhai Patel in their place. Vide
order dated 9.1.2002, the application filed by the respondents
before the Trade Mark Registry was allowed and the names of
Shri Hasmukhbhai Rambhai Patel and Shri Pravinbhai Rambhai
Patel were deleted and substituted by the names of Shri
Arvindbhai Rambhai Patel and Chirag Arvindbhai Patel
retrospectively, from the date of the original application,
without any notice to the original applicants. It is further the
case of the petitioner that it came to its knowledge during the
pendency of proceedings of Civil Suit No.828 of 2000 that the
respondents vide another application TM-16 dated 4.2.2002
had got the date of user inserted whereby the respondents
claimed to have used the trademark applied for on its goods
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since 1992. According to the petitioner the documents
obtained from the Trade Mark Registry are relevant to the
disputes involved in the suit and are also necessary for the
purpose of cross-examination of the defendants’ witness so as
to contradict the statements made by the witness in the
affidavit of examination-in-chief and in the course of crossexamination.
The petitioner, therefore, filed an application
Exhibit-977 on 5.12.2014 for production of the certified
photocopies of the documents on the record of the Trade Marks
Registry relating to Trade Mark Application No.633564 and
Opposition No.AMD 81397. The respondent No.1 filed his reply
to the said application for production of documents and the
petitioner filed its rejoinder thereto. The petitioner also filed an
application under Order VI rule 17 of the Code of Civil
Procedure, 1908 (hereinafter referred to as “the Code”) at
Exhibit-979 for amendment of the plaint. The respondent No.1
filed his reply to the said application and in response thereto,
the petitioner herein filed its affidavit-in-rejoinder. Both the
applications for production of documents and as well as for
amendment of the plaint came to be heard together and by a
common order dated 5.2.2015 passed below Exhibits-977 and
979 in Civil Suit No.828 of 2000, both the applications came to
be rejected, which has given rise to the present petitions.
4. Mr. Dhaval Dave, Senior Advocate, learned counsel with
Mr. Anal Shah, learned advocate for the petitioner in both the
petitions, invited the attention of the court to the facts of the
case. It was pointed out that the petitioner company has been
using the registered trademark Ramdev since the year 1990. In
the year 1991, a registered user agreement was executed with
the defendant No.7 to use the trademark Ramdev for a period
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of seven years till 31.3.1998. It was submitted that there was a
clear understanding that the defendants have the right to use
the registered trademark for the limited purpose of selling
products of the petitioner company at the retail counters.
However, the respondents No.1 to 6 started selling their own
products at cheaper rates under the trademark ‘Ramdev’ and
hence, the petitioner was constrained to institute the above
referred suit. The attention of the court was invited to the
examination-in-chief of the respondent No.1 to point out that
the respondent No.8 M/s. Ramdev Exports was constituted on
19.11.1992 as a partnership firm for the purpose of
undertaking export business. It was pointed out that
Hasmukhbhai, Pravinbhai and the respondent No.3 were the
first partners of the respondent No.8. When the respondent
No.8 was formed, all these three partners were there in the set
up of the company as Chairman, Managing Director and
Director. On 11.7.1994, an application for registration of trade
mark ‘Ramdev’ in a Globe was made, which, according to the
respondent No.1 was for and on behalf of the respondent No.8
firm and that such application was given by three persons
Hasmukhbhai, Pravinbhai and the respondent no.3. Therefore,
in substance, the respondent No.1 is relying upon the
application made in July, 1994. Referring to the crossexamination
of the respondent No.1, it was pointed out that it
was necessary to produce the documents in question to
confront the said witness. Reference was made to the
provisions of rule 14 of Order VII of the Code, which bears the
heading “Production of document on which plaintiff sues or
relies”and more particularly, sub-rules (3) and (4) thereof.
4.1 Reliance was placed upon the decision of the Supreme
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Court in the case of Billa Jagan Mohan Reddy v. Billa
Sanjeeva Reddy, 1994 (4) SCC 659, for the proposition that it
is settled law that if documents are found to be relevant to
decide the real issue in controversy, and when the court feels
that interest of justice requires that the documents may be
received, exercising the power under Order 41 rule 27 CPC, the
appellate court would receive the documents and consider
their effect thereof. When such is the position, when
documents are sought to be produced in the trial court, before
the arguments are completed, normally, they may be received;
an opportunity given to prove them and rebuttal if any, and
their relevance and effect they may have, be considered in
deciding the issues arising in controversy. It was pointed out
that the examination-in-chief was submitted on 27.12.2012
and the cross-examination took place on 14.10.2014,
17.11.2014, 28.11.2014 and 5.12.2014 and that on the last
date of cross-examination, the application was given when the
said witness was required to be confronted.
4.2 Reference was made to the decision of the Madras High
Court in the case of S. Rathina Swamy v. Smt. S.
Bhanumathi, AIR 2006 MADRAS 221 wherein in the court has
held that the main object of rule 14(3) of Order VII of the Code
conferring the power upon the court to receive the documents
in genuine cases is to receive the documents if good cause is
shown to the satisfaction of the court for the non-production of
the documents at the earlier stage. The courts are expected to
receive the documents and given an opportunity to the parties.
4.3 Reliance was also placed upon an unreported decision of
the Delhi High Court in the case of Surinder Kumar Bajaj v.
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Sheela Rani, MANU/DE/3264/2009, wherein the court has held
that rule 14(3) of Order VII, rule 1A(4) of Order VIII and rule
1(3) of Order XIII all provide that the rule for filing a document
along with pleadings and/or before the settlement of issues
does not apply to documents with which a witness may be
confronted in his cross examination and that the question
which arises is as to with what documents a witness can be
confronted; whether with those mentioned in sections 144 and
145 of the Evidence Act only or with others also. The court was
of the opinion that no limitation can be placed on the
documents with which the witness can be confronted.
4.4 Reliance was also placed upon the decision of the Delhi
High Court in the case of Subhash Chander v. Shri
Bhagwan Yadav, MANU/DE/3343/2009 wherein the court has
held that the legislative intent behind rule 14(4) of Order VII
and rule 1A(4) of Order VIII and rule 1 (3) of Order XIII appears
to be to permit an element of surprise, which is very important
in the cross-examination of witnesses. A litigant may well be of
the opinion that if the document on the basis whereof he seeks
to demolish the case of the adversary is filed on the court
record along with the pleadings of before framing of issues,
with resultant knowledge to the adversary, the adversary may
come prepared with his replied thereto. On the contrary, if
permitted to show/produce the document owing to element of
surprise, the adversary or witness, may blurt out the truth. Mr.
Dave submitted that, therefore, with a view to retain an
element of surprise it was not necessary for the petitioner to
produce the documents on record at the relevant time and that
it is permissible for the petitioner to place the documents on
record for the purpose of confronting the witness during the
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course of cross-examination which is also in consonance with
the provisions of sub-rule (4) of rule 14 of Order 7 of the Code.
Therefore, the petitioner cannot be thrown out by invoking subrule
(1) of rule 14 on the premise that the documents should
have been filed along with the plaint. It was submitted that
under sub-rule (3), documents can be produced on record with
the leave of the court and under sub-rule (4), the documents
which are not placed along with the plaint, can be produced at
the time of cross-examination of the witness. Therefore, the
trial court was not justified in rejecting the application for
production of the documents on record.
4.5 In so far as the application for amendment of the plaint is
concerned, the learned counsel for the petitioner invited the
attention of the court to the provisions of rule 17 of Order VI of
the Code to point out that the same permits the court at any
stage of the proceedings to allow either party to alter or
amend his pleadings in such manner and on such terms as
may be just and all such amendments are required to be made
as may be necessary for the purpose of determining the real
question in controversy between the parties. It was submitted
that in the present case, the facts which are sought to be
brought on record by way of amendment are all subsequent to
the institution of the suit and hence, could not have been
stated at the time when the suit came to be instituted.
4.6 Reference was made to the decision of the Supreme
Court in the case of North Eastern Railway Administration,
Gorakhpur v. Bhagwan Das, 2008 (8) SCC 511, wherein it
was held that Order 6 Rule 17 C.P.C. postulates amendment of
pleadings at any stage of the proceedings. The court observed
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that in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil &
Ors., AIR 1957 SC 363, which still holds the field, it was held
that all amendments ought to be allowed which satisfy the two
conditions: (a) of not working injustice to the other side, and
(b) of being necessary for the purpose of determining the real
questions in controversy between the parties. Amendments
should be refused only where the other party cannot be placed
in the same position as if the pleading had been originally
correct, but the amendment would cause him an injury which
could not be compensated in costs. Mr. Dave submitted that
having regard to the nature of the amendment sought to be
made by the petitioner, it cannot be said that the same would
cause such injury to the respondent, which cannot be
compensated in costs or that the respondent cannot be placed
in the same position as if the pleading had been originally
correct.
4.7 Mr. Dave further submitted that the suit having been
instituted prior to the insertion of the proviso to rule 17 of
Order VI of the Code, the requirement to show due diligence in
moving the amendment application is not necessary in the
facts of the present case. In support of such submission the
learned counsel placed reliance upon the decision of the
Supreme Court in State Bank of Hyderabad v. Town
Municipal Council, (2007) 1 SCC 765, wherein the court has
held that the proviso to rule 17 of Order VI of the Code was
added by the Code of Civil Procedure (Amendment) Act, 2002
which came into force with effect from 1.7.2002. The court
observed that there cannot be any doubt whatsoever that the
suit having been filed in the year 1998, the proviso to Order VI
rule 17 of the Code shall not apply. The court held that the
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High Court evidently committed an illegality in relying upon the
said proviso and opined that having regard thereto the plaintiff
was obligated to establish that in spite of due diligence it could
not have raised the matter before commencement of the trial
of the suit. It was submitted that, therefore, the question of
delay in filing the amendment would not arise and that since
the amendment does not cause any prejudice to the
respondent, the trial court was not justified in rejecting the
same.
5. Vehemently opposing the petitions, Mr. J.R. Shah, learned
counsel for the respondents submitted that the conduct of the
petitioner is required to be taken into consideration in the facts
of the present case. The attention of the court was invited to
the record of the case to point out that the
respondents/defendants had produced a list of documents at
Exhibit-39 on 9.9.2002 which also contained TM Application
No.633564 dated 11.7.1994 of the defendant No.8. It was
submitted that it is the case of the petitioner that they came to
know about the facts as stated in the affidavit of examinationin-chief
only after the same was filed and that subsequent
thereto, the present applications came to be made after
obtaining the documents from the Registrar of Trade Marks.
