Delhi High Court
Asia Pacific Breweries vs Superior Industries on 6 March, 2009
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: February 20, 2009
Date of Order: March 06, 2009
+ IA No.5990/2007 in CS(OS)946/2002
% 06.03.2009
Asia Pacific Breweries ...Plaintiff
Through: Mr. Sanjay Jain, Sr. Adv. with Mr. C.A. Brijesh & Ms. Nitika,
Advocates
Versus
Superior Industries ...Defendant
Through: Mr. Amarjit Singh, Ms. Navneet Momi and Ms. Supreet Kaur
Advocates
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
ORDER
IA No.5990/2007
1. This application under Order 7 Rule 14 and Section 151 of the CPC has
been made by the plaintiff seeking to file around 70 additional documents
along with affidavit of the witnesses.
2. The present suit is at the stage of plaintiff's evidence. It is submitted by
plaintiff that the plaintiff was in the process of filing affidavit of his witnesses
Mr. Raymond Anthony Poletti, Ms. Shini John and Mr. Ashok Chadha and in the
process of filing affidavits he proposes to file certain original/ certified
/notarized copies of documents along with the said affidavits which were not
filed along with the plaint. He had given details of these documents in a chart
CS (OS) 946/2002 Asia Pacific Breweries vs. Superior Industries Page 1 Of 5
and in the chart in Column No.3; the plaintiff has given remarks about the
documents. The remarks are in the nature of "to support oral evidence of
witnesses", "certified copies obtained after framing issues", "the documents
could be traced only recently", "the documents acquired by the plaintiff
recently", "the documents notarized after framing of issues", "certified copies
obtained after framing of issues" etc.
3. The list of documents shows that the documents are in the nature of
annual reports of the plaintiff's company, original advertising material
ranging from 1987 onwards, photographs of the promotional material and the
material used for promotion in respect of the brand of the plaintiff. Plaintiff
also included some copies of invoices showing sale of his brand in different
countries.
4. It is submitted by the plaintiff that the plaintiff does not seek to
establish and prove any new averment against the defendant and the said
documents are being filed only to prove the pre-disclosed case of the plaintiff
and the pre-disclosed documents shall not cause any prejudice to the
defendants.
5. The application is opposed by defendant submitting inter alia that all
the documents which the plaintiff seeks to file were in power and possession
of the plaintiff and plaintiff had full opportunity to file these documents along
with suit. No plausible ground has been given by the plaintiff as to why the
documents were not filed at the time of filing of the suit or before framing of
issues. The plaintiff did not make out a case under the provisions of Order 7
Rule 14 and therefore the application should be dismissed.
CS (OS) 946/2002 Asia Pacific Breweries vs. Superior Industries Page 2 Of 5
6. Order 7 Rule 14 CPC reads as under:
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
possession or power of the plaintiff, he shall,
wherever possible, state in whose possession or
power it is.
(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.
7. This Rule specifically provides that all the documents on which plaintiff
relies or which are necessary to prove the case of the plaintiff must be filed
along with the plaint if they are in power and possession of the plaintiff and
the plaintiff has to file a list of those documents which are not in his power
and possession but on which plaintiff otherwise relies. He has also to specify
CS (OS) 946/2002 Asia Pacific Breweries vs. Superior Industries Page 3 Of 5
as to in whose power and possession the documents were as per his
knowledge if they were not in his power and possession. The provisions of
Order 7 Rule 14(3) bar production of any such documents after filing of the
suit without leave of the Court.
8. The sole purpose of asking the plaintiff to file all documents in his
power and possession and to file list of those documents which are not in his
power and possession is that the defendant while filing written statement
should not only respond to the pleadings in the plaint but should suitably
respond to those documents which are relied upon by the plaintiff and should
file its own documents, if any, in order to defend the claim of the plaintiff. The
documents are to be filed by the plaintiff and the defendant at the
preliminary stage i.e at the time of pleadings and thereafter parties have to
admit or deny the documents and then issues are framed. The issues are not
only framed out of the pleadings but also out of the documents relied upon by
the parties. The sole purpose of this provision stands defeated if the majority
of documents are withheld by either of the parties and the documents are
sought to be sneaked into at the time of evidence. If new documents are
allowed to be filed by one party, again a de novo trial has to be started since
in response to the documents filed by one party, the other party is to be
given a chance to file documents in rebuttal and this leads to a fresh trial. The
amendments in Civil Procedure Code in 1976, 1999 and 2002 were carried
out by the legislature with the sole purpose that the trial should finish early
and the trial should not be prolonged. Parties were put on notice by the
legislature that they should file all documents in their power and possession
at the time of filing of the suit. Only those documents can be allowed by the
Court to be filed later on which were either not in the knowledge of the
CS (OS) 946/2002 Asia Pacific Breweries vs. Superior Industries Page 4 Of 5
plaintiff or the plaintiff despite due diligence could not have procured them
but mentioned them in the list of reliance giving information as to in whose
power and possession the documents were to seek help of the Court to
procure the documents. Where the plaintiff has not filed a list of documents
relied on and the documents are those such that same were within the
knowledge and power and possession of the plaintiff, the Court cannot allow
those documents to be filed at the stage of evidence. All the documents
which are mentioned by the plaintiff in the list are those which were within
the power and possession of the plaintiff. Plaintiff before coming to the Court
and filing the suit was under an obligation to get certified copies or notarized
copies or photographs and photocopies of those materials which the plaintiff
now wants to place on record in support of his case. The plaintiff cannot be
allowed to keep on filing fresh material and documents with the progress of
the case or along with affidavits of the witnesses. No just and reasonable
grounds are made out by the plaintiff as to why the documents were not filed
by the plaintiff with the plaint.
9. I find no force in this application. The application is hereby dismissed
with costs of Rs.10,000/-.
CS(OS)946/2002
List on 20th April 2009 before the Joint Registrar.
March 06, 2009 SHIV NARAYAN DHINGRA J.
rd
CS (OS) 946/2002 Asia Pacific Breweries vs. Superior Industries Page 5 Of 5
