M.V. Raghuveer vs M. Abubucker

P.R. Shivakumar, J.—These three Civil Revision Petitions have been filed against the orders passed by the Principal District Court, Madurai in I.A. Nos. 20, 21 & 22 of 2012 in O.S. No. 61 of 2006. The said Interlocutory Applications were filed for re-opening the case for letting additional evidence, to condone the delay in filing the documents sought to be produced and to recall P.W. 1 (the plaintiff) for further examination. The suit has been filed for the following reliefs:

a) Permanent injunction restraining the defendant therein (revision petitioner) from in any manner passing off its services by adopting, using and copying the plaintiff''s service Mark ''NAAZ'' as ''NAAZ'' or any other similar mark.

b) Mandatory injunction against the defendant (revision petitioner) to surrender all the products, packing materials, labels etc., in the market to the plaintiff for destroyal and for the removal of the name apparently seen below the name of the defendants.

c) Award costs.

The suit was resisted by the revision petitioner and after framing the issues, witnesses were examined on both sides. After completion of the evidence adduced on both sides, the case was listed for hearing the arguments. At that stage, the respondent herein/plaintiff filed the above said interlocutory applications in I.A. Nos. 20, 21 & 22 of 2012 for re-opening the case, to condone the delay in filing the document namely the certificate of registration of Trade Mark issued in favour of the plaintiff and to recall P.W. 1 (plaintiff) through whom the said certificate was sought to be marked. In the affidavit filed in support of this petition, respondent (petitioner/plaintiff) has stated that the application for registration of trade mark and trade name had been submitted to the Registering Authority even prior to the filing of the suit, but he could get the registration completed only after the filing of the suit and hence the said certificate could not be filed along with plaint. It was also contended therein that the production of the document was essential for the proof of his case and hence the case must be re-opened for additional evidence, the delay in producing the document should be condoned and P.W. 1 should be recalled for proving and marking the document through him.

The said petitions were opposed by the revision petitioner contending that the plaintiff who failed to produce the document along with plaint and failed to include it in the list of documents could not be allowed to produce the document as he had not obtained the leave of the Court to produce it at a later point of time. On similar reasoning, the other petitions were also opposed. In short, the contention of the revision petitioner was that the filing of the petitions was an attempt on the part of the respondent/plaintiff to fill-up the lacunae caused in his case.

The learned Trial Judge, after hearing both sides, came to the conclusion that the petitioner could not have produced the document along with the plaint as it came to be issued only at a later point of time and that hence the delay in producing the document should be condoned. So far as the other two petitions are concerned, it is the observation of the learned Trial Judge that re-opening of the case became necessary, because without re-opening the additional document could not be received and recalling P.W. 1 became necessary because the revision petitioner/defendant did not give consent for marking the document to be produced. Based on the reasoning and accepting the averments made in the affidavit of the plaintiff that the plaintiff could not produce the document along with plaint since it was obtained only during the pendency of the case, the learned Trial Judge allowed all the three applications by a common order dated 10.09.2012. Aggrieved by and challenging the same, the revision petitioner has come forward with these three Civil Revision Petitions invoking the power of superintendence of the High Court under Article 227 of the Constitution of India.

The learned counsel for the petitioner, at the time of submitting his arguments for admission of the C.R.Ps, has contended that though the petition for re-opening the case was filed under the proper provision, the other two petitions did not refer to the appropriate provision of law and that hence, the order of the trial Court in the respective petition would stand vitiated. It is the further contention of the learned counsel for the revision petitioner that the plaintiff who intended to produce the document at a later point of time, ought to have included the same in the list of documents and obtained the leave of the Court for producing the same subsequently; that since the leave was not obtained by the plaintiff, the petition for condoning the delay in filing the document ought not to have been allowed. So far as the order allowing the petition for recalling the P.W. 1 is concerned, besides the same contentions, the learned counsel for the revision petitioner would submit that the power of recalling the witnesses should not be used so as to allow the party to fill-up the lacunae caused in his case. The learned counsel for the petitioner also has contended that all the three petitions should not have been disposed of by a common order and orders ought to have been passed one by one those petitions.

The above said contentions raised by the learned counsel for the petitioner are taken into consideration. Upon considering the above contentions in the light of the facts and circumstances of the case, this Court comes to the conclusion that none of the contentions raised by the learned counsel for the petitioner can be countenanced as valid ground for sustaining the revisions filed under Article 227 of the Constitution of India.

It is the contention of the learned counsel for the petitioner that the petitions for re-opening the case for further evidence, to condone the delay in filing the additional documents and to recall the witness ought not to have been disposed by a common order and that at first the re-opening petition ought to have been disposed of, then the petition for receiving the additional documents should have been taken up and then only petition to recall P.W. 1 should have been taken up for disposal.

