Rajiv Sahai Endlaw, J.
IA No. 6930/2007 (of plaintiffs for summoning of record)
1. The evidence of the plaintiffs stands concluded.
2. This application has become infructuous and be not shown in the Cause List.
IA No. 3380/2016 (of D-4&5 u/O 11 R-1(10) CPC for filing additional documents)
3. The counsel for the defendants No. 4&5.applicants and the counsel for the plaintiffs/non-applicants have been heard.
4. It transpires (i) that the present suit was instituted as far back as in 1993 though was re-numbered in 2004; (ii) that the suit is to restrain the use of the trademark ‘MAGGI’ in relation to mixers, grinders and juicers and for ancillary reliefs; (iii) that the suit as originally instituted was against the defendants No. 1&2 who were manufacturing the goods under the said trademark and the defendant No. 3 was stated to be the dealer of the defendants No. 1&2 at Delhi; (iv) that the defendant No. 3 has not contested the suit and is ex-parte; (v) that the defendants No. 1&2 have now assigned the trademark to the defendants No. 4&5 who were subsequently impleaded in this suit and the defendants No. 1&2 also are now not appearing; (vi) that there is no formal order proceeding ex-parte against defendants No. 1&2 as yet; (vii) that the issues were framed in the suit on 8th December, 2000 and additional issues were framed on 28 July, 2005; (viii) that there is no interim order in favour of the plaintiffs because on 20 February, 2001, the counsel for the plaintiffs stated that if the trial is expedited he is not pressing for interim orders; (ix) that though the counsel for the defendants No. 4&5 furnished advance copy of affidavit by way of examination-in-chief of the defendant No. 4 to the counsel for the plaintiffs along with documents which were not filed earlier but now after the evidence of the plaintiffs stood concluded on 5 November, 2015 and the stage for evidence of the defendants No. 4&5 was reached, it transpired that the said affidavit by way of examination-in-chief of the defendant No. 4 is not on record; (x) that the defendants No. 4&5 were however permitted to file a fresh affidavit by way of evidence of the defendant No. 4; (xi) that the defendants No. 4&5 have along with the fresh affidavit, besides the documents which were filed along with the earlier affidavit, have filed a large number of additional documents; (xii) that the said additional documents are to show user of the trademark in relation to mixers and grinders since 1982 and inter alia comprise of legal notices, replies thereto and advertisements in newspapers; (xiii) that the suit is a commercial suit within the meaning of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Commercial Courts Act).
5. The counsel for the defendants No. 4&5 states that the defendants No. 4&5 dispute that the defendant No. 3 was the dealer of the defendants No. 1&2.
6. The counsel for the plaintiff does not admit the genuineness of the additional documents filed by the defendants No. 4&5.
7. On enquiry, as to whether the legal notices and replies are also disputed, it is stated that the legal notices are not to the defendants No. 1&2 or defendants No. 4&5 but to some other entity.
8. The counsel for the defendants No. 4&5 states that the said other entity was the proprietary concern of the defendant No. 4.
9. I have in the light of aforesaid facts judged the justifiability of allowing the additional documents on record and permitting the same to be proved.
10. Though Courts have undoubtedly been liberal in past in allowing documents to be filed, even at a late stage, beyond the stage prescribed in law for filing thereof, but I am of the view that the said view needs to be changed specially in the light of the coming into force of the Commercial Courts Act, the whole purport whereof is to expedite the disposal of such suits and when certain edge has been given to the said suits in the manner of disposal thereof and which differentiation and advantage, if the said suits were not to be treated differently or did not form a distinct class, would be held to be arbitrary and discriminatory. A litigant with a claim which would not classify as a commercial dispute would certainly then be entitled to contend that no priority should be given to commercial suits as is purported to be done under the Commercial Courts Act.
11. The principle which prevailed with the Courts earlier, for allowing documents even at the late stage viz. of the litigant should not suffer for the fault of his advocate or for being not advised to file documents at the correct stage and which principle had evolved in the context of mofussil jurisdiction, where the litigants were uneducated and not aware of their rights, cannot certainly be applied to suits of commercial men and commercial concerns who do not suffer from any such handicap.
12. Applying the said reasoning and finding the suit to be of 1993 vintage and not finding any justification for the defendants No. 4&5 to file documents at this stage and yet further finding that allowing such additional documents to be taken on record would endlessly delay the trial, inasmuch as an opportunity will then also have to be given for proof of the said documents and which proof would entail examination of a number of witnesses, I am not inclined to allow the additional documents to be taken on record.
13. The application is dismissed.
14. It is however clarified that the defendants No. 4&5 shall be entitled to prove only the documents which were filed along with the affidavit of which advance copy was given to the counsel for the plaintiffs on 6 September, 2001, even though such documents also had not been filed at an appropriate earlier stage.
IA No. 8395/2016 (of D-4&5 for summoning the witnesses)
15. Allowed; the defendants No. 4&5 are permitted to summon such of the witnesses who are to prove the documents qua which the evidence has been confined and not the witnesses who were required to prove the documents which have not been permitted to be taken on record.
16. The application is disposed of.
CS(COMM) 587/2016
17. The date of 5 August, 2016 before the Joint Registrar is cancelled.
18. Court Commissioner is stated to have been appointed to record the evidence of the parties.
19. The parties to, with prior appointment, appear before the Court Commissioner on 10 August, 2016.
20. The Court Commissioner to endeavour to expedite the recording of the evidence.