Delhi District Court
Anand Kumar Deepak Kumar & Ors vs Haldiram Bhujiawala & Ors on 10 June, 2013
1
IN THE COURT OF SHRI MUKESH KUMAR GUPTA:
ADDITIONAL DISTRICT JUDGE06: CENTRAL: DELHI
TM No. 02/11/1992
U.I.D No. 02401C0874872003
Anand Kumar Deepak Kumar & Ors.
Vs.
Haldiram Bhujiawala & Ors.
Appearance : Sh. Amarjeet Singh & Sh. Mahender Rana, Advocates, Ld. Counsels
for the plaintiffs.
Sh. C. Mukund, Sh. Rajesh Mahendru & Sh. Amit Kasera, Advocates,
Ld. Counsels for the defendants.
O R D E R :
1. By way of present common order, I shall conscientiously decide two applications moved by the plaintiff seeking directions. While the first application is under order XVI Rule 1 and 6 read with section 151 CPC dated 11.04.2012 seeking an amendment in the list of witnesses filed on record and further seeking a permission to produce/summon the witnesses so mentioned in the list of witnesses for complete and effective adjudication of the controversy in the suit, the second application is an application for summoning of witnesses dated 09.05.2012, though the same do not mention any provision of law but the same ought to have been filed under order XVI Rule 1 (2) CPC for summoning the witnesses for trial.
2. Shorn of unnecessary details, the facts relevant for the disposal of the instant applications are that the parties to TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 1/28 2 the suit are either lineal decedent of one Shri Ganga Bishan Aggarwal @ Haldi Ram or their respective business enterprises. The plaintiffs who claims to be one of the branch of the aforesaid Shri Ganga Bishan led by his son Shri Mool Chand have filed the instant suit for infringement & passing off besides damages in the year 1991 against the defendants who are successorininterest of the other branch led by his other Shri Rameshwar Lal. In the suit the plaintiffs have claimed infringement of their registered trade mark 285062 Haldi Ram Bhujia WalaHRB with V logo by the defendants and have accordingly claimed protection of their statutory rights under the Trade and Merchandise Marks Act, 1958, besides claiming protection of their common law rights of passing off on account of prior adoption and user. The plaintiffs have further claimed damages to the tune of Rs. 6,00,000/. The foundation of the rights claimed by the plaintiffs in the aforesaid trade mark is the alleged deed of dissolution dated 16.11.1974 of firm M/s. Chand Mal Ganga Bishan whereby which the proprietary right in the trade mark is stated to have been assigned to Sh. Mool Chand for the entire country except the state of West Bengal which has been given to Sh. Rameshwar Lal of the other branch. Alongwith the this dissolution deed, a declaration of Sh. Rameshwar Lal of the same date has also been made the basis of the claim.
3. This claim was refuted by the defendants by setting up an independent right by virtue of a identical registered trade mark 330375. The deed of dissolution dated 16.11.1974 was TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 2/28 3 initially admitted to be executed by Smt. Kamla Devi wife of Shri Rameshwar Lal of the second branch 'out of courtesy and respect' which stand was later changed to 'undue influence' of her fatherinlaw Shri Ganga Bishan and brotherinlaw Mool Chand in the first amended Written Statement. It so happened that later in the year 1999 even the execution of dissolution deed dated 16.11.1974 was sought to be denied by the defendants by trying to bring in the plea of forgery in the subsequently sought amendment.
4. The litigation proliferated beyond imagination and both sides approached the Hon'ble Delhi High Court and the Hon'ble Supreme Court on a number of occasions, besides taking the litigation to other High Courts, intellectual property forums and even the trial courts at Delhi and beyond.
5. The Hon'ble Supreme Court of India vide its order dated 01.10.2008 while directed an expeditious disposal of the instant suit, at the same time the pleadings and the plea regarding forgery of the dissolution deed dated 16.11.1974 was directed to be kept in a separate file and a trial was directed to be conducted on the basis of plea of coercion (read undue influence) with a liberty to the defendants to raise the plea of forgery at appropriate stage.
6. Sixteen (16) issues were settled for adjudication in this matter for the first time on 08.09.2008 out of which issues No.6 and 7 were recasted in the wake of order dated 01.10.2008 of the TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 3/28 4 Hon'ble Supreme Court (deleting the plea of forgery) referred to above. Five (5) additional issues were framed by Ld. Predecessor of this court on 14.11.2008.
7. Vide order dated 06.09.2010 the Hon'ble Supreme Court while redirecting an expeditious trial as expeditiously as possible also directed that the evidence to be recorded by an Advocate Commissioner on day today basis with an assurance from the parties not to seek adjournment on any grounds. The Hon'ble Apex Court order is reproduced being pertinent :
Permission to file SLP is dismissed in CC No. 12352/2010.
