Parties must disclose all relevant documents during pleadings in commercial suits; late submissions require reasonable cause and may not be allowed without justification.

JUDGMENT

Jayant Nath, J. (Oral)

IA. No.9890/2020

1. This application is filed by the defendants under Order 11 Rule 1 (10) of the Code of Civil Procedure seeking leave of the court to file additional documents.

2. It is stated that the present suit was filed in the District Court alleging infringement of plaintiffs' design. In view of various grounds and defences taken by the defendants/applicants in the written statement and in view of Section 22 (4) of the DESIGNS ACT , 2000, the suit was transferred to this court on 11.02.2019.

3. It is pleaded that under the scheme of the DESIGNS ACT , a design registration can be obtained for new or original features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article. It is stated that in the plaint the plaintiffs have nowhere stated what exactly is the novelty claimed in respect of design Nos.262661 & 252225. All that is stated is "The product using design No.262661 being octagonal in shape is unique".

4. It is pleaded in the written statement that plaintiff's design Nos.262661 & 252225 are not novel and have been published prior to in the industry.

5. Hence, it is pleaded that via the present application the defendants/applicants wish to place on record various documents exhibiting prior publications in reference to impugned design Nos.262661 & 252225. It is further stated that recently the counsel for defendants stumbled upon the judgment of this Court in M/s Crocs Inc. USA vs. Bata India Ltd & Ors., (2019) 78 PTC 1, where he came across the existence of "WayBack Machine", which is an internet archive i.e. a non-profit library of millions of free books, movies, software, etc. This website provides screen shots of web pages which could be searched for on the web archive. The search was started for prior publication of water purifiers with `novel' features, as has been claimed by the plaintiffs in respect of two registered design Nos.262661 & 252225 and the defendant came across various web pages advertising water purifiers, prior to the date of registration of plaintiff's designs. It is pleaded that it has become imperative to place these documents on record which have now been discovered on the web to strengthen its objection of prior publication already stated in the written statement. It is pleaded that these documents are necessary to show that the `novel' features claimed by the plaintiffs existed in public domain and the same were available to the public prior to the date of registration of the plaintiffs' said designs. Hence, the present application.

6. In the reply, the plaintiffs have stated that the plea taken by the defendant that he was unaware of the website "WayBack Machine" is not a ground in law to sustain the present application. The said website has been in existence since 1995. It is urged that after filing of the written statement in October, 2018, the learned counsel for the defendants has changed and it is clear that the filing of the additional documents is nothing but an afterthought and a device of indirect improvement of the written statement, and there is no subsequent development. It is stated that a vague plea was raised by the defendants in the written statement that the plaintiffs' designs were pre-published and covered by prior art but no specific prior art was produced. The plea remained unsubstantiated. The matter has now reached the stage of evidence and the defendants have realised that their case is weak. Through the present application the defendants are merely trying to improve their case by introducing documents which were always available to them. It is further stated that t