ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE)

1. Present writ petition under Article 227 of the Constitution of India impugns the order dated 4.12.2018 passed below Exh.1230 in Commercial Trademark Suit No.29 of 2017 by the Commercial Court, Ahmedabad, whereby the learned Court has partly allowed the application of the petitioners directing to mark certain documents as exhibits and rejecting some of the documents as exhibits.

2. The respondent No.1 herein filed Regular Civil Suit No.828 of 2000 against the petitioners herein and the other contesting respondents for infringement of the trademark, copyright and passing off. The said proceedings came to be renumbered as Commercial Trademark Suit No.29 of 2017 and thereby transferred to the Commercial Court. That during the pendency of the suit and at the stage of recording of the evidence of the parties, an application, being Exh.1230, came to be moved on behalf of the petitioners and defendant Nos.2 and 3 praying for marking of certain documents as exhibits in the suit. The said application came to be opposed by the plaintiff- respondent No.1. By the impugned order, the learned Trial Court was pleased to partly allow the said application directing the marking of exhibit numbers to the documents at Mark 54/14, 92/87 to 92/94, 92/96, 92/100, 1189/1 and 1189/8 to 1189/64. The learned Commercial Court rejected the prayer in respect of the documents at Mark 92/268 to 92/270 and 308/97. Aggrieved by the said impugned order, the petitioners have preferred the present Special Civil Application.

3. Learned senior advocate Mr. R.S. Sanjanwala appearing with learned counsel Mr. Manav A. Mehta for the petitioners submits that the impugned order is contrary to the provisions of Section 63 of the Evidence Act. Mr. Sanjanwala submits that the learned Court has failed to consider that the witness of the respondent No.1- plaintiff had admitted the execution of the document bearing Mark 92/268 and original of the said document was also seen physically. Mr. Sanjanwala further submits that the said witness has also recognized the signature of the erstwhile parter of the firm and has admitted that he had signed the said document as witness. He, therefore, submits that in view of such admission in the evidence, the said document was required to be exhibited. Mr. Sanjanwala further submits that the documents bearing Mark 92/268 to 92/270 have material bearing on the outcome of the proceedings and severe prejudice is suffered by the petitioners on refusal to exhibit these documents. He submits that though the learned Court has rejected the same because they cannot be compared with the original, the learned Court ought to have taken into consideration Section 63 of the Evidence Act, which permits such secondary evidence. Mr. Sanjanwala further submits that the learned Court has completely misread the provisions of Section 63(2) of the Evidence Act. He further submits that the learned Court has also not properly appreciated the contentions raised by the petitioners. He submits that it is the specific case of the petitioners that considering the circumstances as existing way back in 1998 and thereafter, having a reason to believe that the said documents would be in the custody of one of the original partners, it was never the specific case of the petitioners that the original documents are in possession of the respondent No.1 and, therefore also, an error has occurred. Mr. Sanjanwala submits that the petitioner No.2 came into possession of some of the original documents, but later on, such certain documents were not produced as they were only true copies and, therefore, the same could not be brought on record. If the petitioners were in the custody of these documents, they would have certainly produced the same on record and got them duly exhibited. However, since they did not have the original copies and they would suffer prejudice, the learned Court ought to have marked all the documents a