Pankaj Bajpai

New Delhi, September 16, 2021: The Supreme Court has observed that non-filing of additional documents on ground of them being voluminous is no reasonable cause for non-disclosure/filing of documents along with plaint/suit.

The background of the case was that the appellant/original plaintiff filed first suit, seeking to restrain defendant from infringing and passing off appellant’s trademarks. Accordingly, an ex-parte interim injunction was passed in appellant’s favour.

Having realized and found that earlier suit was not in consonance with provisions of Commercial Courts Act, appellant withdrew the suit with liberty to file fresh suit as per Commercial Courts Act.

Thereafter, second suit was filed and within a period of thirty days from filing of second suit. Appellant then preferred present application seeking leave of court to file additional documents.

In his application, it was specifically mentioned that so far as invoices were concerned, the same were not in its possession at time of filing of plaint and so far as other documents were concerned they were not filed as they were voluminous.

The Commercial Court however, rejected the application and the same was upheld by the High Court. Hence, present appeal.

After considering the arguments, the Division Bench of Justice M.R. Shah & Justice Aniruddha Bose stated that reason given by Commercial Court that invoices were suspicious and hence, appellant could not be granted leave to produce them could not be accepted.

At stage of granting leave to place on record additional documents, court was not required to consider genuineness of documents/additional documents. Rather, stage at which genuineness of documents to be considered was during trial and/or even at stage of deciding application u/Order XXXIX Rule 1 of the CPC that too while considering prima facie case, added the Bench.

Besides, the Top Court found that the Appellant had specifically asserted that invoices were not in his possession at time of filing of plaint/suit. Moreover, Defendant’s contention that cause shown for non-production was an afterthought could not be accepted as application was filed within 30 days from date of filing of second suit and at time when application for interim injunction u/Order XXXIX Rule 1 was not fully heard and kept for orders.

Furthermore, while seeking leave of court to rely on documents, which were in his power, possession, control or custody and not disclosed along with plaint or within extended period set out in Order XI Rule 1(4), plaintiff must establish reasonable cause for non-disclosure along with plaint, noted the Top Court.

The Top Court also opined that there was sufficient time gap between filing of first suit and filing of second suit, i.e., approximately 10 months. Hence, when second suit was filed, appellant had sufficient time after filing of first suit to file additional documents other than invoices.

Accordingly, the case on behalf of appellant that when second suit was filed, it was urgently filed and hence, additional documents sought to be relied upon other than invoices were not filed as same were voluminous could not be accepted, said the Top Court.

Thus, observing that the Order XI Rule 1(4) shall not be applicable though application was filed within 30 days of filing of second suit, the Apex Court quashed the order passed by High Court to extent of not granting leave to the appellant to rely on/produce invoices mentioned in the application.

However, rest of the order not granting leave to Appellant to rely on/produce documents other than invoices as additional evidence, stood confirmed.

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