The Special Leave Petition is dismissed. However, we request the Trial Court to dispose of the suit as expeditiously as possible and at any rate within six months from today. The Trial Court shall appoint an Advocate Commissioner to record the evidence of the parties on day to day basis. The parties have assured us that they will not seek any adjournments on whatsoever grounds. The recording of evidence shall go on day to day basis.
8. In compliance of the aforesaid order, Ld. Predecessor of this court vide order dated 19.08.2011 appointed Sh. Vikas Kakkar, Advocate, as an Advocate Commissioner to record evidence of the witnesses in the court room itself from 2 PM to 5 PM at least 3 days in a week as per convenience of counsels for the parties. PW1 Manohar Lal was examined and partly cross examined before the court by that time. The Ld. Advocate Commissioner then took up the task of recording evidence in the court room itself and the defendants TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 4/28 5 continued to cross examine PW1 for about 100 sessions, running into hundreds of pages which was finally concluded in January 2013.
9. In between developments have taken place in the suit regarding application under order XXXIX Rule 1 & 2 CPC of the plaintiffs being disposed off, review preferred and dismissed and the parties are now litigating before the Hon'ble High Court of Delhi in appeal on day to day basis. A parallel development has also taken place before the Intellectual Property Appellate Board (IPAB) which has allowed the rectification application of the plaintiffs thereby scoring off defendants' registered mark 330375 from the Register vide order dated 26.04.2013.
10.The instant applications have been moved by the plaintiffs, in between, as referred earlier.
11.Now taking up the applications under disposal one by one. While in the first application, the plaintiffs have mentioned that issues in this matter were settled for the first time on 08.09.2008 and were recasted on 04.11.2008. It has been stated that additional issues were being framed on 14.11.2008. The plaintiffs have stated that they have already filed list of witnesses whom they proposed to call either to give evidence or produce documents for the purpose of proving the case of the plaintiff. It has been further stated that on account of bonafide omission, mistake, lapse and inadvertence, one witness namely the Officer Incharge TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 5/28 6 District Stamp Collector, office of Collectorate Bikaner, who was required to bring the register of stamps for the year 1974 containing entries no. 10090 to 10092 dated 16.11.1974 regarding to firm M/s. Shiv Ratan/Kamal Kumar, Bikaner and M/s. Chand Mal Ganga Bishan, Bikaner to evidence the fact regarding to the purchase of the stamp paper on 16.11.1974 by Sh. Manohar Lal Aggarwal for the purpose of proving the execution of deed of dissolution dated 16.11.1974 in respect of the firm M/s. Chand Mal Ganga Bishan has been omitted to be mentioned. It has been further stated that even during cross examination of PW1 on 10.11.2009 the factum of the aforesaid stamp paper being purchased on 16.11.1974 was given as a suggestion by Ld. Counsel for defendant wherein even PW1 has sought to bring on record the certified copy of the aforesaid register of the stamp vendor which was objected to by counsel for defendant Sh. Rajesh Mahendru. It has been further stated that these entries are required to be brought on record to show the factum of purchase of the stamp papers on 16.11.1974 by Sh. Manohar Lal Aggarwal on which the dissolution deed dated 16.11.1974 was prepared and since the aforesaid deed of dissolution dated 16.11.1974 in respect of the firm M/s. Chand Mal Ganga Bishan is the main bone of the contention between the parties, the same is required to be proved and as such calling of such witnesses shall be necessary for just and fair adjudication of the issues more particularly issues no. 5 to 7. It has been further stated that even otherwise, the witness is a Government witness and no prejudice shall be caused to the defendant in any manner whatsoever as the summoned record is Governmental TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 6/28 7 record which eliminates and dispels any element of fabrication and surprise. The plaintiffs have further brought to the notice of the court by way of application that one of the witness Sh. Radhey Shyam Agarwal mentioned at Serial No. 25 in the list of witnesses dated 12.11.2008 has already expired and the same needs to be deleted from the list of witnesses.
12.In so far as, the second application of the plaintiff is concerned, the same is an application for issuance of summons in respect of some of the witnesses already mentioned in the list of witnesses. It has been stated that for the purpose of trial and due observance and the orders passed by Hon'ble Apex Court on two occasions, the plaintiffs seek indulgence or liberty of the court for issuance of summons in respect of the witnesses mentioned in the application.