The attention of the court was invited to the contents of the
joint written statement filed by the defendants No.1, 5 and 7
and, more particularly, paragraph 11B thereto, to point out
that identical facts as stated in the examination-in-chief were
stated in the written statement which was filed in the year
2007. The attention of the court was also invited to the crossexamination
of the plaintiff to point out that the plaintiff had
acknowledged that the application for registration of
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trademark of Ramdev Exports was made on 11.7.1994 which
was a partnership firm comprised of partners Rakesh
Arvindbhai Patel, Hasmukh Rambhai Patel and Pravinbhai
Rambhai Patel. It was pointed out that the witness had also
stated that the plaintiff-company had filed objections and that
such objections have not been produced in the present case
and that he is ready and willing to produce the same. It was
submitted that, therefore, even in the year 2009 when the said
witness was cross-examined, he was well aware of the fact of
filing the said objections before the Registrar of Trade Marks.
The attention of the court was invited to the communication
dated 1.2.2002 at Exhibit-105 to point out that Hasmukhbhai
Patel, the Chairman and Managing Director of the petitioner
had addressed the said communication to the Registrar of
Trade Marks clarifying that the application No.633564 was filed
by them as joint owners and no right of the application and
mark is assigned to any other person who are trading under
the name of M/s. Ramdev Exports. It was submitted that,
therefore, all those documents were disclosed much earlier
and that the petitioner was not prevented from carrying out
search of the documents available in the office of the Registrar
of Trade Marks at the relevant time. It was pointed out that the
affidavit of examination-in-chief at Exhibit-953 was filed in the
year 2012 and the statements made in the affidavit of
examination-in-chief were also part of the written statement
filed in the year 2007. The defendant No.3 made the
application for registration of trademark with Ramdev in Globe
on 11.7.1994 which application was filed by all partners
including Hasmukhbhai. It was pointed out that, therefore, all
along the petitioner was well aware of the existence of such
documents and could have carried out search at the relevant
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time, however, the petitioner failed to do so and hence, the
application for production of documents has rightly not been
allowed at such a belated stage.
5.1 The learned counsel further submitted that the
documents of which production is sought for by the plaintiff do
not find mention in any of the pleadings or in the statements
up to the stage of trial. Under the circumstances, the said
documents cannot be permitted to be placed on record. In
support of such submission, the learned counsel placed
reliance upon the decision of this court in the case of
Syndicate Bank v. Ishan Communications Pvt. Ltd., 2009
JX(Guj) 662, wherein the court observed that it was not the
case of the petitioner, in the plaint that the said document was
relevant but could not be produced as it had been misplaced
by him. Had that been the case, it could have been so
mentioned, as the said document was dated 29.05.2003 and
its existence would be in the knowledge of the petitioner. No
such statement emerged from the plaintiff or his witnesses,
even at the stage of oral evidence. In fact, the said document
did not find mention, either in the pleadings or in the
statements, up to that stage. The trial court had taken note of
the amended provisions of rule 1 of Order XIII, and had come
to the conclusion that, at that stage, when the issues had been
settled and evidence of the plaintiff was over, and the
defendants had entered into the evidence, the document
sought to be produced by the petitioner, could not be
permitted to be placed on record. The court observed that the
said conclusion was in conformity with the provisions of rule 1
of Order XIII of the Code. Mr. Shah submitted that in the facts
of the present case also, the documents of which production is
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sought by the petitioner, do not find place in any of the
pleadings or in any statements of the witnesses and, therefore
also, the trial court was justified in not permitting production
thereof.
5.2 Insofar as the amendment of the plaint is concerned, the
learned counsel made reference to the contents of the
application at Exhibit-979 to point out that in terms of the
amendment application, it is the case of the petitioner that the
defendant No.1 had filed an affidavit of examination-in-chief at
Exhibit-953 wherein the facts as referred to therein had been
stated. It was pointed out that the examination-in-chief came
to be filed in the year 2012 and the part of the examination-inchief,
which is reproduced in the amendment application, also
forms part of the written statement which was submitted in the
year 2007, to submit that it is not as if the petitioner was not
aware of the said facts and could move the amendment only at
such a belated stage.
5.3 Referring to paragraph 2(ii) of the amendment
application, it was submitted that the documents to which
reference is made therein do not form part of the documents
which are obtained now and that the petitioners were all along
aware of such documents. The attention of the court was
invited to the letter of the Registrar of Trade Marks to point out
that the issue had been raised way back in the year 2002
whereas the amendment is now sought to be moved without
any corresponding amendment in the relief paragraph. It was
submitted that the facts as stated in the said paragraph have
nothing to do with the civil court and if at all the petitioner is
aggrieved it has to approach the Trade Marks office. It was
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submitted that the application was made in the year 1994 and
at the relevant time there were no disputes between the
parties and that the dispute arose in the year 1998. It was
submitted that redressal, if any, in respect of the grievance
stated in the amendment application lies before the Registrar
of Trade Marks and not before the civil court.
5.4 Referring to the contents of paragraph (iv) of the
amendment application wherein it has been stated that the
defendants No.1 and 5 were never the original applicants and
their names could not be added and that the entire procedure
adopted is fraudulent and against the provisions of Trade
Marks Act and Indian Partnership Act, it was submitted that on
1.1.2003 the petitioner had filed objections to the names of
defendants No.1, 3 and 5 and that in respect of such
grievance, it is for the petitioner to approach the Registrar of
Trade Marks and the said controversy has got nothing to do
with the controversy involved in the civil suit and that in any
case the Registrar of Trade Marks has kept the application in
abeyance till the suit is decided.
5.5 Referring to the contents of paragraph 3 of the
amendment application, it was submitted that no controversy
has been raised before the trial court regarding the facts which
are sought to be brought on record by the amendment and
that there is no issue in the suit which requires adjudication for
which the amendment is required to be allowed, under the
circumstances, the amendment having no nexus with the
controversy involved in the civil suit, the trial court was wholly
justified in not allowing the application for amendment.
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5.6 The attention of the court was invited to the Deed of
Retirement from Partnership dated 1.6.1998 to point out that
Hasmukhbhai Patel and Pravinbhai Patel had retired from the
partnership of M/s. Ramdev Exports with effect from the 1st
Day of April, 1998 which was duly accepted by all the partners.
6. In rejoinder, Mr. D. C. Dave, learned counsel for the
petitioner submitted that the learned counsel for the
respondents had made submissions on the merits of the
amendment which would amount to prejudging the issue at
this stage. It was submitted that for the purpose of deciding
whether an amendment should be allowed, the outcome is not
required to be seen. According to the learned counsel, while
considering an application for production of documents, three
parameters are required to be satisfied under rule 14 of Order
VII of the Code, namely, that when the plaint is filed, the
documents have not seen the light of the day. It was submitted
that sub-rule (3) of rule 14 of Order VII comes to the rescue of
the petitioner, namely, that the plaint was not based on those
documents, however, the documents were not in existence at
that time. It was further submitted that in view of sub-rule (4)
of rule 14 of Order VII of the Code, the petitioner was not
required to disclose the documents at an earlier stage to
ensure that the element of surprise which he is entitled to in
the cross-examination is not lost. It was submitted that the
documents of which production is sought are relevant because
they are part of the record of the Registrar of Trade Marks in
respect of the application of 1994 on which the defendant No.1
is placing reliance in support of his defence. It was submitted
that the record of the case clearly demonstrates the intention
of the defendant to commit infringement of the trademark and
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if the applications for production of documents and
amendment are not allowed, the suppression will never come
to light. It was submitted that while considering the above
submissions, what is required to be examined is as to what is
the prejudice caused to the other side and whether the
documents are relevant or not. It was submitted that insofar as
prejudice to the other side is concerned, in all fairness, the
defendants should have placed on record all the documents to
which they were privy so that there is a complete picture
before the court. Reference was made to the document Form
TM-1 (page 236) dated 11.7.1994 to point out the conduct of
the defendant by drawing attention of the court to the fact that
without any order for substitution having been passed, the
names of Hasmukhbhai and Pravinbhai came to be deleted and
the names of respondents No.1 and 5 came to be substituted
in their place. It was submitted that the list submitted by the
defendants does not contain the amendment made in the year
1994 and hence, the witness is required to be contradicted in
respect thereof. Reference was made to the communication
dated 11.2.2002 addressed by the Trade Marks registry to the
petitioner to point out that there is nothing to show that
Hasmukhbhai has been deleted as co-applicant. It was
submitted that all these matters would come to light if the
documents are permitted to be brought on record and the
amendment application is allowed. It was submitted that if
both the applications are allowed, no prejudice would be
caused except that it would bring out the suppression made by
the respondent-defendant. It was, accordingly, urged that the
amendment application as well as the production of
documents being necessary for the purpose of bringing correct
facts on the record and there being no bar against allowing
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such applications at this stage, the petitions are required to be
allowed by allowing the applications filed by the petitioner.
7. Before adverting to the merits of the rival contentions, it
may be germane to refer to the contents of the applications
filed by the petitioner before the trial court. A perusal of the
application Exhibit-977 shows that the grounds stated therein
are that the facts relating to the documents are relevant to the
facts of the case and will throw considerable light on the
disputes raise in the case. That the record will enable the court
to appreciate the respective contentions of the parties and that
the record is also necessary for cross-examination of the
defendants’ witness to contradict or corroborate the
statements made by the defendant No.1. Insofar as the
application at Exhibit-979 is concerned, which has been made
under Order VI rule 17 of the Code for amendment of the
plaint, it is the case of the plaintiff that the defendants No.1
and 5 were never the original applicants and their name could
not be added and the entire procedure adopted is fraudulent
and against the provisions of the Trade Marks Act and the
Indian Partnership Act. The plaintiff is the registered proprietor
of Trademark No.447700 and consequently of the trade name
‘Ramdev’ and any effort to infringe the said trademark and
trade name and any efforts to get registered any trademark
similarly to or copying its essential feature by the defendants
are required to be restrained as prayed for in the suit.
8. Insofar as the amendment of the plaint under rule 17 of
Order VI of the Code is concerned, it is permissible for the
court at any stage of the proceedings to allow either party to
alter or amend his pleadings in such manner and on such
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terms as may be just. Insofar as amendments which are
necessary for the purpose of determining the real questions in
controversy between the parties, the provision mandates that
all such amendments shall be made. Thus, rule 17 is in two
parts. The first part is discretionary and says that the court
may at any stage of the proceedings allow either party to
amend or alter his pleading, whereas the second part is
mandatory, and says that if the amendment is necessary for
determining the real questions in controversy between the
parties the same shall be made. The mandate of the second
part of rule 17 of Order VI of the Code is circumscribed by the
proviso thereto which provides that no application for
amendment shall be allowed after the trial has commenced
unless the court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter before
the commencement of trial. However, in the facts of the
present case, since the suit relates to the period prior to the
insertion of the proviso to rule 17 of Order VI of the Code, in
the light of law laid down by the Supreme Court in the case of
State Bank of Hyderabad v. Town Municipal Council
(supra), the proviso would not be applicable and hence, it is
not necessary for the petitioner to establish that in spite of due
diligence, it could not have raised the matter before the
commencement of the trial.
