CPC Order VIII Rule 1| Belated Filing Of Documents By Defendant Not Permissible Without Leave Of Court: Delhi High Court

The observation was made by Justice Suresh K Kait, while hearing an application filed by the defendant in a trademark infringement suit, seeking to bring on record certain additional documents.

It may be noted that Order VIII Rule 1(1) provides that the defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence.

Sub-rule 2 prescribes that where the defendant relies on any document (whether or not in his possession or power) in support of his defence, he shall enter such documents in a list, and shall, annex the list to the written statement or present the list to the Court at the first hearing of the suit, as the case may be.

Sub-rule 3, which is of prime importance in this case, states that 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.

In the instant case, the plaintiff, claimed that the defendant has not been able to show any reasonable cause for non-disclosure of the documents which are sought to be placed on record, and hence opposed the application.

Reliance was placed on Dewanti Devi and Others Vs. Radheshyam Tiwary and Others, to submit that provisions of Order VIII Rule 1A(3) prove that the documents which have not been produced along with the written statement, cannot be produced to the Court later on without leave of the Court.

Reference was also made to Polyflor Limited Vs. Sh. A.N. Goenka & Ors., to argue that before leave of the court is granted for taking on record some documents at a belated stage, the party seeking to produce the documents must satisfy the court that the said documents were not within their knowledge.

Agreeing with the contention, the High Court held,

"the provisions of Order VIII Rule 1(3) CPC make it clear that 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."

Nevertheless, looking at the facts and circumstances of the case, and that parties are yet to establish their case with respect to use of trade mark in question, the Court allowed the application.

It observed that procedural and technical hurdles should not be allowed to come in the way of substantial justice by the Court.

Reliance was placed on Sugandhi (Dead) by Legal Representatives & Anr. V. P. Rajkumar (2020) 10 SCC 706, which held that, "We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub­rule (3)."

Keeping this in mind, the documents were taken on record.

The main suit is re-notified on 22.3.22.

Case Title: Jindal Stainless (Hisar) Ltd. v. Sourabh Jinal & Ors., CS (Comm) 247/2019

Citation: 2022 LiveLaw (Del) 49