13.Both these applications have been vehemently resisted by defendants by filing detailed replies thereby raising preliminary submissions regarding the very maintainability of the applications. While the defendants have resisted the first application stating the same to be an attempt of the plaintiffs to delay and delay the trial quite contrary to the orders dated 01.10.2008 of the Hon'ble Supreme Court, it has also been resisted on the ground of abnormal delays and latches. A stand has also been taken by the defendants that by bringing the first application, the plaintiffs are trying to proving the defendants plea qua forgery of alleged TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 7/28 8 dissolution deed dated 16.11.1974 and as such the witnesses is so sought to be summoned are not at all necessary and relevant to the issues and the application is stated to be misconceived. The defendants have further stated that the application under reply is otherwise a brazen attempt to cover up short comings and lacunae which stands admitted during cross examination of PW1. The defendants have raised allegations regarding plaintiff's dishonesty to be exposed into totality and the conduct whereof is required to be considered. The defendants have further stated that summoning of witnesses and proving the factum regarding the stamp paper on 16.11.1974 is not germane to issue no 5 & 7 and calling of witnesses has been made with a sole endeavour to delay the examination of plaintiff's witnesses. The defendants have even gone on comparing by way of a table between issues framed on 08.09.2008 and 04.11.2008. The defendants have denied the alleged bonafide omission, mistake, lapse, act of inadvertence and escape of notice in filing list of witnesses before this court. It has been stated that these phrases have been used in casual manner without reference/context in the submissions made and without any application of mind. It has been reiterated that mentioning of cross examination of PW1 of 10.11.2009 itself shows an attempt of the plaintiffs to cover up the lacuna. The defendants are further stated that even earlier an attempt to do so was rejected by the Ld. Predecessor of this court on 08.09.2008, 22.12.2008 both of which orders have attained finality and the same have not been challenged before any court of law. The defendants have prayed for dismissal of the TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 8/28 9 application with exemplary costs with other orders/reliefs being passed by the court as being fit and proper.
14.In so far as, the reply to the second application of summoning under order 16 Rule 1 (2) CPC is concerned, the defendants have stated that application has become infructuous as the plaintiffs wanted the witnesses to be summoned with purported documents for the purpose of cross examination of PW1 which has already been concluded. It has been further stated that the application was never pressed upon till 07.12.2012 despite being filed on 09.05.2012. The defendants are further stated that vide order dated 22.12.2008 as passed by Ld. Predecessor of this court the purported summoning of various witnesses have been rejected by giving valid reasons and grounds. It has been further stated that the plaintiffs have moved an applications wrongfully, illegally with malafide intention and ulterior motive to delay the trial and final hearing of the suit in completely ignoring the specific directions of the Hon'ble Supreme Court on 01.10.2008 and 05.12.2011. The defendants have prayed for dismissal of the second application also.
15.I have heard Ld. Counsel for the parties and perused the entire voluminous record running into thousands of pages. I have carefully considered the same.
16.First & foremost, it is pertinent to point out that section 30 and 31, more particularly section 30 sub section (b) TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 9/28 10 empowers a court to issue summons to any person whose attendance is required either to give evidence or produce documents, at any time either of its own motion or on application of a party to the suit. Further order XVI of CPC deals with Summoning and Attendance of Witnesses. Rule (1) Sub Rule (1) provides that the parties are required to present a list of witnesses before commencement of trial or on such date as the court may appoint but not later than 15 days after settlement of issues. Sub Rule (2) provides that summons can be obtained by any party desirous of summoning the witnesses by making an application stating therein the purpose for which the witness is proposed to be summoned. Sub Rule (3) provides that the court may permit any party to either call, or summon the witness through court process, other than those named in the list of witnesses provided the party show a sufficient cause for omission to mention the name of such witnesses in the said list. Similarly Rule 1A prescribes that a witness can be brought to give evidence or produce documents by any party without applying for summons. In short, three things culled out from the aforesaid rule :
i). that a list of witnesses is required to be filed before commencement of trial and on such date as the court may appoint.
ii). The party can either produce a witness or cause its production by making an application before the court for the purpose of issuance of summons.
iii). The court for sufficient reasons permit any party to summon any witness or call any witness without summons, TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 10/28 11 in case the same has been omitted to be mentioned in the list at first instance.
iv). The court may do so either on its own motion or on application of a party.
17.It is a settled preposition of law laid down in the catena of judgments that the witnesses evidence required to be summoned should be relevant for just and fair adjudication of the case. It has been held by the Hon'ble Apex Court that ordinarily an application for evidence should not be normally struck off unless the conduct of the party is grossly negligent and there are serious latches on its part. It has been further held that merely because a witness has not been mentioned in the list at first instance does not mean that the witness cannot or should not be allowed to examine at all, since Rule 1 (3) empowers a court for reasons to be recorded to permit any witness not mentioned in the list, to be examined. Reliance placed on AIR 1989 P & H 226 titled Preet Cold Storage Vs. UCO Bank.
