Aktiebolaget Volvo & Ors vs R. Venkatachalam & Anr
2009 Latest Caselaw 2097 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    IA No.5683/2008 in CS(OS)516/2007

%                                    Date of decision:    18.05.2009

AKTIEBOLAGET VOLVO & ORS                           .......        Plaintiffs
                            Through: Mr. Praveen Anand with Ms. Diva
                                     Arora, Tanya Varma, Advocates

                                    Versus

R. VENKATACHALAM & ANR. .......                           Defendants
                            Through: Mr. Amarjeet Singh with Ms. Navneet
                                     Momi, Advocates


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

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 the judgment should be reported
       in the Digest?                                   Yes


RAJIV SAHAI ENDLAW, J.

1. The question for consideration is, whether it is permissible in

law to permit a party to a civil suit to file only photocopy of the

document and exempt such party from placing the original document

on the file of the court and merely to give inspection thereof to the

opposite party at the time of admission/denial of documents and at

the time of tendering the document into evidence and to put the

Exhibit mark again on photocopy on the file of the court.

2. The plaintiffs in this suit for permanent injunction restraining

infringement of trademark passing off etc. and for the ancillary

reliefs of damages, delivery etc. have applied to permit the plaintiffs

to rely on the photocopies and to produce the originals only for

inspection at the time of admission/denial of documents. It is

contended that the plaintiffs have filed only copies, as original

documents are required in various litigations globally and hence it is

not possible to file the original documents in this court.

3. The defendants have contested the application by pleading that

the prayer made therein is not maintainable in law; under Order 7

Rule 14 of the CPC the plaintiffs are required to file with the plaint

documents on which they rely or sue; under Order 13 Rule 1 the

parties are required to produce on or before the settlement of issues

all the documents/evidence in original where the copies thereof had

been filed along with the plaint; that the plaintiffs are thus not

entitled to seek exemption from filing the original documents; that

the production of the original documents is a mandatory requirement

of law not only under CPC but under the Evidence Act as well as the

Delhi High Court (Original Side) Rules. It is further pleaded that the

plaintiffs have to prove their case by primary evidence on record and

if photocopies are produced, it is not possible for the defendants to

compare those with the originals. On merits, it is denied that the

original documents are required as alleged by the plaintiffs and it is

further contended that it is open to the plaintiffs to apply for

certified copies of the documents, on the same being

proved/exhibited.

4. The counsel for the plaintiffs has in his submissions, relied on

A] The Mulla's CPC 17th Edition Volume-II Page 694 where in

the commentary under Order 13 Rule 1 it is stated:

"The word "produce" means not that the documents should be filed into the court, but that they should be with the parties in the court. This rule does not exclude the discretion of the court to receive documentary evidence at a subsequent stage of the proceedings."

For the first proposition aforesaid reference therein is made to

Talewar Singh Vs. Bhagwan Dass (1908) 12 Cal WN 312.

B] The Law Lexicon by P. Ramanatha Aiyar, 1987 Edition

wherein it is stated:

"TO PRODUCE" a thing or document to a person, means, to show it to him personally and does not involve the idea that the possession of it is to be parted with (as) a Railway passenger's duty to produce the ticket for inspection by the ticket examiner".

It has further been stated therein:

"Produced" is a word which has not got any exact legal meaning but which requires to have an interpretation placed upon it in the statute in which it is used. The requirement that something must be produced to the court does not mean that it must be physically produced in the court room. "Produced" means that the objects to which the order is going to be related must be properly identified as being the objects which were concerned in the offence and they must be available for the court to look at, if it wishes to do so".

C] Prem Kumari Vs. Sushil Kumari AIR 2000 Rajasthan 415

dismissing the revision against the order of the Trial Court

exhibiting the photocopies. It was found that the photo stat

copies were duly compared and produced prior to the issues

and the original had been produced at the time of recording of

the evidence; in these circumstances, the putting of the Exhibit

marks on the photocopies was upheld, especially since the

originals were also directed to be retained in the court for

cross examination.

However I must notice that there is no discussion on the

various provisions of law in this judgment.

D] Sehgal Puri Pvt. Ltd., Vs. The National Newsprint and

Paper Mills Ltd. AIR 2001 Delhi 449 DB holding that the

object of Order 13 Rule 2 CPC is merely to prevent belated

production of documents so that it may not work injustice to

the defendant. In that case also the photocopies of the

documents had been produced along with the plaint and had

even been put up for admission and denial. In the

circumstances, the production of originals at the stage of

evidence was permitted.