9. Insofar as the application for amendment of plaint is
concerned, as can be seen from the impugned order, the trial
court has found as a matter of fact that the petitioner had
knowledge of the facts sought to be brought on record by the
amendment way back in the year 2007, and in any case, such
facts were within its knowledge when the affidavit of
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examination-in-chief came to be submitted on 27.12.2012 and
yet the amendment has been filed on 10.12.2014 after a delay
of nearly two years. More significantly, the trial court has
further found that the amendment has no nexus with the real
controversy involved in the suit and that the amendment is not
necessary to decide the real controversy involved in the suit.
The trial court was further of the opinion that if the defendant
has pleaded facts contrary to the facts stated before the trade
marks authority, the redressal lies before the said authority.
Moreover, even if the amendment is allowed, no useful
purpose would be served as no corresponding prayer in
respect of the facts sought to be brought on record by way of
the amendment has been made. Thus, the trial court has
rejected the application for amendment on two grounds: firstly,
that the same has no nexus with the real controversy involved
in the suit and is not necessary to determine the real
controversy involved in the suit; and secondly, on the ground
that the same is belated. Insofar as the second ground is
concerned, namely, that the prayer for amendment is a
belated one, as discussed hereinabove, in cases filed prior to
the insertion of the proviso to rule 17 of Order VI of the Code,
even if the amendment is belated, the same can be allowed. It
is by now well settled that under rule 17 of Order VI of the
Code, wide powers and unfettered discretion has been
conferred on the court to allow amendment of the pleadings to
a party in such a manner and on such terms as it appears to
the court just and proper. Even if such an application for
amendment of the plaint is filed belatedly, such belated
amendment cannot be refused if it is found that for deciding
the real controversy between the parties. To balance equities,
such amendment can be allowed on payment of costs.
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Therefore, mere delay and laches in making the application for
amendment cannot be a ground to refuse the amendment in
case where the suit is instituted prior to the insertion of the
proviso to rule 17 of Order VI of the Code. However, the
question that then needs to be decided is as to whether by
allowing the amendment, the real controversy between the
parties can be resolved.
10. At this juncture, reference may be made to the contents
of the application at Exhibit-979. The first paragraph thereof
makes reference to the contents of the examination-in-chief
filed by the defendant No.1. It is further stated in the
application that the defendants No.1 and 5 were never the
original applicants and their names could not be added and the
entire procedure adopted is fraudulent and against the
provisions of the Trade Marks Act and the Indian Partnership
Act. The plaintiff is the registered proprietor of Trademark
No.447700 and consequently, the Trade name ‘Ramdev’ and
any effort to infringe the said trademark and trade name and
any efforts to get registered any trademark similar to or
copying its essential feature by the defendants are required to
be restrained as prayed for in the suit. In this regard, from the
contents of paragraph 3(iii) of the application, it is apparent
that the plaintiff had filed its opposition on 1.1.2003 and the
defendants No.1, 3 and 5 had filed their counter statement on
7.11.2003, therefore, the plaintiff was aware of the application
made by the defendants for substitution of their names. It is
the case of the plaintiff that it could not have imagined that
the defendants had managed to substitute the names of the
original applicants which the plaintiff came to know when they
got the certified copies of the record. It is further stated that
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the trademark is not yet registered. The learned counsel for
the defendants has stated that the proceedings in respect of
application No.633564 have been kept in abeyance till the
adjudication of the suit. Therefore, on an overall view of the
matter, it is clear that none of these facts have any relevance
to the controversy involved in the suit, inasmuch as the
proceedings relate to the application made for registration of
the logo Ramdev in a Globe, which proceedings have been
kept in abeyance until the suit is decided. Therefore the facts
relating to the said application have no nexus to the
controversy involved in the suit which relate to the plaintiff’s
trademark. There is no controversy before the trial court
regarding the facts which are sought to be brought on record
by way of amendment and no issue appears to have been
framed in the suit in respect of which the amendment is
required to be allowed. A perusal of the impugned order
reveals that the trial court has recorded a categorical finding
that the amendment has no nexus with the controversy
involved in the suit. Insofar as the proceedings before the
Registrar of Trade Marks in respect of the application
No.633564 are concerned, if there is any irregularity in the
same or the same is likely to infringe the plaintiff’s trademark
in any manner, the plaintiffs can oppose the same in those
proceedings. However, as held by the trial court, the same has
no nexus insofar as the present case is concerned. In any case,
as pointed out by the learned counsel for the respondent,
those proceedings have been kept in abeyance in view of the
pendency of the suit. Therefore, if the petitioner succeeds, the
consequences would follow. Under the circumstances, when
the trial court for the reasons recorded in the impugned order
has exercised its discretion and not granted the amendment
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application, in the absence of any material irregularity in the
exercise of such discretion, even if it may be possible to take a
different view on the same set of facts, this court would not
interfere in exercise of powers under Article 227 of the
Constitution. In the opinion of this court, in the light of the
findings recorded by the trial court that the amendment has no
nexus to the controversy involved in the suit, it is not possible
to say that the impugned order suffers from any material
irregularity so as to warrant interference by this court.
11. Before adverting to the merits of the impugned order
insofar as the same relates to the application made for
production of documents at Exhibit-977 is concerned, it may be
germane to refer to the relevant statutory provisions.
12. Production of documents in a trial before the civil court is
governed by rule 14 of Order VII, rule 1A of Order VIII and rule
1 of Order XIII of the Code.
13. Rule 14 of Order VII of the Code makes provision for
production of documents on which plaintiff sues or relies and
reads thus:-
“14. Production of document on which plaintiff
sues or relies.
(1) 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.
(2) Where any such document is not in the possession or
power of the plaintiff, he shall, wherever possible, state
in whose possession or power it is.
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(3) 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.
(4) Nothing in this rule shall apply to document produced
for the cross examination of the plaintiff's witnesses, or,
handed over to a witness merely to refresh his memory.
14. Rule 1A of Order VIII of the Code makes provision for duty
of the defendant to produce documents upon which relief is
claimed or relied upon and reads thus:
“1A. Duty of defendant to produce documents
upon which relief is claimed or relied upon by him.
(1) Where the defendant bases his defence upon a
document or relies upon any document in his possession
or power, in support of his defence or claim for set-off or
counter-claim, he shall enter such document in a list, and
shall produce it in court when the written statement is
presented by him and shall, at the same time, deliver the
document and a copy thereof, to be filed with the written
statement.
(2) Where any such document is not in the possession or
power of the defendant, he shall, wherever possible,
state in whose possession or power it is.
(3) 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.
(4) Nothing in this rule shall apply to documents.-
(a) produced for the cross-examination of the plaintiff's
witnesses, or
(b) handed over to a witness merely to refresh his
memory.”
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15. Rule 1 of Order XIII of the Code which bears the heading
“Original documents to be produced on or before settlement of
issues”reads thus:-
“1. Original documents to be produced at or before
the settlement of issues
(1) The parties or their pleader shall produce on or before
the settlement of issues, all the documentary evidence in
original where the copies thereof have been filed along
with plaint or written statement.
(2) The court shall receive the documents so produced :
Provided that they are accompanied by an accurate list
thereof prepared in such form as the High Court directs.
(3) Nothing in sub-rule (1) shall apply to documents-
(a) produced for the cross-examination of the witnesses
of the other party; or
(b) handed over to a witness merely to refresh his
memory.”
16. On a plain reading of rule 14 of Order VII of the Code, it is
apparent that under sub-rule (1) thereof where a plaintiff sues
upon a document or relies upon a document in his possession
or power in support of his claim, he is required to enter such
documents in a list, and produce it in the court when the plaint
is presented by him. Where such document is not in the
possession or power of the plaintiff, in view of the provisions of
sub-rule (2) of rule 14 of Order VII, the plaintiff is required to
state, wherever possible, in whose possession or power it is. In
respect of other documents, which ought to have been
produced in court by the plaintiff when the plaint was
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presented, or entered in the list to be added or annexed to the
plaint but is not produced or entered, by virtue of sub-rule (3)
of rule 14, the plaintiff requires the leave of the court for the
purpose of such document to be received in evidence on his
behalf at the hearing of the suit. Sub-rule (4) of rule 14
provides that nothing in the rule shall apply to document
produced for the cross examination of the plaintiff's witnesses,
or, handed over to a witness merely to refresh his memory.
17. The settled legal position is that in relation to documents
which cannot be filed without the leave of the court, leave
should not ordinarily be refused where the documents are
official records of undoubted authenticity, which may assist the
court to decide rightly the issues before it. However, this does
not imply when there is no discretion left with the trial court
when it is a matter of admitting public documents at a late
stage. The court is vested with such discretion, which has to be
exercised, depending upon the facts and circumstances of
each case.
18. In Billa Jagan Mohan Reddy v. Billa Sanjeeva Reddy
(supra), on which reliance has been placed by the learned
counsel for the petitioner, the Supreme Court was considering
a case where there was a delay in filing the application for
production of documents and the trial court had not allowed
the application on the ground that the application was filed at
the stage of arguments. The Supreme Court held thus:
“It is settled law that, if the documents are found to be
relevant to decide the real issue in the controversy, and
when the court felt that interest of justice requires that the
documents may be received, exercising the power under
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Order 41, Rule 27 CPC the appellate court would receive
the documents and consider their effect thereof. When
such is the position, when the documents are sought to be
produced in the trial court, before the arguments are
completed, normally they may be received; an opportunity
given to prove them and rebuttal if any and their
relevance and effect they may have, be considered in
deciding the issues arising in the controversy. Under these
circumstances, the trial court was not justified in refusing
to condone the delay and to receive the documents. The
High Court also committed the same error in not
considering the effect in this behalf in the right
perspective. The orders are accordingly set aside and the
delay in filing the documents is condoned. The trial court is
directed to receive the documents, give an opportunity to
the parties to prove the documents and if necessary,
opportunity to the respondent to rebut the same and then
dispose of the reference according to law.”
19. A perusal of the application at Exhibit-977 shows that the
grounds stated for producing the documents on record are that
the facts relating to the documents are relevant to the facts of
the case and will throw considerable light on the disputes
raised in the case. That the record will enable the court to
appreciate the respective contentions of the parties and that
the record is also necessary for cross examination of the
defendant’s witness to contradict or corroborate the
statements made by the defendant No.1. It may, however, be
pertinent to note that in the entire application, there is not
even a whisper as to why such documents are sought to be
produced on record after such a considerable delay. Before this
court, it has been contended that the documents were not
produced earlier so as to ensure that the element of surprise
which the plaintiff is entitled to in the cross-examination, is not
lost. Reliance has been placed upon sub-rule (4) of rule 14 of
Order VII of the Code which provides that nothing in that rule
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shall apply to the documents produced for the cross
examination of the plaintiff’s witness, or, handed over to a
witness merely to refresh his memory. Though the expression
used in the rule is, “plaintiff’s witness”, the Supreme Court in
Salem Advocates Bar Association, Tamil Nadu v. Union
of India, AIR 2005 SC 3355, has held that the same has to
read as “defendant’s witness”. Therefore, in view of sub-rule
(4) of rule 14 of Order VII of the Code, nothing in that rule shall
apply to documents produced for the cross-examination of the
defendant’s witness. Consequently, the provisions of sub-rule
(3) of rule 14 would not apply if the document is produced for
cross-examination of the defendant’s witness and it would not
be necessary to obtain the leave of the court for production of
such document. But in that case, such document has to be
used only for the purpose of such cross-examination and need
not be produced in advance nor is the leave of the court
required to be obtained for using such document for the
purpose of cross examination of the witness. If the element of
surprise has to be maintained, such document has to be
produced at the time of cross examination and not before,
otherwise the very purpose of introducing the surprise element
is lost.
