SUDHIR KUMAR @ S. BALIYANversusVINAY KUMAR G.B.

                        [2021] 7 S.C.R. 731                              731


                SUDHIR KUMAR @ S. BALIYAN                                A
                                  v.
                       VINAY KUMAR G.B.
                   (Civil Appeal No. 5620 of 2021)
                       SEPTEMBER 15, 2021                                B
         [M. R. SHAH AND ANIRUDDHA BOSE, JJ.]
       Code of Civil Procedure, 1908 –Or.VII, r.14(3) and Or. XI,
R.1 (as amended by the amendment in the Commercial Courts Act) –
Filing of additional documents –The appellant-original plaintiff filed
                                                                         C
the commercial suit claiming a decree of permanent injunction
against the defendant from using the Trade Mark of appellant –
Appellant filed an application u/Or.VII, r.14(3) and sought to file
additional documents – The said application was dismissed by the
Commercial Court –The High Court confirmed the order by the
Commercial Courts – On appeal, held: Or. XI, R.1 as amended by           D
the amendment in the Commercial Courts Act, with respect to the
suits before the commercial division and the Commercial Court, the
provisions of Or.VII, R.14 (3) were not applicable – Therefore, as
such the plaintiff applied the wrong provision seeking leave of the
court to place on record the additional documents – Now, before
                                                                         E
the Supreme Court, the application submitted by the appellant was
considered submitted u/Or. XI R.1(4) of the CPC as both the
Commercial Court and the High Court had considered and applied
Or.XI, R.1 –In the said application for additional documents, it was
specifically mentioned that so far as the invoices are concerned,
the same were not in its possession at the time of the filing of the     F
plaint and so far as the other documents are concerned they were
not filed due to they being voluminous – Therefore, so far as the
invoices sought to be relied on/produced as additional documents
ought to have been permitted – Insofar as, the non-filing of the
additional documents other than the invoices on the ground of they
                                                                         G
being voluminous cannot be said to be a reasonable cause for non-
disclosure/filing along with plaint – Both the courts below rightly
not permitted the plaintiff to rely upon the documents, other than
the invoices as additional documents in exercise of the powers
u/Or. XI R.1 (4) r/w. Or. XI R. 1 (5).
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                                 731
732            SUPREME COURT REPORTS                        [2021] 7 S.C.R.


A           Partly allowing the appeal, the Court
            HELD: 1. It emerges from the record that the first suit
      was filed by the plaintiff in the month of October, 2018, bearing
      TM No.236 of 2018, restraining the defendant from infringing
      and passing-off plaintiff’s Trade Marks. That an ex-parte interim
B     injunction was passed in favour of the plaintiff by order dated
      29.10.2018. It appears having realized and found that the earlier
      suit was not in consonance with the provisions of the Commercial
      Courts Act, the plaintiff withdrew the said suit being TM No.236
      of 2018 on 27.07.2019 with liberty to file a fresh suit as per the
      Commercial Courts Act, 2015. Therefore, the second suit wasfiled
C     on 31.08.2019 and within a period of thirty days from filing of the
      second suit the appellant herein – original plaintiff preferred the
      present application seeking leave of the court to file additional
      documents. In the application, it was specifically mentioned that
      so far as the invoices are concerned, the same were not in its
D     possession at the time of the filing of the plaint and so far as the
      other documents are concerned they were not filed due to they
      being voluminous. Therefore, so far as the invoices sought to
      be relied on/produced as additional documents ought to have
      been permitted to be relied on/produced as it was specifically
      asserted that they were not in his possession at the time of filing
E     of the plaint/suit.[Para 8.1][747-A-E]
             2. Now, so far as the other documents sought to be relied
      on/produced as additional documents other than the invoices are
      concerned the same stands on different footing. It is not disputed
      and in fact it was specifically admitted and so stated in the
F     application that those additional documents other than the invoices
      were in their possession but not produced being voluminous and
      that the suit was filed urgently. However, it is to be noted that
      when the second suit was filed, it cannot be said to be urgent
      filing of the suit for injunction, as the first suit was filed in the
G     month of October, 2018 and there was an exparte ad interim
      injunction vide order dated 29.10.2018 and thereafter plaintiff
      withdrew the said first suit on 27.07.2019 with liberty to file a
      fresh suit as per the Commercial Courts Act and the second suit
      came to be filed on 31.08.2019 after period of one month of the
      withdrawal of first suit. Therefore the case on behalf of the plaintiff
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   SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.                         733


