The main legal point established in the judgment is that under Order XI Rule 5 of the CPC, additional documents may be permitted to be filed if they are relevant for the adjudication of the case and not contrary to the pleadings, and if they are filed in response to a case set up by the defendants after filing of the plaint.

JUDGMENT :

AMIT BANSAL, J.

I.A. 1464/2018 (O-XI R-5 of the CPC)

1. The present application has been filed on behalf of the plaintiff under Order XI Rule 5 of the Code of Civil Procedure, 1908 (CPC) as applicable to commercial suits under the Commercial Courts Act, 2015 for placing on record additional documents.

2. Reply has been filed on behalf of the defendants opposing the present application. Rejoinder thereto, has been filed on behalf of the plaintiff.

3. It is the case of the plaintiff that the aforesaid additional documents were filed by the plaintiff on 17th October, 2017 on the same date as the replication. Counsel for the plaintiff submits that the filing of the aforesaid documents was necessitated on account of the statement made on behalf of the defendants, as noted in the order dated 26th September, 2017, that the defendant no.1 was not in existence at the time of the filing of the present suit and some of the additional documents sought to be filed are to demonstrate that the defendant no.1 was in existence at the time of filing of the present suit.

4. Yet another justification given on behalf of the plaintiff for filing additional documents is to demonstrate the contrary stands taken by the defendants in their written statements and in the replies to the examination reports of the Registry. It is stated that in the written statements the defendants have taken a stand that the trademarks/taglines, which are the subject matter of the present suit are descriptive and generic in nature. However, in various replies to the examination reports of the Registry, the defendants have taken a contrary stand. Therefore, it is necessary to place the aforesaid documents on record. Reliance is placed on Order XI Rule (1) (c)(ii) of the CPC.

5. Per contra, senior counsel appearing on behalf of the defendants submits that since the defendant no.1 has already been deleted from the array of parties, the documents with regard to the defendant no.1 are no longer relevant in the present suit. It is further submitted that there is no contradiction in the stand taken by the defendants before the Trade Mark Registry and the written statement filed in the present suit. It is also contended that the documents now sought to be filed were in the power, possession, control and custody of the plaintiff at the time of filing of the present suit and therefore, ought to have been filed along with the suit. Reliance is being placed on the judgment of the Supreme Court in Sudhir Kumar v. Vinay Kumar, 2021 SCC OnLine SC 734 and the judgment of a Co-ordinate Bench of this Court in Nitin Gupta v. Taxmaco Infrastructure & Holding Ltd., 2019 SCC OnLine Del 8367.

6. I have heard the counsel for the parties.

7. A perusal of the additional documents sought to be placed on record by the plaintiff would show that the said documents are the examination reports of the Registry and the responses thereto by the defendants. All the aforesaid documents pertain to the defendants. Attention of the Court has been drawn by the counsel for the plaintiff to paragraph 18 of the written statement filed by the defendant no.2, where a specific stand has been taken by the defendants that the trademark/taglines, which are the subject matter of the present suit are descriptive in nature. The aforesaid contention has been rebutted by the plaintiff in its replication. In order to meet the aforesaid contention of the defendants, the plaintiff seeks to place on record the aforesaid documents to show that in their replies to the examination reports, the defendants have claimed the trademark to be distinctive. The aforesaid documents are covered within the ambit of sub-rule (1)(c)(ii) of Rule (1) of Order XI of the CPC in terms of which the plaintiff would be entitled to file the documents in response to a case set up by the defendants after filing of the plaint. Therefore, there is no merit in the submission of the defendants that the aforesaid documents were available in public domain and