Here also there is no discussion on the other provisions

relating to production of documents.

E] Malkit Singh Vs. The Special Court N.D.P.S. AIR 2006

Rajasthan 81 but which I do not find relevant to the question framed

herein above.

5. The counsel for the defendants besides reiterating the legal

pleas aforesaid contained in the reply itself has contended that the

plaintiffs admit being in power and possession of the documents and

it is not the case of the plaintiffs that the originals have already been

filed in any other court; that the plaintiffs have not come under

Section 65 of the Evidence Act; that suits relating to trademark are

generally upon documents and the plaintiffs cannot be exempted

from filing the original documents; that the photocopies filed by the

plaintiffs are secondary evidence. On merits it is contended that the

documents filed are not such with respect whereto plaintiffs can be

exempted. It is contended that as far as the trademark certificates

and other forms under the Trade Mark Rules are concerned, certified

copies thereof ought to have been filed, photocopies of the

magazines containing the advertisements of the plaintiffs are also

not such documents in as much as, as many original magazine as

plaintiffs can desire can be available; similarly with respect to the

invoices showing the volume of business it is contended that it is not

as if the plaintiffs have filed all the invoices; they have only filed

sample invoices and can file originals thereof and can file other

original invoices by way of sample in other courts. It is also

contended that certified copies of the magazines/articles from the

publishers ought to have been filed.

6. The counsel for the defendants has referred to:

A] R.V.E. Venkatachala Gounder Vs. Arulmigu

Viswesaraswami AIR 2003 SC 4548.

B] Sivasubramania Thevar Vs. T.N.S. Theerthapathi AIR 1933

Madras 451.

C] Om Prakash Berlia Vs. Unit Trust of India AIR 1983

Bombay 1.

But all of which again, I do not find relevant to the question

posed by me above.

7. At the outset, I must state that, to hold that there is no power

whatsoever in the court to exempt placing of the original document

on the file of the court on the condition of the party offering the

same for inspection in the court as and when required, is not found

by me to be in consonance with the principles of convenience and

expediency and with the times. The courts, increase in number

whereof has not kept pace with the increase in population and

development of trade and commerce which also leads to increase in

litigation, are today over loaded and facing a crunch not only of

manpower but also of shere physical space and infrastructure. The

court buildings/premises/infrastructure which were built and

designed for a certain volume of litigation, are falling far short of the

number of legal cases transacted therein. The persons handling the

court files and/or the papers filed in the court work under

tremendous time constraints and pressure and cannot be expected to

take care or safety and preservation of the papers in the court file, as

one would of his own. The papers filed, for being retained on the

court file are punched not once or twice but several times. Often the

papers are found to come loose from the court file and/or on

repeated handling with torn corners. The documents which may be

required to be filed in a lis may not merely be magazines or invoices

as in this case but may be title documents to the immovable

properties of the parties or of financial investments of the parties or

as to educational qualifications/experience of parties and which may

be irreplaceable qua the parties and loss/damages whereto may

depreciate the value of the property/financial investments of the

parties. The question posed above has to be adjudicated keeping all

the said factors in mind and not merely the documents in the present

case.

8. The courts today have undertaken an e-project, the vision

whereof is a paper less court. Of course, the same is still a far cry.

However, that being the vision, the law must evolve in consonance

therewith and not to create impediments/obstacles in the same. In

many countries, the filing of lis/claims in the court is through

electronic media only without the advocate or the litigant physically

visiting the court or filing a single paper therein. All this is not

possible if insistence is made on filing of the original documents. It is

possible today to scan the document and e-file it with the court and

to simultaneously serve it on the opposing parties.

9. I am, therefore, of the view that if the provisions of the codified

law so permit, it would be expedient to, where the court finds that

the original document is such, the loss or damage whereto could

cause irreparable loss or inconvenience to a litigant, to allow such

original to remain in the safety of its owner/possessor and to allow

filing of photocopy thereof only, with a condition on the party to

produce the original for inspection as and when required.

10. Yet another reason which prevailed on me for even before

considering the provisions of law find the aforesaid to be more

reasonable, was the advancement in science and technology which

today allows the photocopy of the original to be as good/clear as the

original, if not clearer. A number of times, it is difficult to

distinguish between the original and the photocopy. Gone are the

times when copies of the original were made manually either in hand

or in type with inherent possibility of differences between the two. In

those times, seeing the copy could not be the same as seeing the

original. One could not have the impact of seeing the original by

seeing such a copy. However, the process of photocopying has

changed all that. The ocular inspection of a photocopy of a

document is as good as of the original. The laws which were drafted

in those times have to be interpreted in consonance with the present

times and technology.