that when the second suit was filed, it was urgently filed therefore,    A
the additional documents sought to be relied upon other than the
invoices were not filed as the same were voluminous cannot be
accepted. And therefore as such Order XI Rule 1 (4) shall not be
applicable, though the application was filed within thirty days of
filing of the second suit. While seeking leave of the court to rely
                                                                         B
on documents, which were in his power, possession, control or
custody and not disclosed along with plaint or within the extended
period set out in Order XI Rule 1 (4), the plaintiff has to establish
the reasonable cause for non disclosure along with plaint. [Para
8.4][748-B-G]
       3. In view of the facts and circumstances and in view of the      C
filing of the first suit in the month of October, 2018; the ex-parte
ad interim injunction order in favour of the plaintiff dated
29.10.2018; withdrawal of the first suit on 27.07.2019 and
subsequently the filing of the second suit on 31.08.2019, non filing
of the additional documents other than the invoices on the ground        D
of they being voluminous cannot be said to be a reasonable cause
for non disclosure/filing alongwith plaint. There was sufficient time
gap between the filing of the first suit and filing of the second suit
i.e. approximately 10 months and therefore when the second suit
was filed the plaintiff was having sufficient time after filing of the
first suit, to file the additional documents other than the invoices     E
at the time when the second suit was filed. Therefore, as such,
both the courts below have rightly not permitted the plaintiff to
rely upon the documents, other than the invoices as additional
documents in exercise of the powers under Order XI Rule 1 (4)
read with Order XI Rule 1 (5). [Para 8.5][748-G-H; 749-A-C]              F
        CIVIL APPELLATE JURISDICTION: Civil Appeal No.5620 of
2021.
      From the Judgment and Order dated 06.04.2021 of the High Court
of Delhi at New Delhi in C.M. (M) 181 of 2021.
                                                                         G
      Sachin Datta, Sr. Adv., Jayant Kumar, Amit Mehta, Ms. Athira G.
Nair for M/s LAWFIC, Advs. for the Appellant.
        Ms. Kruttika Vijay, Aditya Verma, Advs. for the Respondent.

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734             SUPREME COURT REPORTS                            [2021] 7 S.C.R.


A           The Judgment of the Court was delivered by
            M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 06.04.2021 passed by the High Court of Delhi at New
      Delhi in C. M. (M) No.181 of 2021, by which the High Court has dismissed
B     the said petition preferred by the appellant herein – original plaintiff and
      has confirmed the order dated 13.11.2019 passed by the learned
      Commercial Court, dismissing the application filed by the appellant under
      Order VII Rule 14 (3) of the Code of Civil Procedure (hereinafter
      referred to as the Code) seeking leave of the court to place additional
C     documents on record, the original plaintiff has preferred the present
      appeal.
              2. The appellant herein – original plaintiff filed the commercial
      suit before the Commercial Court pending in the court of learned
      Additional District Judge (Central) 10, being T.M. No.123 of 2019
D     interalia for claiming a decree of permanent injunction against the
      defendant from using the Trade Mark “INSIGHT”, “INSIGHT
      ACADEMY”, “INSIGHT IAS ACADEMY” and “INSIGHT
      PUBLICATIONS”. At this stage, it is to be noted that the appellant filed
      the earlier suit being Trade Mark Suit No.236 of 2018, claiming such
      adoption and use of the trademark. However, subsequently the same
E     came to be withdrawn on 27.07.2019, as the same was not filed in
      conformity with the provisions of the Commercial Courts Act, 2015
      (hereinafter referred to as the Commercial Courts Act) and subsequently
      filed the present suit on 31.08.2019. In the suit it is alleged that the
      adoption and use of the trademark by it is since 2006. As per the provisions
F     of Order XI Rule 1 applicable to the suits before the commercial division
      of a High Court or a commercial court, the plaintiff was required to file
      a list of all documents and photocopies of all documents, in its power,
      possession, control or custody, pertaining to the suit, along with the plaint
      or certain documents including the invoices, were not produced along
      with the plaint and therefore the appellant herein filed the application
G     under Order VII Rule 14 (3) read with Section 151 of CPC, seeking
      leave of the court to file additional documents.
            2.1    By order dated 13.11.2019, the learned Commercial Court
                   dismissed the said application seeking leave of the court to
                   file additional documents, filed by the appellant. That
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   SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.                               735
                 [M. R. SHAH, J.]