18.Ld. Counsel for plaintiffs Sh. Rana, during the course of arguments has vehemently argued that to summon any witness subject to leave of the court is an indefeasible right conferred on any party to the suit under CPC and the court cannot get into the process of examining relevance and admissibility of the document prior to stage of the document being produced and witness being summoned. It has been stated that court should not sit on pre judging the relevance and on admissibility of the document at first instance. He TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 11/28 12 has relied upon the pronouncement of law laid down in 1974 RLR 466 titled Murari Lal Vs. Nem Chand to augment his argument. He has further vehemently argued that obtaining a summon for witness is a matter of right and the relevance of the witness cannot be examined by the court at the stage of summoning application. He has relied upon vol. 2 (1987) DMC 79 titled Aruna Batra Vs. Jai Dev Batra. It has been further sought to be vehemently argued that the list of witnesses has been filed by the plaintiff as early as 12.11.2008 immediately after the issues were recasted on 04.11.2008 and the plaintiffs have all the right to summon the witnesses during trial and there is absolutely no reason why a legally sustainable prayer & right of the plaintiff is refused. Vehement arguments have been raised to point out that circumstances have changed since settlement of issues viz Admission denial of documents have taken place on 28.04.2009, additional affidavit of PW1 Manohar Lal has been taken on record vide a reasoned order of Ld. Predecessor on 25.08.2009 and various other orders have been passed by the Hon'ble High Court and even Hon'ble Apex Court necessitating the amendment in the list of witnesses and obtaining summons for the purpose of an expeditious trial, as directed by the Hon'ble Apex Court as more than one occasions and reiterated by Hon'ble Delhi High Court many times. Without prejudice to the aforesaid, it has been vehemently argued that there has been bonafide lapse & inadvertence on behalf of plaintiff occasioned by counsels due to a number of litigations being pending amongst plaintiff and defendants in various courts and forums and TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 12/28 13 plaintiff should not be made to suffer for inadvertence of the counsel.
19.Ld. Counsel for the defendants Sh. Mukund assisted by Shri Mahendru have with all the force at their command have argued that application can't be considered at all since the entire list of witnesses stands rejected by Ld. Predecessor of this court vide order dated 22.12.2008 which has not been appealed from and has attained finality. They have further vehemently agreed that similar requests of the plaintiff was earlier rejected by Ld. Predecessor of the court on 08.09.2008. It has been further sought to be argued that there are absolutely no change in circumstances calling for exercise of jurisdiction under order XVI CPC. Ground of res judicata in the wake of order dated 22.12.2008 and even other orders passed by Ld. Predecessor of this court has also been taken. It has also been stated that the order dated 22.12.2008 was not an interlocutory order but was conclusive. The order of the Hon'ble apex court dated 01.10.2008 has also been vehemently relied upon by the Ld. Counsels for defendants thereby arguing that the same only granted a liberty to the defendants to produce material in their possession to buttress the plea of forgery and did not grant anything extra to the plaintiffs to summon witnesses for trial.
20.Ld. counsel for defendants have even gone on the issue of relevance of witnesses by pointing out certain portions of the examinationinchief affidavit of PW1 Manohar Lal and stating that the documents now sought to be brought by way of witnesses so summoned have already been exhibited, TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 13/28 14 needs no further summoning and examination of witnesses. One of the additional argument taken is that once the examination and crossexamination of PW1 Manohar Lal has been concluded in January, 2013, the application has become infructuous.
21.Ld. counsel Shri Mukund further during oral arguments has tried to point out to the conduct of the plaintiffs to delay the trial by moving frivilous applications very vehemently putting forward the earlier orders passed by Ld. Predecessor of this court on 22.02.2009 on application under Order 7 Rule 14 of CPC. It has been vehemently argued that once filing of documents stands rejected by the earlier orders of the ld. Pre decessor, plaintiff cannot summon the witnesses now at this stage. Lastly, one argument of ld. Counsel Sh. Mukund for defendants has been that the additional witnesses sought to be summoned may be required for the purpose of proving the plea of forgery which stands kept in a separate file under orders of the Hon'ble Apex Court dated 01.10.2008 and accordingly court is required to pass appropriate orders for the same.