20. The learned counsel for the petitioner has placed reliance
on various decisions of the Supreme Court as well as High
Courts. On a perusal of the said decisions, it is apparent that
the same provide that if the documents are found relevant to
decide the real issue in controversy, the same may be received
at any stage of the proceedings even at the appellate stage.
However, what is significant is that such documents must be
necessary to decide the issue in controversy. Since the plaintiff
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has sought the leave of the court to produce the documents in
question, it can be safely presumed that the application has
been made under sub-rule (3) of rule 14 of Order VII of the
Code. In the opinion of this court, had it been the intention of
the plaintiff to put such documents to the defendant in his
cross-examination, as is sought to be contended by the learned
counsel for the petitioner, there was no requirement for filing
such application and the documents would simpliciter have
been put to the defendant during the course of his crossexamination
by resorting to the provisions of sub-rule (4) of
rule 14 of Order VII. Since the application is relatable to subrule
(3) of rule 14 of Order VII of the Code, the principal
question that arises for consideration is whether such
documents are relevant for the purpose of deciding the issue in
controversy in the suit. On a perusal of the nature of the
documents which are sought to be brought on record, all of
which relate to the Application No.633564 for registration of
trademark made by the defendant No.8 company, it is evident
that such documents have no direct bearing on the
controversy involved in the suit. The prayers made in the suit
are for restraining the defendants from infringing the plaintiff’s
registered trademark application No.447700 and other marks
bearing No.531084, 531085, 545253, 545233, 545257 and
545258 and to restrain the defendant from using in relation to
any spices, masalas bearing the name ‘Ramdev’ in any
manner. The plaintiff has also sought damages and other
ancillary reliefs. Therefore, the documents which are sought to
be brought on record relate to the proceedings of Application
No.633564 made by the defendant No.8 Company. The trial
court, after perusing the material on record, has arrived at the
conclusion that the documents which are sought to be
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produced on record are not relevant for the purpose of
deciding the controversy in issue. On a perusal of the record of
the case, it is not possible to state that the conclusion arrived
at by the trial court is in any manner perverse or contrary to
the record of the case.
21. In the light of the finding recorded by the trial court that
the documents which are sought to be produced have no
nexus to the issue in controversy, it cannot be said that there
is any legal error in the impugned order passed by the trial
court in refusing production of the documents. However, as
noticed hereinabove, it has been contended on behalf of the
petitioner that such documents were sought to be produced
under sub-rule (4) of rule 14 of Order VII of the Code which
says that nothing in the rule shall apply to document produced
for the cross examination of the plaintiff’s witness. A similar
provision is found in sub-rule (4) of rule 1A of Order VIII as well
as in sub-rule (3) of rule 1 of Order XIII of the Code. Therefore,
resort cannot be had either to sub-rule (1) or sub-rule (3) of
rule 14 of Order VII of the Code for production of documents for
the purpose of cross examination of the defendant’s witness.
However, as noted hereinabove, insofar as the production of
documents for cross-examination of witness is concerned, the
leave of the trial court is not required to be obtained nor is any
application required to be made as contemplated under subrule
(3) of rule 14 of Order VII of the Code.
22. In this regard, the petitioner has placed reliance upon the
decision of the Delhi High Court in Surinder Kumar Bajaj v.
Sheela Rani (supra), wherein the court has held that Order 7
Rule 14(3), Order 8 Rule 1A (4) and Order 13 Rule 1(3) all
provide that the rule for filing a document along with pleadings
and/or before the settlement of issues does not apply to
documents with which a witness may be confronted in his
cross examination. The court was further of the opinion that no
limitation can be placed on the documents which can be
confronted to the witness.
23. Reliance has also been placed upon the decision of the
Delhi High Court in the case of Subhash Chander v. Shri
Bhagwan Yadav, (supra) wherein the court has held that
Order 7 Rule 14(4) and Order 8 Rule 1A (4) and Order 13 Rule 1
(3) provide that the provisions requiring parties to file
documents along with their pleadings and/or before the
settlement of issues do not apply to documents produced for
the cross examination of the witnesses of the other party. To
the same effect, section 145 of the Evidence Act also permits
documents to be put to the witnesses, though it does not
provide whether such documents should be already on the
court record or can be produced/shown for the first time.
However, in view of the unambiguous provisions of the CPC, it
cannot be held that the document cannot be produced/shown
for the first time during cross examination. The court further
held that the legislative intent behind Order 7 Rule 14(4) and
Order 8 Rule 1A(4) and Order 13 Rule 1 (3) appears to be to
permit an element of surprise, which is very important in the
cross-examination of witnesses. A litigant may well be of the
opinion that if the document on the basis whereof he seeks to
demolish the case of the adversary is filed on the court record
along with the pleadings or before framing of issues, with
resultant knowledge to the adversary, the adversary may
come prepared with his replies thereto. On the contrary, if
permitted to show/produce the document owing to element of
surprise, the adversary or witness, may blurt out the truth. It
has, accordingly, been contended on behalf of the petitioner
that with a view to maintain the element of surprise, the
documents were not produced at the relevant time.
24. In this regard, reference may be made to the decision of
the Madras High Court in the case of T.M. Mohana v.
Kannan, AIR 1984 MADRAS 14, wherein the court has
observed that it is seen from the provisions of Order 8 Rule 1
(2) and (6), Order 8 Rule 8-A (1) and (3) and Order 13 Rule 2
(2) C.P.C. that at every stage at which the defendant is called
upon to produce the documents, an exception is always made
with reference to documents produced for the crossexamination
of the plaintiff’s witnesses or the crossexamination
of the witnesses of the other party or in answer to
a case set up by the plaintiff subsequent to the filing of the suit
or with a view to refresh memory. In other words, the obligation
to produce the documents relied upon by the defendant at the
stages contemplated under Order 8, Rule 1 (2), Order 8 Rule
8A (1) and by both parties under Order 13 Rule 1 C.P.C. has
been done away with in all those cases with reference to
documents produced for cross-examination. That would mean
that a defendant in the suit confronting the plaintiff's
witnesses, as in this case, need not disclose the document in
the list or produce the document at an anterior point of time or
even seek and obtain the leave of court for tendering such a
document in the course of the cross-examination of the
witness of the other side. The benefit of the production of a
document for purposes of cross-examination can be availed of
either by the plaintiff or by the defendant with reference to the
witnesses of the other party. The court, after referring to
various decisions of different High Courts observed that from
the said decisions also, it is clear that where the document
relied upon is intended to be put to a witness in the course of
his cross-examination, it is not necessary that such a
document should be disclosed earlier or that leave of court
should be obtained for so producing the documents to the
witnesses in the course of cross-examination.
25. In the opinion of this court, if the petitioner seeks to bring
the documents on record to maintain the element of surprise,
the documents have to be put to the witness to confront him at
the time of cross-examination and are not required to be
produced by making an application for production of the same.
Therefore, the application made by the petitioner cannot be
treated as one under sub-rule (4) of rule 14 of Order VII of the
Code. However, since it has been contended on behalf of the
petitioner that the documents are sought to be produced on
record under sub-rule (4) of rule 14 of Order VII of the Code,
while upholding the order passed by the trial court, with a view
to balance equities, it is clarified that it would be permissible
for the petitioner to produce such documents for the purpose
of confronting the witness at the time of cross examination of
such witness for which purpose it would not be necessary to
obtain leave of the court.
26. In the light of the above discussion, this court does not
find any infirmity in the impugned order passed by the trial
court in rejecting the application filed by the petitioner for
amendment of the plaint as well as for production of
documents. The petitions, therefore, fail and are, accordingly,
dismissed. Rule is discharged with no order as to costs.
However, as observed hereinabove, it would be open for the
petitioner to tender such documents for the purpose of
confronting the defendants’ witnesses at the time of their cross
examination if it so deems fit.
(HARSHA DEVANI, J.)
the documents on record to maintain the element of surprise,
the documents have to be put to the witness to confront him at
the time of cross-examination and are not required to be
produced by making an application for production of the same.
Therefore, the application made by the petitioner cannot be
treated as one under sub-rule (4) of rule 14 of Order VII of the
Code. However, since it has been contended on behalf of the
petitioner that the documents are sought to be produced on
record under sub-rule (4) of rule 14 of Order VII of the Code,
while upholding the order passed by the trial court, with a view
to balance equities, it is clarified that it would be permissible
for the petitioner to produce such documents for the purpose
of confronting the witness at the time of cross examination of
such witness for which purpose it would not be necessary to
obtain leave of the court.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4826 of 2015
RAMDEV FOOD PRODUCTS PVT LTD
V
ARVINDBHAI RAMBHAI PATEL & 7.
CORAM: MS.JUSTICE HARSHA DEVANI
Date : 04/05/2015
Citation; AIR 2015(NOC)1188 GUJ
1. Rule. Mr J.R. Shah, learned advocate waives service of
notice of rule on behalf of the respondents. Since common
questions of law are involved in both these petitions and the
facts and the parties are also common, the same were taken
up for hearing together and are disposed of by this common
judgment.
2. The facts giving rise to the present petitions are that the
petitioner (original plaintiff) instituted a suit being Civil Suit
No.828 of 2000 on 10.2.2000 for infringement of the
trademark, infringement of copyright and passing off action
against the respondents (original defendants). The petitioner
also prayed for a decree of a sum of Rs.5,00,00,000/- (rupees
five crores) as and by way of damages. The said civil suit is at
the stage of trial. The plaintiff’s evidence has already been
adduced and the matter stands at the stage of crossexamination
of the defendants’ witness Shri Arvindbhai
Rambhai Patel. On 27.12.2012, Shri Arvindbhai Rambhai Patel
submitted affidavit of examination-in-chief at Exhibit-953
wherein at paragraph 15 thereof, it had been stated as under:-
“On 11.07.1994, Defendant No.8 M/s. Ramdev Exports
made application in the Trade Marks Office for
registration of the logo ‘Ramdev’ in globe bearing
Application No.633654. Such application was made after
the purported assignment of trademark logo “Ramdev
Masala” (TMR No.447700) in favour of the Plaintiff
Company. Said application was signed by Hasmukhbhai,
Pravinbhai and Rakeshbhai the Defendant No.3 on behalf
of the Defendant No.8 M/s. Ramdev Exports and they
were also a Managing Director, Whole time Director
and/or Director of Plaintiff Company. Subsequently,
Hasmukhbhai clearly admitted that they applied for
registration as joint owners in a letter submitted in Trade
Mark Office on 01.02.2002. He was a Chairman and
Managing Director of the Plaintiff Company at that time.”