             thereafter the defendant filed the written statement on           A
             06.01.2020. As per Order XI Rule 7 even the defendant
             was required to file the list of all documents, photocopies of
             all documents, in its power, possession, control or custody,
             pertaining to the suit, along with the written statement or
             with its counter claim, if any. However, some documents
                                                                               B
             were not produced by the defendant along with the written
             statement and therefore the defendant filed an application
             under Order XI Rule 1 (10) of the CPC seeking leave of
             the court to produce additional documents as set out in the
             said application, however, the commercial court partly
             rejected the said application vide order dated 08.10.2020.        C
             The respondent herein – original defendant preferred an
             appeal against the order dated 08.10.2020 before the Delhi
             High Court. The Delhi High Court vide order dated
             07.12.2020 allowed the said appeal taking on record all the
             documents filed by the defendant. That thereafter the learned     D
             Commercial Court dismissed the interim injunction
             application filed under Order XXXIX Rule 1 and 2 of the
             CPC of the plaintiff vide order dated 16.01.2021.
      2.2    That thereafter the appellant herein – original plaintiff filed
             CM (M) No.181 of 2021 before the High Court of Delhi              E
             challenging the order dated 13.11.2019, dismissing the
             application seeking leave of the court to file additional
             documents filed by the plaintiff. By the impugned judgment
             and order, the High Court has dismissed the said CM (M)
             No. 181 of 2021 and has confirmed the order passed by the
             learned Commercial Court dismissing the application seeking       F
             leave to file additional documents filed by the plaintiff.
      3. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court, the original plaintiff has preferred
the present appeal.
                                                                               G
       4. Shri Sachin Datta, learned Senior Advocate appearing on behalf
of the appellant has vehemently submitted that in the facts and
circumstances of the case, the application submitted by the plaintiff to
file/produce on record the additional documents, as mentioned in the
application submitted under Order XIV Rule 3 ought to have been allowed.
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736     SUPREME COURT REPORTS                              [2021] 7 S.C.R.


A     4.1   It is vehemently submitted that as such the documents which
            are sought to be relied upon and sought to be produced on
            record are very much necessary for the purpose of just
            decision of the suit.
      4.2   It is submitted that when the defendant was permitted to
B           produce on record the additional documents along with the
            written statement in exercise of powers under Order XI
            Rule 1 (10) of the CPC, similarly the plaintiff also ought to
            have been permitted to place on record the additional
            documents which as such are very much necessary for just
            decision of the suit.
C
      4.3   It is further submitted that by Shri Datta, learned Senior
            Advocate appearing on behalf of the appellant that the High
            Court ought to have appreciated the application to file
            additional documents was filed by the plaintiff within 10
            days of filing of the suit. It is submitted that as such therefore
D           the High Court has erred in holding that the additional
            documents were produced by the plaintiff at a belated stage.
            It is further submitted that the High Court has also materially
            erred in observing that the explanation for non-filing of
            additional documents is an afterthought and when the
E           application for interim injunction under Order XXXIX Rule
            1 was kept for orders.
      4.4   It is submitted that the High Court has at all not appreciated
            the fact that the application seeking leave of the court to
            produce the additional documents was filed within 30 days
F           of filing of the suit and therefore the requirement under
            Order XI Rule 1 (4) of the CPC was satisfied.
      4.5   It is further submitted that even the High Court has erred in
            not appreciating that the additional documents are in support
            of the pleadings already made in the plaint.
G     4.6   It is further submitted that even the High Court has erred in
            not appreciating that the learned Trial Court/Commercial
            Court erred in holding that the documents are suspicious
            because the plaintiff did not mention about the existence of
            the said documents in the plaint. It is submitted that at the
            stage of production of the additional documents, the learned
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   SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.                              737
                 [M. R. SHAH, J.]

            Trial Court/Commercial Court was not at all required to           A
            consider the genuineness of the documents sought to be
            produced, which otherwise are required to be decided or
            considered during the trial of the suit.
      4.7   It is further submitted that even otherwise so far as the
            invoices, which are sought to be produced, are concerned,         B
            it was specifically stated that the said documents were not
            available or in possession of the plaintiff at the time when
            the suit was filed and the same were discovered
            subsequently.
      4.8   It is further submitted by the counsel appearing on behalf        C
            of the appellant that cogent reasons were given by the
            plaintiff for not producing the additional documents other
            than the invoices, along with the suit. It is submitted that as
            such there was no other malafide intention and/or negligence
            on the part of the plaintiff for not producing along with the
            plaint the additional documents other than the invoices. It is    D
            submitted that the suit was filed on an urgent basis seeking
            an ex-parte ad interim injunction and therefore the additional
            documents other than the invoices, which were bulky were
            not produced along with the plaint. It is submitted that
            therefore when the application for leave to produce the           E
            additional documents was filed within a period of 10 days
            from the date of filing of the suit i.e. without any undue
            delay, the said application ought to have been allowed and
            the plaintiff ought to have been permitted to produce the
            additional documents as mentioned in the application.
                                                                              F
       5. The present appeal is vehemently opposed by Ms. Kruttika
Vijay, learned Advocate appearing on behalf of the respondent herein –
original defendant.
      5.1   It is submitted that in the facts and circumstances of the
            case and considering the object and purpose of Order XI           G
            Rule 1 as applicable to the suits before the commercial court
            and considering the said provisions, both the learned Trial
            Court/Commercial Court as well as the High Court have
            rightly dismissed the application filed by the plaintiff under
            Order VII Rule 14 (3) of the CPC.
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738            SUPREME COURT REPORTS                            [2021] 7 S.C.R.


