21.04.2025 Date of M/s Lamba Ex a Exports Pvt. Ltd. & Another M/s Kristan v. CORAM: HON’BLE
Case Details
Page 1 of 31 31 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH CR-6805-2023 (O&M) Reserved on: 27.03.2025 of pronouncement: 21.04.2025 Date of M/s Lamba Ex a Exports Pvt. Ltd. & Another M/s Kristan Au n Auto Vs. CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- ocate Mr. Lokesh Sinhal, Advocat , Advocate Mr. Sukhandeep Singh, Adv for the petitioners. ...Petitioner(s) ...Respondent(s) Mr. Amit Jhanji, Senior Adv Ms. Triyyambika Rao, Advo Ms. Nandita Verma, Advoc for the respondent. Advocate with dvocate vocate NIDHI GUPTA, PTA, J. *** Present revision petition tion under Article 227 of the Constitution on of India has been filed by by the defendants/landlords challenging th the order dated 22.09.2023 (An (Annexure P1) passed by the Commercial ct ial Court/ Additional District Judge-cum-Presiding Judge Exclusive Com Commercial Court at Gurugram exe exercising jurisdiction under the Commercial C ial Courts Act, 2015 (hereinafter fter referred to as ‘the Act’), whereby the th objection raised by by the counsel for the respondent/pl t/plaintiff/tenant has been accepte epted; and the petitioners have been denied ied the permission to put a vid video clip during the cross- examination o on of plaintiff/PW1. 2. Brief facts of the case are tiff are that the respondent/plaintiff had filed a a suit dated 30.05.2022 (Annexure P2) against (A he the SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document petitioners/de s/defendants before the Commerc Page 2 of 31 31 (cid:1) of ercial Court seeking recovery of Rs.1,39,94,230 ,230/- which includes Rs.1,32,00 sit; 2,00,000/- as security deposit; Rs.2,12,400/- - for sewerage repair cost; and ed nd Rs.5,81,830/- as accumulated interest @ 18 18% per annum. The said suit wa ial t was filed under the Commercial Courts Act, 2 t, 2015. Facts as pleaded in the p as he plaint were that plaintiff was inducted as a s a tenant in the suit premises and ed and for that purpose a Lease Deed dated 24.12.2 12.2018 was executed for a period o of iod of 9 years. As per the terms of the lease de deed there was a lock-in perio he period of 36 months from the commenceme ement of the lease deed. The resp ed espondent/tenant/plaintiff used the premises ses for operating an Audi vehicle w of cle workshop. An advance rent of Rs.22 lakh wa was paid by the respondent. As pe he s per the case of the plaintiff the dispute arose rose during the COVID period. ed . As such, vide email dated 31.08.2021, the respondent had informed all ed the petitioners that he shall vacate the pre premises by 15.01.2022. On 17.01 nt 7.01.2022, another email was sent by the respond pondent to the petitioners stating th ed ng that the premises were vacated and ready for for handover. Pursuant to which, o as h, on 01.02.2022, possession was officially hand anded over to the petitioner No.1. he o.1. It was the pleaded case of the respondent in t in the plaint that despite vacati ity cating the premises, the security deposit of Rs. f Rs.1,32,00,000/- and sewerage re ed. e repair costs were not refunded. Accordingly, th ly, the respondent had filed the pres present suit for recovery. 3. The petitioner/defendants led ants contested the suit and filed written statem atement (Annexure P-3) wherein it tiff in it was pleaded that the plaintiff has not only c nly caused damage to the suit pro he property but has also stolen the movable prop roperties therefrom. Counter claim ery claim (Annexure P-4) for recovery SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document of Rs.2,79,25,5 ,25,536/- along with interest @ 18% Page 3 of 31 31 (cid:1) lso 18% interest per annum was also filed for: a) da damages to property; b) unpaid r 20 aid rent for April 2020, May 2020 and January ry 2022. It was the allegation of t ter of the petitioners in the counter claim that the the property was damaged beyon er; yond repair at time of handover; that there wa was theft of moveable property .1; rty belonging to petitioner No.1; that there wa
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was damage to fire safety system ge, tem, electrical system, sewerage, water harvesti