3. It is the case of the petitioner that in the joint written
statement filed on behalf of the defendants No.1, 5 and 7 on
15.1.2007, incomplete facts pertaining to Trademark
Application No.633564 were mentioned; that the respondents
(original defendants) surreptitiously did not mention any fact
regarding the applications and affidavits submitted before the
Trade Marks Registry subsequent to the filing of the suit for
infringement; the said affidavits and applications were never
served upon the petitioner in connection with the proceedings
of Trademark Application No.633564 and hence, such facts
regarding subsequent applications and affidavits filed before
the Trade Mark registry were not within the knowledge of the
petitioner; that the respondents/defendants produced a copy
of the original trademark application at Exhibit-171, but did not
produce on record the applications and affidavits filed
thereafter by them. It is further averred in the petition that the
cross-examination of the respondent No.1 had commenced on
14.10.2014 whereafter the said witness was further crossexamined
on 17.11.2014, 28.11.2014 and 5.12.2014.
According to the petitioner, in the cross-examination, it came
to its notice that even though the Trade Mark Application
No.633564 was made jointly by Shri Hasmukhbhai Patel,
Pravinbhai Patel and Rakeshbhai Patel in their capacity as coowners
carrying on business in the name and style of Ramdev
Exports, the respondent No.1 in paragraph 15 of his affidavit of
examination-in-chief had stated that the said application was
made by the partnership firm, namely, M/s. Ramdev Exports
(respondent No.8 herein). That the petitioner upon
examination of the records found that the notice of publication
of Trade Mark Application No.633564 in the Trade Marks Journal
No.1281 (Supplementary) dated 21.10.2002 indicated the
names of Patel Arvindbhai Rambhai (respondent No.1), Patel
Rakeshbhai Arvindbhai (respondent No.3) and Patel Chiragbhai
Arvindbhai (respondent No.5.) Therefore, the petitioner
through its representative carried out search of the record of
the Trade Mark Registry relating to Trade Mark Application
No.633564 and Opposition No.AMD-81397 filed by the
petitioner and obtained a certified copy from the Trade Mark
Registry on 4.12.2014. That from the documents received from
the Trade Marks Registry, the petitioner came to know that
after institution of the suit for infringement against the
respondents, an application TM-16 was filed by the
respondents for deleting the names of two of the original
applicants viz. Shri Hasmukhbhai Rambhai Patel and Shri
Pravinbhai Rambhai Patel and for substitution of the names of
the respondent No.1 Shri Arvindbhai Rambhai Patel and
respondent No.3 Chirag Arvindbhai Patel in their place. Vide
order dated 9.1.2002, the application filed by the respondents
before the Trade Mark Registry was allowed and the names of
Shri Hasmukhbhai Rambhai Patel and Shri Pravinbhai Rambhai
Patel were deleted and substituted by the names of Shri
Arvindbhai Rambhai Patel and Chirag Arvindbhai Patel
retrospectively, from the date of the original application,
without any notice to the original applicants. It is further the
case of the petitioner that it came to its knowledge during the
pendency of proceedings of Civil Suit No.828 of 2000 that the
respondents vide another application TM-16 dated 4.2.2002
had got the date of user inserted whereby the respondents
claimed to have used the trademark applied for on its goods
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since 1992. According to the petitioner the documents
obtained from the Trade Mark Registry are relevant to the
disputes involved in the suit and are also necessary for the
purpose of cross-examination of the defendants’ witness so as
to contradict the statements made by the witness in the
affidavit of examination-in-chief and in the course of crossexamination.
The petitioner, therefore, filed an application
Exhibit-977 on 5.12.2014 for production of the certified
photocopies of the documents on the record of the Trade Marks
Registry relating to Trade Mark Application No.633564 and
Opposition No.AMD 81397. The respondent No.1 filed his reply
to the said application for production of documents and the
petitioner filed its rejoinder thereto. The petitioner also filed an
application under Order VI rule 17 of the Code of Civil
Procedure, 1908 (hereinafter referred to as “the Code”) at
Exhibit-979 for amendment of the plaint. The respondent No.1
filed his reply to the said application and in response thereto,
the petitioner herein filed its affidavit-in-rejoinder. Both the
applications for production of documents and as well as for
amendment of the plaint came to be heard together and by a
common order dated 5.2.2015 passed below Exhibits-977 and
979 in Civil Suit No.828 of 2000, both the applications came to
be rejected, which has given rise to the present petitions.
4. Mr. Dhaval Dave, Senior Advocate, learned counsel with
Mr. Anal Shah, learned advocate for the petitioner in both the
petitions, invited the attention of the court to the facts of the
case. It was pointed out that the petitioner company has been
using the registered trademark Ramdev since the year 1990. In
the year 1991, a registered user agreement was executed with
the defendant No.7 to use the trademark Ramdev for a period
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of seven years till 31.3.1998. It was submitted that there was a
clear understanding that the defendants have the right to use
the registered trademark for the limited purpose of selling
products of the petitioner company at the retail counters.
However, the respondents No.1 to 6 started selling their own
products at cheaper rates under the trademark ‘Ramdev’ and
hence, the petitioner was constrained to institute the above
referred suit. The attention of the court was invited to the
examination-in-chief of the respondent No.1 to point out that
the respondent No.8 M/s. Ramdev Exports was constituted on
19.11.1992 as a partnership firm for the purpose of
undertaking export business. It was pointed out that
Hasmukhbhai, Pravinbhai and the respondent No.3 were the
first partners of the respondent No.8. When the respondent
No.8 was formed, all these three partners were there in the set
up of the company as Chairman, Managing Director and
Director. On 11.7.1994, an application for registration of trade
mark ‘Ramdev’ in a Globe was made, which, according to the
respondent No.1 was for and on behalf of the respondent No.8
firm and that such application was given by three persons
Hasmukhbhai, Pravinbhai and the respondent no.3. Therefore,
in substance, the respondent No.1 is relying upon the
application made in July, 1994. Referring to the crossexamination
of the respondent No.1, it was pointed out that it
was necessary to produce the documents in question to
confront the said witness. Reference was made to the
provisions of rule 14 of Order VII of the Code, which bears the
heading “Production of document on which plaintiff sues or
relies”and more particularly, sub-rules (3) and (4) thereof.
4.1 Reliance was placed upon the decision of the Supreme
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Court in the case of Billa Jagan Mohan Reddy v. Billa
Sanjeeva Reddy, 1994 (4) SCC 659, for the proposition that it
is settled law that if documents are found to be relevant to
decide the real issue in controversy, and when the court feels
that interest of justice requires that the documents may be
received, exercising the power under Order 41 rule 27 CPC, the
appellate court would receive the documents and consider
their effect thereof. When such is the position, when
documents are sought to be produced in the trial court, before
the arguments are completed, normally, they may be received;
an opportunity given to prove them and rebuttal if any, and
their relevance and effect they may have, be considered in
deciding the issues arising in controversy. It was pointed out
that the examination-in-chief was submitted on 27.12.2012
and the cross-examination took place on 14.10.2014,
17.11.2014, 28.11.2014 and 5.12.2014 and that on the last
date of cross-examination, the application was given when the
said witness was required to be confronted.
4.2 Reference was made to the decision of the Madras High
Court in the case of S. Rathina Swamy v. Smt. S.
Bhanumathi, AIR 2006 MADRAS 221 wherein in the court has
held that the main object of rule 14(3) of Order VII of the Code
conferring the power upon the court to receive the documents
in genuine cases is to receive the documents if good cause is
shown to the satisfaction of the court for the non-production of
the documents at the earlier stage. The courts are expected to
receive the documents and given an opportunity to the parties.
4.3 Reliance was also placed upon an unreported decision of
the Delhi High Court in the case of Surinder Kumar Bajaj v.
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Sheela Rani, MANU/DE/3264/2009, wherein the court has held
that rule 14(3) of Order VII, rule 1A(4) of Order VIII and rule
1(3) of Order XIII all provide that the rule for filing a document
along with pleadings and/or before the settlement of issues
does not apply to documents with which a witness may be
confronted in his cross examination and that the question
which arises is as to with what documents a witness can be
confronted; whether with those mentioned in sections 144 and
145 of the Evidence Act only or with others also. The court was
of the opinion that no limitation can be placed on the
documents with which the witness can be confronted.
4.4 Reliance was also placed upon the decision of the Delhi
High Court in the case of Subhash Chander v. Shri
Bhagwan Yadav, MANU/DE/3343/2009 wherein the court has
held that the legislative intent behind rule 14(4) of Order VII
and rule 1A(4) of Order VIII and rule 1 (3) of Order XIII appears
to be to permit an element of surprise, which is very important
in the cross-examination of witnesses. A litigant may well be of
the opinion that if the document on the basis whereof he seeks
to demolish the case of the adversary is filed on the court
record along with the pleadings of before framing of issues,
with resultant knowledge to the adversary, the adversary may
come prepared with his replied thereto. On the contrary, if
permitted to show/produce the document owing to element of
surprise, the adversary or witness, may blurt out the truth. Mr.
Dave submitted that, therefore, with a view to retain an
element of surprise it was not necessary for the petitioner to
produce the documents on record at the relevant time and that
it is permissible for the petitioner to place the documents on
record for the purpose of confronting the witness during the
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course of cross-examination which is also in consonance with
the provisions of sub-rule (4) of rule 14 of Order 7 of the Code.
Therefore, the petitioner cannot be thrown out by invoking subrule
(1) of rule 14 on the premise that the documents should
have been filed along with the plaint. It was submitted that
under sub-rule (3), documents can be produced on record with
the leave of the court and under sub-rule (4), the documents
which are not placed along with the plaint, can be produced at
the time of cross-examination of the witness. Therefore, the
trial court was not justified in rejecting the application for
production of the documents on record.
4.5 In so far as the application for amendment of the plaint is
concerned, the learned counsel for the petitioner invited the
attention of the court to the provisions of rule 17 of Order VI of
the Code to point out that the same permits the court at any
stage of the proceedings to allow either party to alter or
amend his pleadings in such manner and on such terms as
may be just and all such amendments are required to be made
as may be necessary for the purpose of determining the real
question in controversy between the parties. It was submitted
that in the present case, the facts which are sought to be
brought on record by way of amendment are all subsequent to
the institution of the suit and hence, could not have been
stated at the time when the suit came to be instituted.
4.6 Reference was made to the decision of the Supreme
Court in the case of North Eastern Railway Administration,
Gorakhpur v. Bhagwan Das, 2008 (8) SCC 511, wherein it
was held that Order 6 Rule 17 C.P.C. postulates amendment of
pleadings at any stage of the proceedings. The court observed
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that in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil &
Ors., AIR 1957 SC 363, which still holds the field, it was held
that all amendments ought to be allowed which satisfy the two
conditions: (a) of not working injustice to the other side, and
(b) of being necessary for the purpose of determining the real
questions in controversy between the parties. Amendments
should be refused only where the other party cannot be placed
in the same position as if the pleading had been originally
correct, but the amendment would cause him an injury which
could not be compensated in costs. Mr. Dave submitted that
having regard to the nature of the amendment sought to be
made by the petitioner, it cannot be said that the same would
cause such injury to the respondent, which cannot be
compensated in costs or that the respondent cannot be placed
in the same position as if the pleading had been originally
correct.