A           5.2    It is submitted that as such no cogent reasons were given
                   by the plaintiff for not producing additional documents along
                   with the plaint. It is submitted that in the absence of any
                   cogent reasons, the application submitted by the plaintiff
                   for seeking leave of the court to produce the additional
                   documents is rightly dismissed. It is submitted that the order
B
                   rejecting the application of the plaintiff seeking leave of the
                   court to produce on record the additional documents is
                   absolutely in consonance with the provisions of the Order
                   XI Rule 1 (4) and Order XI Rule 1 (5) of the CPC.
            5.3    It is further submitted by the learned counsel appearing on
C                  behalf of the respondent herein–original defendant that in
                   view of the specific provision by way of amendment in the
                   CPC, amending Order XI Rule 1 of the CPC w.r.t. the
                   suits before the commercial court, considering Section 16
                   of the Commercial Courts Act, Order VII Rule 14(3) shall
D                  not be applicable at all and what shall be applicable would
                   be Order XI Rule 1 of the CPC as applicable to the suits
                   before the commercial court.
            5.4    It is further submitted that as such the application submitted
                   by the plaintiff lacked bonafides as having realized during
E                  the course of the hearing of the interim injunction application
                   under Order XXXIX Rule 1 that non production of the
                   documents which subsequently are sought to be produced
                   may come in their way and the interim injunction application
                   was kept for orders and as an afterthought the application
                   was given. It is further submitted by the learned counsel
F                  appearing on behalf of the respondent herein - original
                   defendant that so far as the cause/reason shown in not
                   producing the additional documents other than the invoices,
                   namely, as the documents were bulky and therefore they
                   were not produced, cannot be a ground, subsequently to
G                  permit the plaintiff to place on record the additional
                   documents which as such were in possession of the plaintiff
                   at the time of filing of the plaint/suit.
            6. Making the above submissions, it is prayed to dismiss the present
      appeal.
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   SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.                              739
                 [M. R. SHAH, J.]

      7. We have heard the learned counsel appearing on behalf of the         A
respective parties at length.
      7.1   By the impugned judgment and order, the High Court has
            dismissed the petition confirming the order passed by the
            learned Commercial Court dated 13.11.2019, dismissing the
            application filed by the appellant herein – original plaintiff    B
            seeking leave of the court to place additional documents on
            record. That by the said application the plaintiff prayed to
            permit him to place on record the invoices as mentioned in
            paragraph 3 of the application and also certain other
            additional documents. That the plaintiff stated in the
            application for leave to place on record additional documents     C
            in paragraph 3 and 4 as under:-
      “3. That the accompanying documents along with the present
      application in particular invoice dated 03.05.2005, invoice dated
      08.07.2005, invoice dated 10.08.2005, invoice dated 22.02.2006,
      invoice dated 10.04.2006, 1nvo1ce dated 05.06.2006, invoice dated       D
      15.07.2006, invoice dated 10.01.2007, invoice dated 14.03.2007,
      invoice dated 19.05.2007, invoice dated 08.07.2007, invoice dated
      06.09.2007, invoice dated 14.03.2007, invoice dated 01.10.2007
      could not be filed along with plaint being very old and not in
      possession of the plaintiff at the time of filing the plaint. Now the   E
      plaintiff has found the same from the Shivalik Graphics.
      4. That the documents other than above said documents could not
      be filed due to voluminous records pertaining to plaintiff case could
      not be filed at the time of filing of case but the same are very
      important for the adjudication of dispute between the parties.”         F
     The aforesaid application has been dismissed by the learned
Commercial Court, which has been confirmed by the High Court by the
impugned judgment and order.
      7.2   At the outset, it is required to be noted that as such the said
            application for leave to produce on record additional             G
            documents was preferred by the appellant herein – original
            plaintiff under Order VII Rule 14 (3) of the CPC. However,
            considering the Order XI Rule 1 as applicable to the
            commercial suits by which Civil Procedure Code has been
            amended with respect to the suits before the commercial
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740     SUPREME COURT REPORTS                            [2021] 7 S.C.R.


