Delhi High Court
Educare Limited & Anr. vs S. K. Sachdev & Anr. on 29 August, 2018
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 29th August, 2018.
+ CS (COMM) 107/2018
EDUCARE LIMITED & ANR. ..... Plaintiffs
Through: Mr. Sanjiv Sindhwani, Sr. Advocate
with Mr. Zeeshan Khan, Advocate.
(Mob.9560386043)
versus
S. K. SACHDEV & ANR. ..... Defendants
Through: Mr. M.K. Miglani, Advocate.
(Mob. 9811081980)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
I.A. 6818/2018
1. This is an application under Order XVI Rule 1(3) CPC filed by the
Plaintiffs seeking amendment/modification of the list of witnesses.
2. Brief background of this matter is that the Plaintiffs have filed the
present suit for permanent injunction restraining passing off, damages, etc.,
of the trade mark SHRIRAM SCHOOL. Issues were framed in the matter
on 3rd March, 2015. One of the issues framed is:
"(1) Whether the use of the name Shree Ram World
School by the Defendants amount to passing-off their
services as and for that of the Plaintiffs, as alleged? OPP"
3. The Plaintiffs have led evidence in the matter after filing list of
witnesses. The list of witnesses originally filed by the Plaintiffs consists of
12 witnesses. The main witnesses who were produced by the Plaintiff were
Ms. Lakshmi Singh as PW-1 and Ms. Kizake Andoor Girija as PW-2. The
Plaintiffs have also led evidence of various summoned witnesses who
produced the records. The cross-examination of the Plaintiff's witnesses
PW-1, 2, 3 and 4 concluded on 22nd August, 2017. A perusal of the evidence
of PW- 1 and 2 shows that they were the primary witnesses who were
produced to establish the reputation of the Plaintiff and its name. Apart from
the said witnesses the Plaintiffs also summoned witnesses who produced
advertisements, publicity related information.
4. The present application was moved praying that two further witnesses
i.e. Mr. Pushkar Sharma an Alumnus of the Plaintiff's school and one Mr.
Narender Sharma, an employee of the Plaintiff's school be permitted to be
added as witnesses and their evidence also may be permitted to be recorded.
In the application, the reasons given for non production of the alumnus is
that his name was inadvertently omitted. Insofar as Mr. Narender Sharma is
concerned, the Plaintiffs seek to produce the said witness, in order to show
the names of prominent persons whose children studied in the Plaintiff's
school.
5. In the reply to the application, it is argued by the Defendants that the
application is a complete abuse of process and the only purpose is to
overcome the shortcomings in the depositions of witnesses who were
examined and discharged.
6. Arguments have been addressed on behalf of Plaintiff by Sh. Sanjiv
Sindhwani today and Ms. Anuradha Salhotra on previous dates of hearing.
Mr. M. K. Miglani has addressed arguments on behalf of the Defendants.
7. A perusal of the manner in which the suit has proceeded shows that if
evidence is permitted to be protracted in this manner, suits will never reach
it's culmination. From 2015, it has taken three years for the Plaintiffs to
examine its witnesses. Without going into the reason as to why such a delay
has occurred despite a Local Commissioner having been appointed to record
the evidence of PW-1 and PW-2 who were the main witnesses, such a long
period is contrary to the very purpose of appointing a Local Commissioner
for speedy recordal of evidence.
8. A perusal of the application which is filed, shows that one of the
employees is being sought to be produced, in addition to the earlier two
employees, to establish the reputation of the Plaintiff's school. This is not in
alignment of the provisions of Order XVIII, inasmuch as the Plaintiff ought
to act with due diligence, if it wishes to establish reputation and it cannot
wait till the cross examination of all its witnesses is concluded, to lead
further evidence in order to strengthen its case or plug any loopholes. Order
XVIII has been amended by the Commercial Courts Act and clearly
provides that the affidavits of all the witnesses whose evidence is proposed
to be led shall be filed simultaneously.
9. Additional evidence would be permitted under order XVIII only if
sufficient cause is shown. The entire purpose of enacting the Commercial
Courts Act as also the powers vested in the court under Order XVA relating
to `case management hearing' is to ensure that evidence recordal is done in a
time bound manner and not in a manner so as to suit the luxury of a litigant.
Under Order XVA (6)(1)(g), the Court has the power to strike off the name
of any witness or evidence that it deems irrelevant to the issues framed.
10. A perusal of the application in the present case clearly shows that
there is no reason whatsoever except that it was an inadvertent omission, for
non production of the employee of the Plaintiffs at the time when initial
affidavits were filed. It is clear that after the conclusion of the cross
examination, the Plaintiffs may want to lead further evidence in order to
further strengthen their case and also to get around the cross examination
which has been conducted. Such a procedure cannot be permitted inasmuch
as the Defendant would be put to a serious disadvantage in such a situation.
Once the defendant has exhausted all its ammunition to destroy the case of
the Plaintiffs, if further evidence is permitted either to plug the loopholes
exposed or the shortcomings revealed, then the process of recordal of
evidence will never end. The apparent purpose for seeking to produce Mr.
Narender Sharma is to only file the list of prominent persons whose students
are studying in the Plaintiff's School. This could have been done through
any of the earlier witnesses or at an earlier stage itself. There is no
explanation for seeking this permission at this stage. The permission to
produce Mr. Narender Sharma is accordingly rejected.
11. Insofar as the alumnus is concerned, since he is a third party who may
have come into contact with the Plaintiffs later, over whom they may or may
not exercise control, the Plaintiffs are permitted to file his affidavit within
two weeks and one session of cross examination is permitted in respect of
the said witness.
12. After this witness Mr. Pushkar Sharma, the evidence of the Plaintiffs
shall stand closed. No further evidence will be permitted to be led by the
Plaintiffs.
13. The Defendant's evidence shall be filed within eight weeks of
conclusion of the cross examination of Mr. Pushkar Sharma. The Local
Commissioner shall record the evidence of the Defendants' witnesses.
14. The Court has perused the list of witnesses of the Defendants. The
Defendants wish to produce 11 witnesses from various State Boards to
establish the running of various schools under the name of Sri Ram. The
Defendants would limit their summoned witnesses to five and if any
information is required from the remaining State boards, the same may be
obtained and filed by the defendants witness Mr. Anil Sachdeva. The
affidavit of Mr. Anil Sachdeva shall be filed within 8 weeks after the
conclusion of cross examination of Plaintiff's evidence, the summoned
witnesses shall be produced thereafter.
15. Since the learned Local Commissioner who had earlier recorded
evidence is unavailable, list before Mr. Kartar Singh Khurana, ADJ (Retd.)
(M:9810257327). The Local Commissioner shall be paid an additional fee
of Rs. 50,000/- by the Defendants, at this stage. The evidence shall be
strictly recorded in terms of the Delhi High Court (Original Side) Rules
2018. Day to day proceeding sheets shall be maintained. In respect of
outstation witnesses evidence shall be recorded on a day to day basis.
16. List before Court for perusal of the progress in recordal of evidence
on 10th January, 2019.
PRATHIBA M. SINGH
JUDGE
AUGUST 29, 2018
Pallavi