4.7 Mr. Dave further submitted that the suit having been
instituted prior to the insertion of the proviso to rule 17 of
Order VI of the Code, the requirement to show due diligence in
moving the amendment application is not necessary in the
facts of the present case. In support of such submission the
learned counsel placed reliance upon the decision of the
Supreme Court in State Bank of Hyderabad v. Town
Municipal Council, (2007) 1 SCC 765, wherein the court has
held that the proviso to rule 17 of Order VI of the Code was
added by the Code of Civil Procedure (Amendment) Act, 2002
which came into force with effect from 1.7.2002. The court
observed that there cannot be any doubt whatsoever that the
suit having been filed in the year 1998, the proviso to Order VI
rule 17 of the Code shall not apply. The court held that the
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High Court evidently committed an illegality in relying upon the
said proviso and opined that having regard thereto the plaintiff
was obligated to establish that in spite of due diligence it could
not have raised the matter before commencement of the trial
of the suit. It was submitted that, therefore, the question of
delay in filing the amendment would not arise and that since
the amendment does not cause any prejudice to the
respondent, the trial court was not justified in rejecting the
same.
5. Vehemently opposing the petitions, Mr. J.R. Shah, learned
counsel for the respondents submitted that the conduct of the
petitioner is required to be taken into consideration in the facts
of the present case. The attention of the court was invited to
the record of the case to point out that the
respondents/defendants had produced a list of documents at
Exhibit-39 on 9.9.2002 which also contained TM Application
No.633564 dated 11.7.1994 of the defendant No.8. It was
submitted that it is the case of the petitioner that they came to
know about the facts as stated in the affidavit of examinationin-chief
only after the same was filed and that subsequent
thereto, the present applications came to be made after
obtaining the documents from the Registrar of Trade Marks.
The attention of the court was invited to the contents of the
joint written statement filed by the defendants No.1, 5 and 7
and, more particularly, paragraph 11B thereto, to point out
that identical facts as stated in the examination-in-chief were
stated in the written statement which was filed in the year
2007. The attention of the court was also invited to the crossexamination
of the plaintiff to point out that the plaintiff had
acknowledged that the application for registration of
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trademark of Ramdev Exports was made on 11.7.1994 which
was a partnership firm comprised of partners Rakesh
Arvindbhai Patel, Hasmukh Rambhai Patel and Pravinbhai
Rambhai Patel. It was pointed out that the witness had also
stated that the plaintiff-company had filed objections and that
such objections have not been produced in the present case
and that he is ready and willing to produce the same. It was
submitted that, therefore, even in the year 2009 when the said
witness was cross-examined, he was well aware of the fact of
filing the said objections before the Registrar of Trade Marks.
The attention of the court was invited to the communication
dated 1.2.2002 at Exhibit-105 to point out that Hasmukhbhai
Patel, the Chairman and Managing Director of the petitioner
had addressed the said communication to the Registrar of
Trade Marks clarifying that the application No.633564 was filed
by them as joint owners and no right of the application and
mark is assigned to any other person who are trading under
the name of M/s. Ramdev Exports. It was submitted that,
therefore, all those documents were disclosed much earlier
and that the petitioner was not prevented from carrying out
search of the documents available in the office of the Registrar
of Trade Marks at the relevant time. It was pointed out that the
affidavit of examination-in-chief at Exhibit-953 was filed in the
year 2012 and the statements made in the affidavit of
examination-in-chief were also part of the written statement
filed in the year 2007. The defendant No.3 made the
application for registration of trademark with Ramdev in Globe
on 11.7.1994 which application was filed by all partners
including Hasmukhbhai. It was pointed out that, therefore, all
along the petitioner was well aware of the existence of such
documents and could have carried out search at the relevant
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time, however, the petitioner failed to do so and hence, the
application for production of documents has rightly not been
allowed at such a belated stage.
5.1 The learned counsel further submitted that the
documents of which production is sought for by the plaintiff do
not find mention in any of the pleadings or in the statements
up to the stage of trial. Under the circumstances, the said
documents cannot be permitted to be placed on record. In
support of such submission, the learned counsel placed
reliance upon the decision of this court in the case of
Syndicate Bank v. Ishan Communications Pvt. Ltd., 2009
JX(Guj) 662, wherein the court observed that it was not the
case of the petitioner, in the plaint that the said document was
relevant but could not be produced as it had been misplaced
by him. Had that been the case, it could have been so
mentioned, as the said document was dated 29.05.2003 and
its existence would be in the knowledge of the petitioner. No
such statement emerged from the plaintiff or his witnesses,
even at the stage of oral evidence. In fact, the said document
did not find mention, either in the pleadings or in the
statements, up to that stage. The trial court had taken note of
the amended provisions of rule 1 of Order XIII, and had come
to the conclusion that, at that stage, when the issues had been
settled and evidence of the plaintiff was over, and the
defendants had entered into the evidence, the document
sought to be produced by the petitioner, could not be
permitted to be placed on record. The court observed that the
said conclusion was in conformity with the provisions of rule 1
of Order XIII of the Code. Mr. Shah submitted that in the facts
of the present case also, the documents of which production is
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sought by the petitioner, do not find place in any of the
pleadings or in any statements of the witnesses and, therefore
also, the trial court was justified in not permitting production
thereof.
5.2 Insofar as the amendment of the plaint is concerned, the
learned counsel made reference to the contents of the
application at Exhibit-979 to point out that in terms of the
amendment application, it is the case of the petitioner that the
defendant No.1 had filed an affidavit of examination-in-chief at
Exhibit-953 wherein the facts as referred to therein had been
stated. It was pointed out that the examination-in-chief came
to be filed in the year 2012 and the part of the examination-inchief,
which is reproduced in the amendment application, also
forms part of the written statement which was submitted in the
year 2007, to submit that it is not as if the petitioner was not
aware of the said facts and could move the amendment only at
such a belated stage.
5.3 Referring to paragraph 2(ii) of the amendment
application, it was submitted that the documents to which
reference is made therein do not form part of the documents
which are obtained now and that the petitioners were all along
aware of such documents. The attention of the court was
invited to the letter of the Registrar of Trade Marks to point out
that the issue had been raised way back in the year 2002
whereas the amendment is now sought to be moved without
any corresponding amendment in the relief paragraph. It was
submitted that the facts as stated in the said paragraph have
nothing to do with the civil court and if at all the petitioner is
aggrieved it has to approach the Trade Marks office. It was
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submitted that the application was made in the year 1994 and
at the relevant time there were no disputes between the
parties and that the dispute arose in the year 1998. It was
submitted that redressal, if any, in respect of the grievance
stated in the amendment application lies before the Registrar
of Trade Marks and not before the civil court.
5.4 Referring to the contents of paragraph (iv) of the
amendment application wherein it has been stated that the
defendants No.1 and 5 were never the original applicants and
their names could not be added and that the entire procedure
adopted is fraudulent and against the provisions of Trade
Marks Act and Indian Partnership Act, it was submitted that on
1.1.2003 the petitioner had filed objections to the names of
defendants No.1, 3 and 5 and that in respect of such
grievance, it is for the petitioner to approach the Registrar of
Trade Marks and the said controversy has got nothing to do
with the controversy involved in the civil suit and that in any
case the Registrar of Trade Marks has kept the application in
abeyance till the suit is decided.
5.5 Referring to the contents of paragraph 3 of the
amendment application, it was submitted that no controversy
has been raised before the trial court regarding the facts which
are sought to be brought on record by the amendment and
that there is no issue in the suit which requires adjudication for
which the amendment is required to be allowed, under the
circumstances, the amendment having no nexus with the
controversy involved in the civil suit, the trial court was wholly
justified in not allowing the application for amendment.
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5.6 The attention of the court was invited to the Deed of
Retirement from Partnership dated 1.6.1998 to point out that
Hasmukhbhai Patel and Pravinbhai Patel had retired from the
partnership of M/s. Ramdev Exports with effect from the 1st
Day of April, 1998 which was duly accepted by all the partners.
6. In rejoinder, Mr. D. C. Dave, learned counsel for the
petitioner submitted that the learned counsel for the
respondents had made submissions on the merits of the
amendment which would amount to prejudging the issue at
this stage. It was submitted that for the purpose of deciding
whether an amendment should be allowed, the outcome is not
required to be seen. According to the learned counsel, while
considering an application for production of documents, three
parameters are required to be satisfied under rule 14 of Order
VII of the Code, namely, that when the plaint is filed, the
documents have not seen the light of the day. It was submitted
that sub-rule (3) of rule 14 of Order VII comes to the rescue of
the petitioner, namely, that the plaint was not based on those
documents, however, the documents were not in existence at
that time. It was further submitted that in view of sub-rule (4)
of rule 14 of Order VII of the Code, the petitioner was not
required to disclose the documents at an earlier stage to
ensure that the element of surprise which he is entitled to in
the cross-examination is not lost. It was submitted that the
documents of which production is sought are relevant because
they are part of the record of the Registrar of Trade Marks in
respect of the application of 1994 on which the defendant No.1
is placing reliance in support of his defence. It was submitted
that the record of the case clearly demonstrates the intention
of the defendant to commit infringement of the trademark and
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if the applications for production of documents and
amendment are not allowed, the suppression will never come
to light. It was submitted that while considering the above
submissions, what is required to be examined is as to what is
the prejudice caused to the other side and whether the
documents are relevant or not. It was submitted that insofar as
prejudice to the other side is concerned, in all fairness, the
defendants should have placed on record all the documents to
which they were privy so that there is a complete picture
before the court. Reference was made to the document Form
TM-1 (page 236) dated 11.7.1994 to point out the conduct of
the defendant by drawing attention of the court to the fact that
without any order for substitution having been passed, the
names of Hasmukhbhai and Pravinbhai came to be deleted and
the names of respondents No.1 and 5 came to be substituted
in their place. It was submitted that the list submitted by the
defendants does not contain the amendment made in the year
1994 and hence, the witness is required to be contradicted in
respect thereof. Reference was made to the communication
dated 11.2.2002 addressed by the Trade Marks registry to the
petitioner to point out that there is nothing to show that
Hasmukhbhai has been deleted as co-applicant. It was
submitted that all these matters would come to light if the
documents are permitted to be brought on record and the
amendment application is allowed. It was submitted that if
both the applications are allowed, no prejudice would be
caused except that it would bring out the suppression made by
the respondent-defendant. It was, accordingly, urged that the
amendment application as well as the production of
documents being necessary for the purpose of bringing correct
facts on the record and there being no bar against allowing
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such applications at this stage, the petitions are required to be
allowed by allowing the applications filed by the petitioner.