A           court and in view of the Section 16 of the Commercial
            Courts Act, Order VII Rule 14 (3) of the CPC shall have
            no application at all. After the Order XI Rule 1 has been
            amended with respect to the suits before the commercial
            courts and a specific provision/procedure has been
            prescribed with respect to the suits before the commercial
B
            division and before the commercial court, the provision of
            the Code of Civil Procedure as has been amended by the
            Commercial Courts Act, 2015 shall have to be followed
            and any provision of any rule of the jurisdiction of the High
            Court or any amendment to the Code of Civil Procedure by
C           the State Government which is in conflict of the Code of
            the Civil Procedure as amended by Commercial Courts Act,
            the provision of the Code of the Civil Procedure as amended
            by the Commercial Courts Act shall prevail. Therefore,
            Order XI Rule 1 as amended by the amendment in the
            Commercial Courts Act, with respect to the suits before
D
            the commercial division and the commercial court, the
            provisions of Order VII Rule 14 (3) shall not be applicable
            at all. Therefore as such the plaintiff applied the wrong
            provision seeking leave of the court to place on record the
            additional documents. However, considering the fact that
E           thereafter, both the learned Commercial Court as well as
            the High Court treated and considered and even applied
            Order XI Rule 1 of the CPC as amended by the Commercial
            Courts Act and as applicable to the suits filed before the
            commercial division, commercial court, we proceed to
            consider the application submitted by the appellant herein –
F
            original plaintiff, as if the same was submitted under Order
            XI Rule 1 (4) of the CPC.
      7.3   It is true that Order XI Rule 1 of the CPC as applicable to
            the commercial suits brought about a radical change and it
            mandates the plaintiff to file a list of all documents,
G           photocopies of all documents, in its power, possession, control
            or custody, pertaining to the suit, along with the plaint and a
            procedure provided under Order XI Rule 1 is required to
            be followed by the plaintiff and the defendant, when the
            suit is the commercial suit. Order XI Rule 1, as applicable
H           to commercial suits reads as under:-
SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.                             741
              [M. R. SHAH, J.]

  ORDER XI DISCLOSURE, DISCOVERY AND                                      A
  INSPECTION OF DOCUMENTS IN SUITS BEFORE
  THE COMMERCIAL DIVISION OF A HIGH COURT OR
  A COMMERCIAL COURT
  1. Disclosure and discovery of documents.—(1) Plaintiff shall
  file a list of all documents and photocopies of all documents, in its   B
  power, possession, control or custody, pertaining to the suit, along
  with the plaint, including:—
  (a) documents referred to and relied on by the plaintiff in the
  plaint;
  (b) documents relating to any matter in question in the proceedings,    C
  in the power, possession, control or custody of the plaintiff, as on
  the date of filing the plaint, irrespective of whether the same is in
  support of or adverse to the plaintiff’s case;
  (c) nothing in this Rule shall apply to documents produced by
  plaintiffs and relevant only––                                          D
  (i) for the cross-examination of the defendant’s witnesses, or
  (ii) in answer to any case set up by the defendant subsequent to
  the filing of the plaint, or
  (iii) handed over to a witness merely to refresh his memory.            E
  (2) The list of documents filed with the plaint shall specify whether
  the documents in the power, possession, control or custody of the
  plaintiff are originals, office copies or photocopies and the list
  shall also set out in brief, details of parties to each document,
  mode of execution, issuance or receipt and line of custody of           F
  each document.
  (3) The plaint shall contain a declaration on oath from the plaintiff
  that all documents in the power, possession, control or custody of
  the plaintiff, pertaining to the facts and circumstances of the
  proceedings initiated by him have been disclosed and copies thereof     G
  annexed with the plaint, and that the plaintiff does not have any
  other documents in its power, possession, control or custody.
  Explanation.––A declaration on oath under this sub-rule shall be
  contained in the Statement of Truth as set out in the Appendix.
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742      SUPREME COURT REPORTS                            [2021] 7 S.C.R.


A     (4) In case of urgent filings, the plaintiff may seek leave to rely on
      additional documents, as part of the above declaration on oath
      and subject to grant of such leave by Court, the plaintiff shall file
      such additional documents in Court, within thirty days of filing the
      suit, along with a declaration on oath that the plaintiff has produced
      all documents in its power, possession, control or custody, pertaining
B
      to the facts and circumstances of the proceedings initiated by the
      plaintiff and that the plaintiff does not have any other documents,
      in its power, possession, control or custody.
      (5) The plaintiff shall not be allowed to rely on documents, which
      were in the plaintiff’s power, possession, control or custody and
C     not disclosed along with plaint or within the extended period set
      out above, save and except by leave of Court and such leave shall
      be granted only upon the plaintiff establishing reasonable cause
      for non–disclosure along with the plaint.
      (6) The plaint shall set out details of documents, which the plaintiff
D     believes to be in the power, possession, control or custody of the
      defendant and which the plaintiff wishes to rely upon and seek
      leave for production thereof by the said defendant.
      (7) The defendant shall file a list of all documents and photocopies
      of all documents, in its power, possession, control or custody,
E     pertaining to the suit, along with the written statement or with its
      counterclaim if any, including—
      (a) the documents referred to and relied on by the defendant in
      the written statement;

F     (b) the documents relating to any matter in question in the
      proceeding in the power, possession, control or custody of the
      defendant, irrespective of whether the same is in support of or
      adverse to the defendant’s defence;
      (c) nothing in this Rule shall apply to documents produced by the
      defendants and relevant only––
G
      (i) for the cross-examination of the plaintiff’s witnesses,
      (ii) in answer to any case set up by the plaintiff subsequent to the
      filing of the plaint, or
      (iii) handed over to a witness merely to refresh his memory.
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   SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.                                743
                 [M. R. SHAH, J.]