No doubt, when a number of petitions have been filed during the course of trial, consideration of a petition on merit shall depend upon the out-come of another petition. But it does not mean that the Court cannot hear the matters together and dispose of all the petitions at one and the same time. The difference shall be, depending upon the out-come of one petition, the other petition shall be disposed of either on merits or without going into the merits. For example, in a petition filed u/s 5 of the Limitation Act along with an application for setting aside the ex-parte decree, it is not necessary that the application filed u/s 5 of the Limitation Act alone is disposed of at the first instance and then the petition filed under Order 13 Rule 1 of CPC should be taken up for consideration. Suppose the order passed in Section 5 application shall be in the negative, namely dismissal of the petition, it will result in rejection of the petition under Order 9 Rule 13 C.P.C., without going into the merits of the same. If the order in the petition filed u/s 5 shall be in the affirmative condoning the delay, then the order 9 Rule 13 C.P.C., shall be touching the merits of that petition. By adopting such a method, precious time of the Court shall be prevented from being wasted. Similar is in the case of petitions seeking condonation of delay in filing the petition to set aside the abatement, the petition to set aside the abatement and the petition to bring on record the Legal representatives of a deceased party. If the procedure indicated supra is adopted, it shall be a time saving measure and it shall be adopted in all such cases. Similar is the case on hand. The adoption of such procedure for avoiding unnecessary delay by the learned Trial Judge cannot be found fault with and in fact, it has got to be appreciated. Hence, the above said contention of the learned counsel for the petitioner is bound to be discountenanced.

The next contention of the learned counsel for the petitioner that a party seeking to produce the document at a later point of time should have obtained prior permission before filing the application to condone the delay in producing the document is also untenable, because when a party was not aware of the existence of the document or when a document comes into existence only at a later point of time, such a party cannot be expected to include the same in the list annexed to the plaint or written statement, as the case may be. What is intended by legislature is that if the documents were not produced earlier as per the rules and if the documents were not listed out in the pleading, the same will not be allowed to be produced later without the leave of the Court. How the leave is to be sought for?-is the question. When a party files a petition seeking permission of the Court to produce a document which was omitted to be produced earlier, such a petition is nothing but a petition seeking the leave of the Court to produce such a document. I.A. No. 22 of 2012 is only such a petition. Therefore the said contention of the learned counsel for the petitioner also deserves to be discountenanced.

The next contention of the petitioner is that though the document sought to be produced had been obtained in 2008 itself, it was sought to be produced only in 2012 and no reason was assigned by the respondent herein for the delay after 2008. Of course the suit itself was filed for an action against passing off and not based on infringement of a registered trade mark. Only in support of the case of the plaintiff that he was using the trade mark and the defendant has passed off his service as that of the plaintiff, the plaintiff wanted to produce the certificate of registration of trade mark issued subsequent to the filing of the suit on an application submitted by the plaintiff even prior to the filing of the suit. Such a document shall be very much helpful to the Court to arrive at a just conclusion in the case. If such is the nature of the document, even in appellate stage the production of the same as additional evidence can be allowed under Order 41 Rule 27 of C.P.C. If the scope of a petition for production of additional evidence in the trial is considered in the light of order 41 Rule 27 of C.P.C., this Court cannot find fault with the order passed by the learned Trial Judge.

So far as the recalling of P.W. 1 is concerned, there is a strong opposition for the production of the documents itself. Hence, the recalling of P.W. 1 has became necessary because only through him, the document could be marked and by such recalling of P.W. 1, the revision petitioner shall also have an opportunity of cross-examining him with regard to the said document and also regarding the reason for non-production of the same immediately after obtaining the same from the concerned authority. Therefore, the challenge made by the revision petitioner on the said ground also deserves rejection.

For all the reasons stated above, this Court come to the conclusion that there is no merit in these C.R.Ps and they are bound to be dismissed.

Before parting with the case, this Court wants to point out that the power of superintendence conferred under High Court should be exercised with circumspection. Merely because the High Court can take a different view on merits than the one taken by the trial Court, the High Court shall not interfere with the order of the Subordinate Court. Normally when questions of jurisdiction is involved, namely when orders are passed without jurisdiction or orders are passed refusing to exercise jurisdiction or there is omission to pass an order refusing to exercise jurisdiction, the same shall be the grounds on which the power of superintendence shall be exercised. To the above said grounds, patently unlawful orders and perverse orders can also be added. When there is a specific provision for revision u/s 115 C.P.C., the same shall be an effective, alternative and efficacious remedy based on which the exercise of power under Order 227 can be declined. For all the reasons stated above, this Court comes to the conclusion that the C.R.Ps., do not even merit admission and are liable to be dismissed at the threshold. Accordingly, all the three Civil Revision Petitions are dismissed. No costs.