7. Before adverting to the merits of the rival contentions, it
may be germane to refer to the contents of the applications
filed by the petitioner before the trial court. A perusal of the
application Exhibit-977 shows that the grounds stated therein
are that the facts relating to the documents are relevant to the
facts of the case and will throw considerable light on the
disputes raise in the case. That the record will enable the court
to appreciate the respective contentions of the parties and that
the record is also necessary for cross-examination of the
defendants’ witness to contradict or corroborate the
statements made by the defendant No.1. Insofar as the
application at Exhibit-979 is concerned, which has been made
under Order VI rule 17 of the Code for amendment of the
plaint, it is the case of the plaintiff that the defendants No.1
and 5 were never the original applicants and their name could
not be added and the entire procedure adopted is fraudulent
and against the provisions of the Trade Marks Act and the
Indian Partnership Act. The plaintiff is the registered proprietor
of Trademark No.447700 and consequently of the trade name
‘Ramdev’ and any effort to infringe the said trademark and
trade name and any efforts to get registered any trademark
similarly to or copying its essential feature by the defendants
are required to be restrained as prayed for in the suit.
8. Insofar as the amendment of the plaint under rule 17 of
Order VI of the Code is concerned, it is permissible for the
court at any stage of the proceedings to allow either party to
alter or amend his pleadings in such manner and on such
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terms as may be just. Insofar as amendments which are
necessary for the purpose of determining the real questions in
controversy between the parties, the provision mandates that
all such amendments shall be made. Thus, rule 17 is in two
parts. The first part is discretionary and says that the court
may at any stage of the proceedings allow either party to
amend or alter his pleading, whereas the second part is
mandatory, and says that if the amendment is necessary for
determining the real questions in controversy between the
parties the same shall be made. The mandate of the second
part of rule 17 of Order VI of the Code is circumscribed by the
proviso thereto which provides that no application for
amendment shall be allowed after the trial has commenced
unless the court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter before
the commencement of trial. However, in the facts of the
present case, since the suit relates to the period prior to the
insertion of the proviso to rule 17 of Order VI of the Code, in
the light of law laid down by the Supreme Court in the case of
State Bank of Hyderabad v. Town Municipal Council
(supra), the proviso would not be applicable and hence, it is
not necessary for the petitioner to establish that in spite of due
diligence, it could not have raised the matter before the
commencement of the trial.
9. Insofar as the application for amendment of plaint is
concerned, as can be seen from the impugned order, the trial
court has found as a matter of fact that the petitioner had
knowledge of the facts sought to be brought on record by the
amendment way back in the year 2007, and in any case, such
facts were within its knowledge when the affidavit of
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examination-in-chief came to be submitted on 27.12.2012 and
yet the amendment has been filed on 10.12.2014 after a delay
of nearly two years. More significantly, the trial court has
further found that the amendment has no nexus with the real
controversy involved in the suit and that the amendment is not
necessary to decide the real controversy involved in the suit.
The trial court was further of the opinion that if the defendant
has pleaded facts contrary to the facts stated before the trade
marks authority, the redressal lies before the said authority.
Moreover, even if the amendment is allowed, no useful
purpose would be served as no corresponding prayer in
respect of the facts sought to be brought on record by way of
the amendment has been made. Thus, the trial court has
rejected the application for amendment on two grounds: firstly,
that the same has no nexus with the real controversy involved
in the suit and is not necessary to determine the real
controversy involved in the suit; and secondly, on the ground
that the same is belated. Insofar as the second ground is
concerned, namely, that the prayer for amendment is a
belated one, as discussed hereinabove, in cases filed prior to
the insertion of the proviso to rule 17 of Order VI of the Code,
even if the amendment is belated, the same can be allowed. It
is by now well settled that under rule 17 of Order VI of the
Code, wide powers and unfettered discretion has been
conferred on the court to allow amendment of the pleadings to
a party in such a manner and on such terms as it appears to
the court just and proper. Even if such an application for
amendment of the plaint is filed belatedly, such belated
amendment cannot be refused if it is found that for deciding
the real controversy between the parties. To balance equities,
such amendment can be allowed on payment of costs.
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Therefore, mere delay and laches in making the application for
amendment cannot be a ground to refuse the amendment in
case where the suit is instituted prior to the insertion of the
proviso to rule 17 of Order VI of the Code. However, the
question that then needs to be decided is as to whether by
allowing the amendment, the real controversy between the
parties can be resolved.
10. At this juncture, reference may be made to the contents
of the application at Exhibit-979. The first paragraph thereof
makes reference to the contents of the examination-in-chief
filed by the defendant No.1. It is further stated in the
application that the defendants No.1 and 5 were never the
original applicants and their names could not be added and the
entire procedure adopted is fraudulent and against the
provisions of the Trade Marks Act and the Indian Partnership
Act. The plaintiff is the registered proprietor of Trademark
No.447700 and consequently, the Trade name ‘Ramdev’ and
any effort to infringe the said trademark and trade name and
any efforts to get registered any trademark similar to or
copying its essential feature by the defendants are required to
be restrained as prayed for in the suit. In this regard, from the
contents of paragraph 3(iii) of the application, it is apparent
that the plaintiff had filed its opposition on 1.1.2003 and the
defendants No.1, 3 and 5 had filed their counter statement on
7.11.2003, therefore, the plaintiff was aware of the application
made by the defendants for substitution of their names. It is
the case of the plaintiff that it could not have imagined that
the defendants had managed to substitute the names of the
original applicants which the plaintiff came to know when they
got the certified copies of the record. It is further stated that
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the trademark is not yet registered. The learned counsel for
the defendants has stated that the proceedings in respect of
application No.633564 have been kept in abeyance till the
adjudication of the suit. Therefore, on an overall view of the
matter, it is clear that none of these facts have any relevance
to the controversy involved in the suit, inasmuch as the
proceedings relate to the application made for registration of
the logo Ramdev in a Globe, which proceedings have been
kept in abeyance until the suit is decided. Therefore the facts
relating to the said application have no nexus to the
controversy involved in the suit which relate to the plaintiff’s
trademark. There is no controversy before the trial court
regarding the facts which are sought to be brought on record
by way of amendment and no issue appears to have been
framed in the suit in respect of which the amendment is
required to be allowed. A perusal of the impugned order
reveals that the trial court has recorded a categorical finding
that the amendment has no nexus with the controversy
involved in the suit. Insofar as the proceedings before the
Registrar of Trade Marks in respect of the application
No.633564 are concerned, if there is any irregularity in the
same or the same is likely to infringe the plaintiff’s trademark
in any manner, the plaintiffs can oppose the same in those
proceedings. However, as held by the trial court, the same has
no nexus insofar as the present case is concerned. In any case,
as pointed out by the learned counsel for the respondent,
those proceedings have been kept in abeyance in view of the
pendency of the suit. Therefore, if the petitioner succeeds, the
consequences would follow. Under the circumstances, when
the trial court for the reasons recorded in the impugned order
has exercised its discretion and not granted the amendment
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application, in the absence of any material irregularity in the
exercise of such discretion, even if it may be possible to take a
different view on the same set of facts, this court would not
interfere in exercise of powers under Article 227 of the
Constitution. In the opinion of this court, in the light of the
findings recorded by the trial court that the amendment has no
nexus to the controversy involved in the suit, it is not possible
to say that the impugned order suffers from any material
irregularity so as to warrant interference by this court.
11. Before adverting to the merits of the impugned order
insofar as the same relates to the application made for
production of documents at Exhibit-977 is concerned, it may be
germane to refer to the relevant statutory provisions.
12. Production of documents in a trial before the civil court is
governed by rule 14 of Order VII, rule 1A of Order VIII and rule
1 of Order XIII of the Code.
13. Rule 14 of Order VII of the Code makes provision for
production of documents on which plaintiff sues or relies and
reads thus:-
“14. Production of document on which plaintiff
sues or relies.
(1) 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.
(2) Where any such document is not in the possession or
power of the plaintiff, he shall, wherever possible, state
in whose possession or power it is.
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(3) 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.
(4) Nothing in this rule shall apply to document produced
for the cross examination of the plaintiff's witnesses, or,
handed over to a witness merely to refresh his memory.
14. Rule 1A of Order VIII of the Code makes provision for duty
of the defendant to produce documents upon which relief is
claimed or relied upon and reads thus:
“1A. Duty of defendant to produce documents
upon which relief is claimed or relied upon by him.
(1) Where the defendant bases his defence upon a
document or relies upon any document in his possession
or power, in support of his defence or claim for set-off or
counter-claim, he shall enter such document in a list, and
shall produce it in court when the written statement is
presented by him and shall, at the same time, deliver the
document and a copy thereof, to be filed with the written
statement.
(2) Where any such document is not in the possession or
power of the defendant, he shall, wherever possible,
state in whose possession or power it is.
(3) 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.
(4) Nothing in this rule shall apply to documents.-
(a) produced for the cross-examination of the plaintiff's
witnesses, or
(b) handed over to a witness merely to refresh his
memory.”
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15. Rule 1 of Order XIII of the Code which bears the heading
“Original documents to be produced on or before settlement of
issues”reads thus:-
“1. Original documents to be produced at or before
the settlement of issues
(1) The parties or their pleader shall produce on or before
the settlement of issues, all the documentary evidence in
original where the copies thereof have been filed along
with plaint or written statement.
(2) The court shall receive the documents so produced :
Provided that they are accompanied by an accurate list
thereof prepared in such form as the High Court directs.
(3) Nothing in sub-rule (1) shall apply to documents-
(a) produced for the cross-examination of the witnesses
of the other party; or
(b) handed over to a witness merely to refresh his
memory.”
16. On a plain reading of rule 14 of Order VII of the Code, it is
apparent that under sub-rule (1) thereof where a plaintiff sues
upon a document or relies upon a document in his possession
or power in support of his claim, he is required to enter such
documents in a list, and produce it in the court when the plaint
is presented by him. Where such document is not in the
possession or power of the plaintiff, in view of the provisions of
sub-rule (2) of rule 14 of Order VII, the plaintiff is required to
state, wherever possible, in whose possession or power it is. In
respect of other documents, which ought to have been
produced in court by the plaintiff when the plaint was
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presented, or entered in the list to be added or annexed to the
plaint but is not produced or entered, by virtue of sub-rule (3)
of rule 14, the plaintiff requires the leave of the court for the
purpose of such document to be received in evidence on his
behalf at the hearing of the suit. Sub-rule (4) of rule 14
provides that nothing in the rule shall apply to document
produced for the cross examination of the plaintiff's witnesses,
or, handed over to a witness merely to refresh his memory.
17. The settled legal position is that in relation to documents
which cannot be filed without the leave of the court, leave
should not ordinarily be refused where the documents are
official records of undoubted authenticity, which may assist the
court to decide rightly the issues before it. However, this does
not imply when there is no discretion left with the trial court
when it is a matter of admitting public documents at a late
stage. The court is vested with such discretion, which has to be
exercised, depending upon the facts and circumstances of
each case.