      (8) The list of documents filed with the written statement or             A
      counterclaim shall specify whether the documents, in the power,
      possession, control or custody of the defendant, are originals, office
      copies or photocopies and the list shall also set out in brief, details
      of parties to each document being produced by the defendant,
      mode of execution, issuance or receipt and line of custody of
                                                                                B
      each document.
      (9) The written statement or counterclaim shall contain a
      declaration on oath made by the deponent that all documents in
      the power, possession, control or custody of the defendant, save
      and except for those set out in sub-rule (7) (c) (iii) pertaining to
      the facts and circumstances of the proceedings initiated by the           C
      plaintiff or in the counterclaim, have been disclosed and copies
      thereof annexed with the written statement or counterclaim and
      that the defendant does not have in its power, possession, control
      or custody, any other documents.
      (10) Save and except for sub-rule (7) (c) (iii), defendant shall not      D
      be allowed to rely on documents, which were in the defendant’s
      power, possession, control or custody and not disclosed along with
      the written statement or counterclaim, save and except by leave
      of Court and such leave shall be granted only upon the defendant
      establishing reasonable cause for non-disclosure along with the           E
      written statement or counterclaim.
      (11) The written statement or counterclaim shall set out details of
      documents in the power, possession, control or custody of the
      plaintiff, which the defendant wishes to rely upon and which have
      not been disclosed with the plaint, and call upon the plaintiff to        F
      produce the same.
      (12) Duty to disclose documents, which have come to the notice
      of a party, shall continue till disposal of the suit.
      Order XI Rule 1 (3) provides that the plaint shall contain a
declaration on oath from the plaintiff that all documents in the power,         G
possession, control or custody of the plaintiff, pertaining to the facts and
circumstances of the proceeding initiated by him have been disclosed
and copies thereof annexed with the plaint, and that the plaintiff does not
have other documents in its power, possession, control or custody. As
per the explanation under Order 11 Rule 1 (3) a declaration on oath
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744            SUPREME COURT REPORTS                           [2021] 7 S.C.R.


A     under this sub-rule shall be contained in the Statement of Truth as set
      out in the Appendix. Appendix I with respect to the statement of truth
      reads as under:-
                                  ‘‘APPENDIX-I
                          STATEMENT OF TRUTH
B
            (Under First Schedule, Order VI-Rule 15A and Order XI- Rule
            3)
            I —— the deponent do hereby solemnly affirm and declare as
            under:
C           1. I am the party in the above suit and competent to swear this
            affidavit.
            2. I am sufficiently conversant with the facts of the case and
            have also examined all relevant documents and records in relation
            thereto.
D
            3. I say that the statements made in ——paragraphs are true to
            my knowledge and statements made in ——paragraphs are based
            on information received which I believe to be correct and
            statements made in —paragraphs are based on legal advice.
            4. I say that there is no false statement or concealment of any
E           material fact, document or record and I have included information
            that is according to me, relevant for the present suit.
            5. I say that all documents in my power, possession, control or
            custody, pertaining to the facts and circumstances of the
            proceedings initiated by me have been disclosed and copies thereof
F           annexed with the plaint, and that I do not have any other documents
            in my power, possession, control or custody. 6. I say that the above-
            mentioned pleading comprises of a total of —— pages, each of
            which has been duly signed by me.
            7. I state that the Annexures hereto are true copies of the
G           documents referred to and relied upon by me.
            8. I say that I am aware that for any false statement or concealment,
            I shall be liable for action taken against me under the law for the
            time being in force.

H
   SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.                                745
                 [M. R. SHAH, J.]