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vesting and drainage systems. 4. During the course of he of trial, the evidence of the respondent/pl t/plaintiff commenced in wh aj, which PW1-Nitish Bhardwaj, Authorised Pe d Person of the plaintiff-Firm, tende 23 ndered Affidavit dated 13.03.2023 (Annexure P5 P5/Ex.PW1/A) in which he reite as eiterated that the property was handed over ver to the petitioners in its origina ge. iginal condition without damage. During his cro cross-examination, a specific que ish question was put to Mr. Nitish Bhardwaj PW PW-1 that during the occupation of cal n of the plaintiff various electrical equipment we were stolen from the premises for as s for which a police complaint was also lodged. W d. When the plaintiff witness den of denied the factum of stealing of electrical equi equipment, the defendant, in order , rder to confront the said witness, had put to him him the disputed video clip in his c - is cross examination (Annexure P- 6). An objecti jection was then raised by the cou at counsel for the respondent that since the vide video clip was not part of the writte ot ritten statement the same cannot now be put to t to the plaintiff witness. 5. Thus, the bone of conten ion ntention in the present Revision Petition is that that during the cross-examination o for ion of Nitish Bhardwaj, counsel for the petitioner ner had tried to confront him with n a with a video recording stored in a SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document pen drive; to to which the counsel for the re Page 4 of 31 31 (cid:1) ide e respondent had objected. Vide impugned ord order dated 22.09.2023, the objec he bjection raised by counsel for the respondent/pl t/plaintiff was accepted and the re the petitioner/defendants were denied permis rmission to put the video clipping - ing to the PW1 during his cross- examination. on. The said objection of the respo ed espondent/plaintiff was accepted by the learned rned trial Court primarily on two gr in o grounds: a) that no certificate in the form of S of Section 65B of the Indian Evid ed Evidence Act had been tendered proving the au e authenticity of the video clippin of pping. Besides non-compliance of Section 65B, n , no declaration under Order XI ed; XI Rule 6(3) CPC had been filed; and b) since th ce the video clip is not part of the w PC e written statement, Order XI CPC as amended ed by the Commercial Courts A ch ts Act bars production of such document. 6. It is submitted by learned s rned counsel for the petitioners that so far as S r as Section 65-B of the Indian Evide aid vidence Act is concerned, the said provision doe does not contemplate as to at w is t which stage the certificate is required to be o be produced. As such, said certific ed rtificate could have been produced by the petitio titioners at a later stage; as also co he o contemplated/permitted by the Hon'ble Supre upreme Court in latest judgment re ka t reported as "State of Karnataka vs. T. Naseer @ eer @ Nasir @ Thandiantavida @ N & @ Naseer @ Umarhazi @ Hazi & Ors. (2023 IN 3 INSC 988) SLP(Crl) No.6548 of 2 at of 2022"; wherein it is held that certificate und under Section 65-B can be produce ot uced at any stage if the trial is not over. It has b as been held that a certificate u an te under Section 65-B is not an evidence whic which has been created now. It is ju nt is just a need for the requirement of law to prov prove the electronic document alre ed already on record. It is contended SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document that as such o ch objection of counsel for the res Page 5 of 31 31 (cid:1) en respondent could not have been accepted for n for non-production of Certificate und under section 65-B. 7. As far as Order XI CPC as ial as amended by the Commercial Court Act is co is concerned, it is contended that t ed hat the Trial Court has overlooked sub-Rule 7(c) (c) of Order XI Rule 1 which spe an specifically provides/ creates an exception stip stipulating that: (c) “nothing in this nts this Rule shall apply to documents produced by th by the defendants and relevant only only- (i) for the cross-examination ation of the plaintiff's witnesses, (ii) in answer to any cas y case set up by the plaintiff subsequent to the filing of t g of the plaint, or (iii) handed over to a w his a witness merely to refresh his memory." 8. Ld. Counsel submits that hat the case of the petitioners falls in the ex e exception carved out under Ord rder XI Rule 1 (7) (c) CPC as applicable to to the Commercial Courts disput sputes. It is submitted that the exception un under Order XI Rule 1(7)(c)(i )(c)(i) clearly states that the requirement nt to disclose documents in ad advance does not apply to documents us s used solely for cross-examining a g a plaintiff’s witness. Thus, the video clipping ping being used for cross-examinatio ation of plaintiff’s witness, need not have been een disclosed earlier. It is further er argued that in compelling the petitioners to s to previously disclose the said said evidence, is violation of principles of of cross-examination as the right right to cross-examine includes confronting a g a witness with new evidence to e to test credibility. Trial Court’s restructure a e approach undermines this fun fundamental