22.Still further another major arguments of the Ld. Counsel for defendants has been that the factum of dissolution deed dated 16.11.1974 being not proved on record the plaintiffs are trying to lead secondary evidence for the same despite having a Section 65 Indian Evidence Act application earlier dismissed and without obtaining leave of the court by TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 14/28 15 moving an application now as required under section 65 of Evidence Act.
23. Other oral arguments have also been addressed by Ld. Counsels for quite sometime. Ld. Counsel for the defendants has relied upon the pronouncements of law laid down in AIR 2006 MP 68 titled Ram Vishal Vs. Dwarka Prasad Jaiswal to say that certified copy of the public document could have been obtained and filed by the plaintiff, besides relying upon 152(2008) DLT 498 K.K. Manchanda Vs. S. D. Technical Services to put forth that every document is not an evidence and documents can only be proved by the author.
24.The court shall deal with these contentions by crystallizing the arguments of the parties in the forthcoming paragraphs.
25. First and foremost it is pertinent to discuss the powers of court and rights of a party to the suit to bring witnesses or cause its appearance through the process of the court. An additional and complementary aspect to this shall be whether a witness not named in the list of witnesses filed initially can be summoned by the court later. In this regard as already discussed Section 30 and 31 more particularly Section 30 (b) read with order XVI of CPC empowers a court to issue summon to any person, to be called as witness either to give evidence or to produce document at any time, either on its own motion or on the application of either party, TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 15/28 16 subject to the procedure prescribed under order XVI of CPC, and there can be no dispute about the same. The question is whether a party to the suit can obtain the summons of a witness from a court. This is fully answered by judgment of our own Hon'ble High Court in 1974 Rajdhani Law Reporter (Abridged) 466 titled Murari Lal Vs. Nem Chand Jain where in a similarly circumstances case, Hon'ble High Court has held :
"....Order 16 of the Code prescribes the limitations..... "At any time after the suit is instituted, the parties may obtain, on an application to the Court the summons to persons whose attendance is required either to give evidence or to produce documents. Subject to the provisions of the Order and the Code, it is the right of a party to obtain the assistance of the Court by issuance of summons to his witnesses at any time after the suit has been instituted. .....the right of a party to a civil suit under Order 16 Rule 1 of the Code of Civil Procedure to obtain summons to the persons whose attendance was required either to give evidence or to produce documents on making an application to the Court for that purpose any time after the suit.......refusal to allow summons amount to refusal to exercise jurisdiction vested by law...."
The Hon'ble Justice B.C. Mishra has concluded holding :
"....My conclusion is that under the code, either party to a suit is entitled to the assistance of the Court by issuance of the process, in accordance with the rules and practice of the Court for the presence of his witnesses for giving oral TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 16/28 17 testimony or producing documents at any stage of the suit whatsoever after it has been instituted. The Court is legally bound to grant the application of the party for such purpose...."
Thus the court need not dwell into this aspect further.
26.The additional aspect as to whether a witness not named in the list of witnesses can also be summoned by a party has also been discussed by the Hon'ble Superior courts in II (1987) DMC 79 titled Dr.(Mrs.) Aruna Batra Vs. Jaidev Batra where it has been held that even if name of a witness is not mentioned in the initial list of witness filed on record, the witness can be summoned at the instance of a party provided partly satisfies the court about reasons for earlier omission and purpose for which the witness is called. The Hon'ble Apex court in (1983) 4 SCC 36 titled Mange Ram vs. Brij Mohan has succinctly held that court has a wide jurisdiction under sub rule (3) of Rule 1 of order XVI to summon a witness whose name has not been included in the list of witnesses. The Hon'ble Court has gone to the extent to stating that the court has even no jurisdiction to decline such examinations. It has observed :
"...Court has no jurisdiction to refuse to examine those witnesses on ground of non mention of names and gist of evidence of such witnesses..."
The Hon'ble Court has further held :
"...Where the party wants the assistance... the party to file the list with the gist of evidence... Witnesses without the assistance of the Court... such witness is mentioned in the list or not and the Court TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 17/28 18 has no jurisdiction to decline to examine such witnesses .... Subrule (3) of Rule 1 confers a wider jurisdiction on the court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1A and in such a situation the party of necessity has to seek the assistance of the court under sub rule (3) to procure the presence of the witness. (para 10)...."
27.Similar voice was echoed by the Hon'ble Supreme Court in (1999) 3 SCC 573 titled Vidhyadhar Vs. Manikrao where the Hon'ble Court has reiterated the powers of the court under order XVI Rule 1(3) to summon a witness not named in the list of witnesses.
No judgment to the contrary has been brought to the notice of the court and as such the court is of the considered opinion that witness not named in the list of witness filed on 12.11.2008 can also be summoned by the plaintiffs, by moving to the court for the same.