      Place:                                                                    A
      Date:
                                                              DEPONENT
                             VERIFICATION
      I, ………………………. do hereby declare that the statements                       B
      made above are true to my knowledge.
      Verified at [place] on this [date]
                                                          DEPONENT.”.]
       Therefore, the declaration on oath shall be part of the plaint. The      C
plaintiff has to declare on oath that all documents in its/his power,
possession, control or custody, pertaining to the facts and circumstances
of the proceedings, initiated by him/it have been disclosed and the copies
thereof annexed with the plaint, and that he does not have any other
documents in his power, possession, control or custody. Therefore as
                                                                                D
such it is mandated by Order XI Rule 1 for the plaintiff to disclose and
produce all the documents in his power, possession, control or custody,
pertaining to the facts and circumstances of the proceedings.
      7.4      However, the additional documents can be permitted to be
               bought on record with the leave of the court as provided in
               Order XI Rule 1 (4). Order XI Rule 1 (4) provides that in        E
               case of urgent filings, the plaintiff may seek leave to rely
               on additional documents as part of the above declaration
               on oath [as provided under Order 11 Rule 1 (3)] and subject
               to grant of such leave by Court, the plaintiff shall file such
               additional documents in Court, within thirty days of filing      F
               the suit, along with a declaration on oath that the plaintiff
               has produced all documents in its power, possession, control
               or custody, pertaining to the facts and circumstances of the
               proceedings initiated by the plaintiff and that the plaintiff
               does not have any other documents, in its power, possession,
               control or custody.                                              G

      7.5      Order XI Rule 1 (5) further provides that the plaintiff shall
               not be allowed to rely on documents, which were in the
               plaintiff’s power, possession, control or custody and not
               disclosed along with plaint or within the extended period
                                                                                H
746             SUPREME COURT REPORTS                              [2021] 7 S.C.R.


A                   set out above, save and except by leave of Court and such
                    leave shall be granted only upon the plaintiff establishing
                    reasonable cause for non disclosure along with the plaint.
                    Therefore on combined reading of Order XI Rule 1 (4)
                    read with Order XI Rule 1 (5), it emerges that (i) in case of
                    urgent filings the plaintiff may seek leave to rely on additional
B
                    documents; (ii) within thirty days of filing of the suit; (iii)
                    making out a reasonable cause for non disclosure along
                    with plaint.
             7.6    Therefore a further thirty days time is provided to the plaintiff
                    to place on record or file such additional documents in court
C                   and a declaration on oath is required to be filed by the plaintiff
                    as was required as per Order XI Rule 1 (3) if for any
                    reasonable cause for non disclosure along with the plaint,
                    the documents, which were in the plaintiff’s power,
                    possession, control or custody and not disclosed along with
D                   plaint. Therefore plaintiff has to satisfy and establish a
                    reasonable cause for non disclosure along with plaint.
                    However, at the same time, the requirement of establishing
                    the reasonable cause for non disclosure of the documents
                    along with the plaint shall not be applicable if it is averred
                    and it is the case of the plaintiff that those documents have
E                   been found subsequently and in fact were not in the
                    plaintiff’s power, possession, control or custody at the time
                    when the plaint was filed. Therefore Order XI Rule 1 (4)
                    and Order XI Rule 1 (5) applicable to the commercial suit
                    shall be applicable only with respect to the documents which
F                   were in plaintiff’s power, possession, control or custody
                    and not disclosed along with plaint. Therefore, the rigour
                    of establishing the reasonable cause in non disclosure along
                    with plaint may not arise in the case where the additional
                    documents sought to be produced/relied upon are discovered
                    subsequent to the filing of the plaint.
G
             8. Having considered the statutory provisions in detail, the order
      passed by the learned Commercial Court, confirmed by the High Court,
      rejecting the application of the plaintiff for leave to rely on the additional
      documents is required to be tested and considered.

H
SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.                               747
              [M. R. SHAH, J.]

  8.1   It emerges from the record that the first suit was filed by         A
        the plaintiff in the month of October, 2018, bearing TM
        No.236 of 2018, restraining the defendant from infringing
        and passing-off plaintiff’s Trade Marks. That an ex-parte
        interim injunction was passed in favour of the plaintiff by
        order dated 29.10.2018. It appears having realized and found
                                                                            B
        that the earlier suit was not in consonance with the provisions
        of the Commercial Courts Act, the plaintiff withdrew the
        said suit being TM No.236 of 2018 on 27.07.2019 with liberty
        to file a fresh suit as per the Commercial Courts Act, 2015.
        Therefore, the second suit was filed on 31.08.2019 and
        within a period of thirty days from filing of the second suit       C
        the appellant herein – original plaintiff preferred the present
        application seeking leave of the court to file additional
        documents. In the application, it was specifically mentioned
        that so far as the invoices are concerned, the same were
        not in its possession at the time of the filing of the plaint and
                                                                            D
        so far as the other documents are concerned they were not
        filed due to theybeing voluminous. Therefore, so far as the
        invoices sought to be relied on/produced as additional
        documents ought to have been permitted to be relied on/
        produced as it was specifically asserted that they were not
        in his possession at the time of filing of the plaint/suit.         E
  8.2   The submissions on behalf of the defendant that the cause
        shown for non production was an afterthought cannot be
        accepted for the simple reason that the application was filed
        within a period of thirty days from the date of filing of the
        second suit and at the time when the application for interim        F
        injunction under Order XXXIX Rule 1 was not fully heard
        and kept for orders.
  8.3   Even the reason given by the learned Commercial Court
        that the invoices being suspicious and therefore not granting
        leave to produce the said invoices cannot be accepted. At           G
        the stage of granting leave to place on record additional
        documents the court is not required to consider the
        genuineness of the documents/additional documents, the
        stage at which genuineness of the documents to be
        considered during the trial and/or even at the stage of
                                                                            H
748     SUPREME COURT REPORTS                             [2021] 7 S.C.R.