11. However, it still has to be seen where the aforesaid view is

permissible under the relevant provisions of law, in as much as

inherent powers of the court cannot be invoked in consistently with

the specific provisions.

12. The CPC in

A] Order 5 Rule 7 provides for the summons to appear and

answer to the defendant to also order to the defendant "to

produce" all documents or copies thereof specified in Order 8

Rule 1A.

B] Order 7 Rule 14 provides that where a plaintiff sues upon a

document or relies upon a document in his possession or

power in support of his claim, he shall enter such documents in

a lis and "shall produce it in court" when the plaint is

presented by him. It further provides that a document which

ought to be "produced in court" when the plaint is presented

but is not produced shall not without the leave of the court be

received on the hearing of the suit.

C] Order 8 Rule 1A imposes a corresponding obligation and

places a corresponding bar on the defendant.

D] Order 11 Rule 14 provides for the court to at any time order

"production" by any party of documents relating to any matter

in question in suit.

E] Order 11 Rule 15 provides for giving inspection to the opposite

party of the documents.

F] Order 11 Rule 9 provides for giving inspection of entries in

business books, verified by affidavit.

Provisions aforesaid till now refer only to document.

G] Order 13 Rule 1 for the first time provides for the parties to

"produce" before the settlement of issues "all the

documentary/evidence in original where the copies thereof

have been filed along with the plaint or written statement."

A reading thereof shows that the reference to the

documents in the earlier provisions noticed above is not

necessarily to original documents and the documents

referred to in the earlier provisions could be copies.

H] Order 13 Rule 5 exempts the filing of original account books

and permits filing of copies of entries therein insite of Order 13

Rule 1.

I] Order 13 Rule 9 provides for return of documents after

disposal of the suit and expiry of time for appeal therefrom or

earlier on filing of certified copy thereof.

13. Thus reference in CPC to documents, except in Order 13 Rule

1 is not necessarily to the original documents and includes copies

within the document. Thus the contention of the counsel for the

defendant of Order 7 Rule 14 or Order 8 Rule 1A of the CPC

requiring originals to be filed is not found to be correct.

14. Even otherwise "document" is defined in Black's Laws

Dictionary 8th Edition inter-alia as something tangible on which

words symbols or marks are recorded.

15. In Public Prosecutor Vs. T. Amrath Rao AIR 1960 AP 176 it

was held that any decipherable information which is set down in the

lasting form would be a document.

16. Section 3 of the Indian Evidence Act defines:

"Document means any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

"Illustrations

A writing is a document

Words printed, lithographed or photographed are document

A map or plan is a document

An inscription on a metal plate or stone is a document

A caricature is a document"

Stephen, in his Digest of Evidence defines document as any

substance having any matter expressed or described on it by marks

capable of being read.

17. Document is also defined in Section 3(18) of the General

Clauses Act as including any matter written, expressed or described

upon any substance by means of letters, figures or marks or by more

than one of those means which is intended to be used or which may

be used for the purpose of recording that matter.

18. The definition of document in Section 29 of the Indian Penal

Code is similar. I also do not find anything inconsistent with or

deferent in the Delhi High Court (Original Side) Rules either.

19. From all the aforesaid definitions of document found by me, a

photocopy or a copy would also be a document. Thus it cannot be

said that the provisions of the CPC for filing of documents

necessarily relate to original documents. The legislature has used

the word original only in Order 13 Rule 1 of CPC.

20. The next questions which arise are, as to whether under Order

13 Rule 1 of the CPC the original document has to be placed on the

file of the court or to be merely given inspection of for

admission/denial of documents; whether the Evidence Act while

providing for proof of documents by primary evidence requires

filing/placing of the original document on the record of the court.

21. There can be no manner of doubt that the Evidence Act

providing in Section 64 thereof of proof of documents by primary

evidence only means proof of the original document. Even though

Section 62 defining the primary evidence as meaning the document

itself, does not state original document but since Section 63 while

defining secondary evidence includes "copies from the original" and

"copies made from and compared with the original" it necessarily

follows that only the original is primary evidence.