28.Now adverting to the issue of relevance of the witness not included in the list (first application) and mentioned in the list (second application). Vehement arguments have been raised in the form of objections to the aspect of relevance, by Ld. Counsels for the defendants. In this regard, it may seen at the outset that the witness sought to be included and summoned in the first application is stamp vendor from the office of Officer Incharge, District Stamp Collector, Collectorate, Bikaner and document sought to be produced is TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 18/28 19 relevant entries of register containing serial no.10090 to 10092 dated 16.11.1974 to show that Shri Manohar Lal Aggarwal bought the stamp paper on which the alleged dissolution deed dated 16.11.1974 of firm M/s Chand Mal Ganga Bishan was scribed. Now in so far as its relevance is concerned, the entire controversy between the parties is that deed of dissolution dated 16.11.1974 of firm M/s Chand Mal Ganga Bishan on the basis of which the plaintiff has claimed right to the Trade Mark Haldiram BhujiawalaHRB with V logo of having assigned to Shri Mool Chand of first branch. Kamla Devi wife of Shri Rameshwar Lal of second branch was allegedly a party to it. Now this is refuted by the defendants who have taken a stand that the firm never stood dissolved on 16.11.1974, the deed never acted upon, the same being signed under undue influence and it was a forged and fabricated document. Thus this deed of dissolution dated 16.11.1974 is the main bone of contention between the party in the present list. Even the Hon'ble Apex Court in its order dated 01.10.2008 has placed the onus (burden to prove) the same on the plaintiffs by holding :
"....At the stage of trial, the burden would be on the respondent herein to prove the execution and the contents of the document namely, deed of dissolution, dated 16.11.1974. Proving of the document involves proving of execution of the document as well as proving of its contents (see AIR 1983 Bombay 1). At the stage of proving the execution of the document, it would be open to the appellants herein to cross examine the witness on the question of execution as well as its content..."
TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 19/28 20
29.This burden to prove both execution and contents is onerous and the plaintiffs cannot be denied opportunity to discharge the same merely on the ground that the name of the stamp vendor on which the document was prepared could not be mentioned in the initial list of witnesses dated 12.11.2008.
30.Ld. Counsel for the defendants has raised two fold argument on this one is that the witness relates to execution of document and not its contents and secondly the factum of original dissolution deed dated 16.11.1974 being lost has not been established so far during testimony of PW1 "in chief"
plaintiffs cannot be allowed to use the cross examination of the defendants to their advantage by taking steps for summoning witnesses of execution. Now both these arguments do not stand the rigours of law or the facts. It is a fact that the trial has already commenced and evidence of PW1 has also been concluded, It is also a fact that execution as well as contents of the dissolution deed are to be proved by the plaintiffs as per order dated 01.10.2008 of the Hon'ble Supreme Court. Now whether the factum of loss of dissolution deed dated 16.11.1974 has come "in chief examination" or 'cross examination' of PW1, the fact is that the deed of dissolution dated 16.11.1974 which is the main bond of contentions in the instant suit is not placed on record in original. The same is required to be proved by plaintiffs as mandated by Hon'ble Apex Court in order dated 01.10.2008 and the same is required to proved by the plaintiff either by primary evidence or by leading secondary evidence in terms of Section 65 of Indian Evidence Act.
TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 20/28 21
31.Now ld. Counsel for the defendants have also led vehement arguments hat an earlier application of the plaintiffs for leading secondary evidence stood rejected and the plaintiffs cannot be now be allowed to lead secondary evidence without moving an application under Section 65 of Indian Evidence Act. Now in this regard also law has also been settled by our own Hon'ble High Court. Hon'ble Mr. Justice R.S.Endlaw in a celebrated judgments reported as MANU/DE/2860/2009 titled Shri Prem Chand Jain vs. Shri Sri Ram (deceased) wherein the Hon'ble Court while dealing with issue regarding moving application under section 65 of Evidence Act seeking permission to adduce secondary evidence has been dealt with. The Hon'ble court while deprecating the practice of moving application under section 65 of Evidence Act has held that there is no legal sanction for seeking such permission and the court can only form opinion after evidence is led in primary or by secondly form, for proof of a document.
32. This was reiterated again by the Hon'ble Court in Sanyogita Prakash Vs. Dhira Bala Malhotra CM(M) 1208/2008, decided on 15.12.2009 where also while dealing with a lost document, the Hon'ble court held that there is no need to move an application under section 65 for leading secondary evidence on such document. Thus even as this court, arguments raised by Ld. Counsel for defendants have no force in law.
TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 21/28 22
33.Before parting with the aspect of relevance of witnesses summoned in both applications as argued by Ld. Counsel for the defendants Sh. Mukund & Sh. Mahindroo it would be pertinent to note that order XVI Rule 1 mandates list of witnesses and the purpose/documents for which the witness is proposed to be summoned. Once that is done the court cannot and should not determine the relevance of the testimony of the witnesses and/or admissibility and relevance of documents sought to be produced which has to be determined by the court only at the time they are produced & tendered. Reliance placed on 1974 RLR(Abridged)966 (supra). Similar law was settled in Aruna Batra's case (supra). No law contrary to aforesaid brought to the notice of the court.
34.Now adverting to one of the major and most vehmently argued argument of the defendants that application of summoning having being rejected earlier on 08.09.2008 and 22.12.2008, cannot be allowed now on the principle of res judicata. In this regard first and foremost it is settled preposition of law that principle of resjudicata doesn't apply to interlocutory judgments.
35.In AIR 1972 Madras 421 titled V. S. Subha Reddiar Vs. Seetharaman it has been held:
".... it is well settled that the doctrine of resjudicata applies only to final judgments and not to interlocutory judgments...."
TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 22/28 23
36.Similarly in AIR 1973 Patna 213 titled Satya Kinkar Palit Vs. M/s Brahmdeo Sinha & Co.
it has been held as under:
"....Section 11 - Interlocutory order not deciding any dispute between parties - it cannot operate as resjudicata in a subsequent stage of the suit.
Thus, a prior refusal to issue commission for examination of a witness would not mean that the court cannot grant a subsequent application for the same purpose in changed circumstances..."
37. Further in AIR 1991 Patna 235 titled Mahadeo Mahto and others Vs. Hiralal Verma & Ors. It has been held as under:
"....Civil P. C. (5 of 1908) S.11 - Res judicata - Interlocutory Orders do not operate as resjudicata.
....it is true that principles of res judicata apply at different stages of the suit, but it is also well known that interlocutory orders do not operate as resjudicata...."
38.Our own Hon'ble High Court reiterated the principle in 2009 (108) DRJ 15 titled Rakesh Madan & Anr. Vs. Rajasthan Financial Corpn. & Ors. while relying upon the pronouncement of law laid down in AIR 1987 SC 1145.
39.Ld. Counsel for defendants Sh. Mukund has failed to show in any law to the contrary. However, during the course of arguments has vehemently argued that the orders dated 22.12.2008 and 08.09.2008 were not interlocutory. However, he has failed to even demonstrate the same.
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40.Be that as it may, the court may just have a look at these orders rejecting earlier applications for summoning. Order dated 08.09.2008 while rejecting the application under Order 16 Rule 1 & 6 CPC read with Section 151 of plaintiff for summoning the witnesses clearly specifies that application to be premature as issues have not yet been settled and parties are yet to lead their evidence. The order itself specifies that the parties may cause these witnesses to be summoned 'at appropriate stage of leading evidence'. Thus by no stretch of imagination the same can be called as determination of the application on merits.
41.Now adverting to the much emphasized & pressed upon order of the Ld. Predecessor of this court dated 22.12.2008. This order certainly do decide two common applications- one under Order 11 Rule 14 read with Order 13 Rule 10 read with Order 16 Rule 6 read with Section 151 CPC and the other under Order 12 & 13 CPC. Interestingly the order details about the notices under Order 12 Rule 8 CPC, refers to order dated 08.09.2008 (supra) and relying upon K. K. Manchanda's case 152(2008) DLT 498 while observing that records of Section 35/08 - Kamla Devi Vs. Shiv Kishan Aggarwal containing original documents and certified copies can be requisitioned at any stage of proceeding in this suit (page 14 of the order), disallows remaining official witnesses to be summoned observing that deed of dissolution dated 16.11.1974 is document around which the whole controversy resolves. Ld. Predecessor was pleased to observe that execution and exercise of alleged undue influence at the time TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 24/28 25 of execution is the main issue. Ld. Predecessor further observed that onus is on the plaintiff who can prove the same by producing original of dissolution deed dated 16.11.1974 which is not in power & possession of the defendants admittedly. The Ld. Predecessor observed that it is for the plaintiff to prove the original being lost and only thereafter they can be allowed to prove the factum of execution of deed of dissolution. Even this by no etymological interpretation can be called a determination of application on merits but can at best be determined as disallowing on the ground that stage is not set for the same.