18. In Billa Jagan Mohan Reddy v. Billa Sanjeeva Reddy
(supra), on which reliance has been placed by the learned
counsel for the petitioner, the Supreme Court was considering
a case where there was a delay in filing the application for
production of documents and the trial court had not allowed
the application on the ground that the application was filed at
the stage of arguments. The Supreme Court held thus:
“It is settled law that, if the documents are found to be
relevant to decide the real issue in the controversy, and
when the court felt that interest of justice requires that the
documents may be received, exercising the power under
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Order 41, Rule 27 CPC the appellate court would receive
the documents and consider their effect thereof. When
such is the position, when the documents are sought to be
produced in the trial court, before the arguments are
completed, normally they may be received; an opportunity
given to prove them and rebuttal if any and their
relevance and effect they may have, be considered in
deciding the issues arising in the controversy. Under these
circumstances, the trial court was not justified in refusing
to condone the delay and to receive the documents. The
High Court also committed the same error in not
considering the effect in this behalf in the right
perspective. The orders are accordingly set aside and the
delay in filing the documents is condoned. The trial court is
directed to receive the documents, give an opportunity to
the parties to prove the documents and if necessary,
opportunity to the respondent to rebut the same and then
dispose of the reference according to law.”
19. A perusal of the application at Exhibit-977 shows that the
grounds stated for producing the documents on record are that
the facts relating to the documents are relevant to the facts of
the case and will throw considerable light on the disputes
raised in the case. That the record will enable the court to
appreciate the respective contentions of the parties and that
the record is also necessary for cross examination of the
defendant’s witness to contradict or corroborate the
statements made by the defendant No.1. It may, however, be
pertinent to note that in the entire application, there is not
even a whisper as to why such documents are sought to be
produced on record after such a considerable delay. Before this
court, it has been contended that the documents were not
produced earlier so as to ensure that the element of surprise
which the plaintiff is entitled to in the cross-examination, is not
lost. Reliance has been placed upon sub-rule (4) of rule 14 of
Order VII of the Code which provides that nothing in that rule
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shall apply to the documents produced for the cross
examination of the plaintiff’s witness, or, handed over to a
witness merely to refresh his memory. Though the expression
used in the rule is, “plaintiff’s witness”, the Supreme Court in
Salem Advocates Bar Association, Tamil Nadu v. Union
of India, AIR 2005 SC 3355, has held that the same has to
read as “defendant’s witness”. Therefore, in view of sub-rule
(4) of rule 14 of Order VII of the Code, nothing in that rule shall
apply to documents produced for the cross-examination of the
defendant’s witness. Consequently, the provisions of sub-rule
(3) of rule 14 would not apply if the document is produced for
cross-examination of the defendant’s witness and it would not
be necessary to obtain the leave of the court for production of
such document. But in that case, such document has to be
used only for the purpose of such cross-examination and need
not be produced in advance nor is the leave of the court
required to be obtained for using such document for the
purpose of cross examination of the witness. If the element of
surprise has to be maintained, such document has to be
produced at the time of cross examination and not before,
otherwise the very purpose of introducing the surprise element
is lost.
20. The learned counsel for the petitioner has placed reliance
on various decisions of the Supreme Court as well as High
Courts. On a perusal of the said decisions, it is apparent that
the same provide that if the documents are found relevant to
decide the real issue in controversy, the same may be received
at any stage of the proceedings even at the appellate stage.
However, what is significant is that such documents must be
necessary to decide the issue in controversy. Since the plaintiff
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has sought the leave of the court to produce the documents in
question, it can be safely presumed that the application has
been made under sub-rule (3) of rule 14 of Order VII of the
Code. In the opinion of this court, had it been the intention of
the plaintiff to put such documents to the defendant in his
cross-examination, as is sought to be contended by the learned
counsel for the petitioner, there was no requirement for filing
such application and the documents would simpliciter have
been put to the defendant during the course of his crossexamination
by resorting to the provisions of sub-rule (4) of
rule 14 of Order VII. Since the application is relatable to subrule
(3) of rule 14 of Order VII of the Code, the principal
question that arises for consideration is whether such
documents are relevant for the purpose of deciding the issue in
controversy in the suit. On a perusal of the nature of the
documents which are sought to be brought on record, all of
which relate to the Application No.633564 for registration of
trademark made by the defendant No.8 company, it is evident
that such documents have no direct bearing on the
controversy involved in the suit. The prayers made in the suit
are for restraining the defendants from infringing the plaintiff’s
registered trademark application No.447700 and other marks
bearing No.531084, 531085, 545253, 545233, 545257 and
545258 and to restrain the defendant from using in relation to
any spices, masalas bearing the name ‘Ramdev’ in any
manner. The plaintiff has also sought damages and other
ancillary reliefs. Therefore, the documents which are sought to
be brought on record relate to the proceedings of Application
No.633564 made by the defendant No.8 Company. The trial
court, after perusing the material on record, has arrived at the
conclusion that the documents which are sought to be
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produced on record are not relevant for the purpose of
deciding the controversy in issue. On a perusal of the record of
the case, it is not possible to state that the conclusion arrived
at by the trial court is in any manner perverse or contrary to
the record of the case.
21. In the light of the finding recorded by the trial court that
the documents which are sought to be produced have no
nexus to the issue in controversy, it cannot be said that there
is any legal error in the impugned order passed by the trial
court in refusing production of the documents. However, as
noticed hereinabove, it has been contended on behalf of the
petitioner that such documents were sought to be produced
under sub-rule (4) of rule 14 of Order VII of the Code which
says that nothing in the rule shall apply to document produced
for the cross examination of the plaintiff’s witness. A similar
provision is found in sub-rule (4) of rule 1A of Order VIII as well
as in sub-rule (3) of rule 1 of Order XIII of the Code. Therefore,
resort cannot be had either to sub-rule (1) or sub-rule (3) of
rule 14 of Order VII of the Code for production of documents for
the purpose of cross examination of the defendant’s witness.
However, as noted hereinabove, insofar as the production of
documents for cross-examination of witness is concerned, the
leave of the trial court is not required to be obtained nor is any
application required to be made as contemplated under subrule
(3) of rule 14 of Order VII of the Code.
22. In this regard, the petitioner has placed reliance upon the
decision of the Delhi High Court in Surinder Kumar Bajaj v.
Sheela Rani (supra), wherein the court has held that Order 7
Rule 14(3), Order 8 Rule 1A (4) and Order 13 Rule 1(3) all
provide that the rule for filing a document along with pleadings
and/or before the settlement of issues does not apply to
documents with which a witness may be confronted in his
cross examination. The court was further of the opinion that no
limitation can be placed on the documents which can be
confronted to the witness.
23. Reliance has also been placed upon the decision of the
Delhi High Court in the case of Subhash Chander v. Shri
Bhagwan Yadav, (supra) wherein the court has held that
Order 7 Rule 14(4) and Order 8 Rule 1A (4) and Order 13 Rule 1
(3) provide that the provisions requiring parties to file
documents along with their pleadings and/or before the
settlement of issues do not apply to documents produced for
the cross examination of the witnesses of the other party. To
the same effect, section 145 of the Evidence Act also permits
documents to be put to the witnesses, though it does not
provide whether such documents should be already on the
court record or can be produced/shown for the first time.
However, in view of the unambiguous provisions of the CPC, it
cannot be held that the document cannot be produced/shown
for the first time during cross examination. The court further
held that the legislative intent behind Order 7 Rule 14(4) and
Order 8 Rule 1A(4) and Order 13 Rule 1 (3) appears to be to
permit an element of surprise, which is very important in the
cross-examination of witnesses. A litigant may well be of the
opinion that if the document on the basis whereof he seeks to
demolish the case of the adversary is filed on the court record
along with the pleadings or before framing of issues, with
resultant knowledge to the adversary, the adversary may
come prepared with his replies thereto. On the contrary, if
permitted to show/produce the document owing to element of
surprise, the adversary or witness, may blurt out the truth. It
has, accordingly, been contended on behalf of the petitioner
that with a view to maintain the element of surprise, the
documents were not produced at the relevant time.
24. In this regard, reference may be made to the decision of
the Madras High Court in the case of T.M. Mohana v.
Kannan, AIR 1984 MADRAS 14, wherein the court has
observed that it is seen from the provisions of Order 8 Rule 1
(2) and (6), Order 8 Rule 8-A (1) and (3) and Order 13 Rule 2
(2) C.P.C. that at every stage at which the defendant is called
upon to produce the documents, an exception is always made
with reference to documents produced for the crossexamination
of the plaintiff’s witnesses or the crossexamination
of the witnesses of the other party or in answer to
a case set up by the plaintiff subsequent to the filing of the suit
or with a view to refresh memory. In other words, the obligation
to produce the documents relied upon by the defendant at the
stages contemplated under Order 8, Rule 1 (2), Order 8 Rule
8A (1) and by both parties under Order 13 Rule 1 C.P.C. has
been done away with in all those cases with reference to
documents produced for cross-examination. That would mean
that a defendant in the suit confronting the plaintiff's
witnesses, as in this case, need not disclose the document in
the list or produce the document at an anterior point of time or
even seek and obtain the leave of court for tendering such a
document in the course of the cross-examination of the
witness of the other side. The benefit of the production of a
document for purposes of cross-examination can be availed of
either by the plaintiff or by the defendant with reference to the
witnesses of the other party. The court, after referring to
various decisions of different High Courts observed that from
the said decisions also, it is clear that where the document
relied upon is intended to be put to a witness in the course of
his cross-examination, it is not necessary that such a
document should be disclosed earlier or that leave of court
should be obtained for so producing the documents to the
witnesses in the course of cross-examination.
25. In the opinion of this court, if the petitioner seeks to bring
the documents on record to maintain the element of surprise,
the documents have to be put to the witness to confront him at
the time of cross-examination and are not required to be
produced by making an application for production of the same.
Therefore, the application made by the petitioner cannot be
treated as one under sub-rule (4) of rule 14 of Order VII of the
Code. However, since it has been contended on behalf of the
petitioner that the documents are sought to be produced on
record under sub-rule (4) of rule 14 of Order VII of the Code,
while upholding the order passed by the trial court, with a view
to balance equities, it is clarified that it would be permissible
for the petitioner to produce such documents for the purpose
of confronting the witness at the time of cross examination of
such witness for which purpose it would not be necessary to
obtain leave of the court.
26. In the light of the above discussion, this court does not
find any infirmity in the impugned order passed by the trial
court in rejecting the application filed by the petitioner for
amendment of the plaint as well as for production of
documents. The petitions, therefore, fail and are, accordingly,
dismissed. Rule is discharged with no order as to costs.
However, as observed hereinabove, it would be open for the
petitioner to tender such documents for the purpose of
confronting the defendants’ witnesses at the time of their cross
examination if it so deems fit.
(HARSHA DEVANI, J.)
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