22. However, most importantly, Section 62 is as under:-

"62.Primary Evidence- Primary evidence means the

document itself produced for the inspection of the court."

Thus even at the stage of proof, the requirement is only for

production of the original for inspection of the court and not of filing

of the original in the court. It cannot be argued that production for

inspection of the court has to be necessarily by placing it on the file

of the court. It can also be by producing it as and when directed by

the court for inspection thereof.

23. When at the stage of proof of documents, the requirement

under Section 62 of the Evidence Act is only of production of original

for inspection of the court, Order 13 Rule 1 of the CPC requiring

production of originals has to be necessarily meant as production of

original for inspection of the court and not as filing of the original.

Significantly, Order 13 Rule 1 also uses both expressions "produce"

in connection with original and "filed" in connection with the copies.

The different expression used, together with definition/meaning of

produce cited by counsel for plaintiffs also lend me to hold that the

original documents are only intended to be produced i.e. to be given

inspection of while the copies are to be filed.

24. I, therefore, find that the scheme of the aforesaid legislative

provisions also permits production of originals for inspection only

and filing of copies only.

25. However, Order 13 Rule 4 CPC and the practise directions in

the trial of suits issued by this court, also provide for making of

endorsement on documents admitted in evidence. The document

which is admitted in evidence is the primary document i.e. the

original. Is the endorsement of exhibit mark to be made on original

only which would again mean placing it on court record? In my view

no. These provisions are procedural. When the substantive law

permits only production for inspection of original, once that has been

done, the endorsement/exhibit mark can be put on copy on court

record also.

26. The aforesaid should not be understood as laying down that in

all cases the filing of photocopies is enough. If the document is

doubtful or for any other reason required by the court to remain in

original on the file of the court, the court can always direct so and a

party cannot insist on filing of copy only. There may be other

instances where filing of the original is necessary, as in the case of

documents like Will, Agreements which may be terminated/cancelled

by destruction. The courts can in such cases insist upon the original

being filed on the record.

27. I, therefore, answer the question posed by me in opening

paragraph in the affirmative and in law there is no impediment to

granting the application.

28. The next question is whether in the facts and circumstances of

the present case the application should be granted. Though the

arguments of the counsel for the defendant of it being possible to file

magazines/article in original in as much as several copies of the

same can be available is attractive but impractical. In the normal

course, a litigant may not retain a large number of copies of the

magazines/articles and may retain a single or a few copies only for

future use. It is very difficult for a litigant to long after the date of

publication approach the publisher for other copies of the

newspapers, magazines and articles. The same is the position of the

invoices. The various laws i.e. the Income Tax Laws and the

Companies Act provide for the duration for which the records are to

be preserved. The parties may beyond the said terms retain a

few/sample records for further use. It thus cannot be said that same

invoices can be filed in each court.

29. Even otherwise I do not find the present case to be such where

any of the documents is doubtful. The counsel for the defendants has

also not pointed out anything in this regard. The files of the court

also bulge up with copies as well as originals being filed. In the

present case, I do not see any prejudice which could be caused to the

defendants, especially when the plaintiffs are themselves offering to

produce the original for inspection of this court or of the defendants

whenever so directed.

30. As far as the contention of the counsel for the defendants of it

being inconvenient and physically impossible to compare all the

documents, I find that even if originals are to be filed in the court

and photocopies thereof given to the defendants, the defendants

before admitting/denying the originals on the court file will have to

satisfy themselves that the photocopies given to it tally with the

originals. I do not thus find that any inconvenience will be caused to

the defendants by following the procedure aforesaid.

31. The application is therefore allowed.

RAJIV SAHAI ENDLAW (JUDGE) May 18, 2009/PP

#18.05.2009 %

Present: Mr. Praveen Anand with Ms. Diva Arora, Tanya Varma, Advocates.

Mr. Amarjeet Singh with Ms. Navneet Momi, Advocates.

+ IA No.5683/2008 (of the plaintiff u/S 151 CPC in CS(OS)516/2007.

* Vide separate order IA No.5683/2008 of the plaintiffs has been

allowed. List before the Joint Registrar on 23rd July, 2009. The

plaintiffs shall on the said date offer original of all documents of

which copies have been filed to the counsel for the defendants who

shall then carry out admission/denial on the photocopies thereof on

the court record and Exhibit marks shall be put on the said

photocopies only of documents which are admitted.

RAJIV SAHAI ENDLAW,J May 18, 2009 PP