42.As on today circumstances have clearly changed, Admission denial of document (on the specific noobjection of the defendants) has taken place on 28.04.2009. Affidavit of PW1 Manohar Lal has been allowed to be filed vide detailed order dated 25.08.2009 of the Ld. Predecessor of this court. As on today the testimony of PW1 has been concluded, the factum of the original dissolution deed dated 16.11.1974 being lost/not filed as record being untraceable has come on record (may be during crossexamination) and as such that the stage is well set for the plaintiff to lead the evidence on these aspects in terms of the order dated 01.10.2008 of Hon'ble Supreme Court as referred to earlier. Evidence has to be considered in totality and not in piece meal. Even otherwise, the factum of these witnesses mentioned in list of witness to prove the contents on execution of the dissolution deed dated 16.11.1974 including the attesting witness, chartered accountant as well as principle borrower of the company TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 25/28 26 and other witnesses to be examined to prove the contents and execution of the aforesaid dissolution deed has also been duly referred to and discussed by the Hon'ble Delhi High Court in its order dated 09.08.2011. And thus even this argument of the Ld. Counsel for the defendants also do not hold any grounds, either in law or on facts.
43.One more oral argument vehemently pressed and argued by the Ld. Counsel for the defendants has been that filing of the original documents including filing of certified copies of the documents being refused by the Ld. Predecessor Court while dealing with applications under Order 7 Rule 14 CPC and Section 65 of Evidence Act on 21.02.2009 upheld by High Court (order dated 08.04.2009) and not interfered by Supreme Court (order dated 14.05.2009), the plaintiffs cannot be allowed to summon the witnesses and bring documents from the back door.
44.In this regard also, the law is also settled that a party to the suit may summon a witness for production of documents even if the documents are not already filed on record. Reliance placed on (2009) 11 SCC 47 titled Ashok Sharma Vs. Ram Adhar Sharma. The logic behind the aforesaid preposition has been given by the Hon'ble Court that a party may require a witness to be asked to produce documents in their power & possession and not in power & possession of the party. It is pertinent to note here that order dated 21.02.2009 was also an interlocutory order and court can now certainly look into changed circumstances and different TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 26/28 27 stage of the suit. Further when the plaintiff's were not allowed to file 14+2 volume of documents vide order dated 21.02.2009, they cannot and should not be precluded from at least summoning the witnesses having power & possession of the document as per list of witnesses dated 12.11.2008 filed within time.
45.Finally, very briefly dealing with delay and latches in moving the applications, the application being made to protract trial and lack of bonafides arguments as raised by Ld. Counsel for the defendants. In so far as the delay and latches argument is concerned, the defendants have failed to show how the applications under disposal are delayed and suffer from latches. The applications were moved on 11.04.2012 and 09.05.2012 when the crossexamination of PW1 Manohar Lal was underway before the Ld. Advocate Commissioner and has been concluded as late as January, 2013. Moving an application for summoning or seeking summoning of additional witness by way of amendment in the original list or those in the list already at the aforesaid juncture cannot said to be suffering from delay or latches, since the first witness of the plaintiff was under active crossexamination. On lack of bonafides also, though no specific allegations have been raised but Ld. Counsel for the defendants have pointed out the earlier applications of the plaintiffs being moved and disposed of by Ld. Predecessors. The same cannot by itself and more particularly as discussed in the preceding paragraphs, show lack of banafides on the part of the plaintiffs when the matter remained on board of the court on TM No.02/11/1992 Anand Kumar Deepak Kumar Vs. Haldiram Bhujiawala 27/28 28 almost day to day basis besides the evidence being recorded by the Ld. Advocate Commissioner and PW1 being cross examined thrice a week for about 100 sessions. In so far as the inadvertence or omission of the counsel for the plaintiffs in not mentioning the name of one witness in the list of witnesses is concerned, it is a settled preposition of law that a party should not be made to suffer for the wrongs of his/her counsel. In any case the defendants can always be compensated in terms of costs for such an inadvertence of the counsel for plaintiffs.
46.In view of the discussions held aforesaid, the court is of the considered opinion that interest of justice would be sub served if the applications of the plaintiffs are allowed subject to costs of Rs. 10,000/ to be paid to the defendants. The trial has already been delayed and the parties are accordingly directed to expedite the same without seeking any adjournments. The Ld. Advocate Commissioner shall ensure an expeditious recording of evidence of the parties in terms of the order dated 01.10.2008 and 06.09.2010 of the Hon'ble Supreme Court of India and conclude the same at the earliest. Ordered accordingly.
(MUKESH KUMAR GUPTA)
DATED 10.06.2013 ADDL.DISTT.JUDGE06
ANNOUNCED IN THE OPEN COURT CENTRAL/DELHI
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