A           deciding the application under Order XXXIX Rule 1 that
            too while considering prima facie case. Therefore, the
            learned Commercial Court ought to have granted leave to
            the plaintiff to rely on/produce the invoices as mentioned in
            the application as additional documents.
B     8.4   Now, so far as the other documents sought to be relied on/
            produced as additional documents other than the invoices
            are concerned the same stands on different footing. It is
            not disputed and in fact it was specifically admitted and so
            stated in the application that those additional documents
            other than the invoices were in their possession but not
C           produced being voluminous and that the suit was filed
            urgently. However, it is to be noted that when the second
            suit was filed, it cannot be said to be urgent filing of the suit
            for injunction, as the first suit was filed in the month of
            October, 2018 and there was an ex-parte ad interim
D           injunction vide order dated 29.10.2018 and thereafter plaintiff
            withdrew the said first suit on 27.07.2019 with liberty to file
            a fresh suit as per the Commercial Courts Act and the
            second suit came to be filed on 31.08.2019 after period of
            one month of the withdrawal of first suit. Therefore the
            case on behalf of the plaintiff that when the second suit
E           was filed, it was urgently filed therefore, the additional
            documents sought to be relied upon other than the invoices
            were not filed as the same were voluminous cannot be
            accepted. And therefore as such Order XI Rule 1 (4) shall
            not be applicable, though the application was filed within
F           thirty days of filing of the second suit. While seeking leave
            of the court to rely on documents, which were in his power,
            possession, control or custody and not disclosed along with
            plaint or within the extended period set out in Order XI
            Rule 1 (4), the plaintiff has to establish the reasonable cause
            for non disclosure along with plaint.
G
      8.5   In view of the facts and circumstances narrated
            hereinabove and in view of the filing of the first suit in the
            month of October, 2018; the ex-parte ad interim injunction
            order in favour of the plaintiff dated 29.10.2018; withdrawal
            of the first suit on 27.07.2019 and subsequently the filing of
H
   SUDHIR KUMAR @ S. BALIYAN v. VINAY KUMAR G.B.                                    749
                 [M. R. SHAH, J.]

              the second suit on 31.08.2019, non filing of the additional           A
              documents other than the invoices on the ground of they
              being voluminous cannot be said to be a reasonable cause
              for non disclosure/filing along with plaint. There was
              sufficient time gap between the filing of the first suit and
              filing of the second suit i.e. approximately 10 months and
                                                                                    B
              therefore when the second suit was filed the plaintiff was
              having sufficient time after filing of the first suit, to file the
              additional documents other than the invoices at the time
              when the second suit was filed. Therefore as such, both
              the courts below have rightly not permitted the plaintiff to
              rely upon the documents, other than the invoices as additional        C
              documents in exercise of the powers under Order XI Rule
              1 (4) read with Order XI Rule 1 (5).
       9. In view of the above and for the reasons stated above, the
plaintiff can be permitted to rely on the documents in the form of invoices
as mentioned in the application as additional documents. However, such              D
production shall not affect the outcome of interim injunction application
submitted under Order XXXIX Rule 1 of the CPC, which as such is
reported to be kept for orders.
       10. In view of the above and for the reasons stated above, the
present appeal is partly allowed. The impugned judgment and order                   E
passed by the High Court confirming the order passed by the learned
Commercial Court dismissing the application submitted by the plaintiff
to rely on/produce the documents mentioned in application dated
13.09.2019, as additional documents is quashed and set aside to the extent
not granting leave to the appellant herein – original plaintiff to rely on/
produce the invoices mentioned in the application dated 13.09.2019 and              F
consequently the leave is granted to the appellant herein – original plaintiff
to produce/rely on the invoices mentioned in the application as additional
documents. Rest of the order not granting leave to appellant herein –
original plaintiff to rely on/produce the documents other than the invoices
as observed hereinabove, as additional evidence is hereby confirmed.                G
The present appeal is accordingly partly allowed to the aforesaid extent.
No costs.


Ankit Gyan                                                 Appeal partly allowed.
                                                                                    H