right and truth- seeking functi nction of cross-examination. SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document 9. It is further submitted tha that the provisions of Order XI Page 6 of 31 31 (cid:1) CPC as amend ended by the Commercial Courts urts Act are pari-materia to the already existin isting provisions of Order VII Rule 1 ule 14(4);Order VIII Rule 1(A)(4); as well as Ord Order XIII Rule 1(3) of the CPC. C. It is submitted that the Delhi High Court in t in "Subhash Chander v. Bhagwan wan Yadav" 2010 (114) DRJ 306 has held that that these provisions requiring the the parties to file documents along with ple pleadings and /or before the settle ettlement of issues do not apply to the docume uments produced for cross-examina mination of the witnesses of the other party. It has been held that the legi legislative intent behind these provisions is t is to permit an element of surprise prise which is very important for the cross-exa examination of witnesses. It is s is submitted that in case the petitioners ha had not confronted the responde ndent with the video recording during his cro s cross-examination, the element ent of surprise which was the intent behind ind the pen drive would have been been lost. If the respondent had admitted the the video during his cross-examin amination then the said video clipping would ould have been admitted into evid evidence and if the respondent had denied t d the said video clipping, then t en the petitioners would have proved the sa e same during his evidence.Relevan levant Paras 8 to 11 of Subhash Chander supra upra read as follows: “8. Order 7 Rule 14(4), Order 8 R der r 8 Rule 1 (A) (4), as well as Order 13 Rule 1(3) provide that the prov file provisions requiring parties to file documents along with their p the ir pleadings and/or before the settlement of issues do not appl for apply to documents produced for the cross-examination of the wit To witnesses of the other party. To the same effect, Section 145 of t its of the Evidence Act also permits SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document documents to be put to the w Page 7 of 31 31 (cid:1) ot e witnesses, though it does not provide whether such document the ments should be already on the court record or can be produced e. duced / shown for the first time. However, in view of the unambig , it mbiguous provisions of the CPC, it cannot be held that the documen wn ument cannot be produced/shown for the first time during cross ex fo to ss examination. If the witness to whom the said document is pu g/ s put, identifies his handwriting/ signature or any writing/ signatur the natures of any other person on the said document or otherwise adm the admits the said documents, the same poses no problem, becaus ds cause then the document stands admitted into evidence. Howeve to wever, the question arises as to what is the course to be followed aid wed if the witness denies the said document. Is the document to be be o be kept on the court file or to be returned to the party producing th ing the same? 9. This question also in my view is . It ew is also not difficult to answer. It cannot possibly be said that the ed the document should be returned to the party. If the document i be ent is so returned it will not be possible for the court to at a sub to subsequent stage consider as to what was the document put an the ut and what was denied by the witness. In a given case, it is po the is possible that the answer of the witness on being confronted wit be with the document may not be unambiguous. It may still be op der e open to the court to consider whether on the basis of the said the said answer of the witness, the document stands admitted or pro the r proved or not and/or what is the effect to be given to the said a ent aid answer. Thus, the document cannot be returned and has to the s to be necessarily placed on the court file. 10. The next question which arise so arises is that if the document is so placed on the court file, whether ted ther it becomes / is to be treated as the document of the party pro at y producing the same and is that party entitled to prove the said ing said document notwithstanding SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document having not filed the same earlier, Page 8 of 31 31 (cid:1) se rlier, as required by law, or the use of the said document is to be c the be confined only to confront the witness to whom it was put and be and it cannot be permitted to be proved by that party in its own ev n evidence. 11. The legislative intent behind o r 8 ind order 7 Rule 14(4) and Order 8 Rule 1A (4) and Order 13 Rule 1(3 an le 1(3) appears to be to permit an element of surprise, which is v oss is very important in the cross examination of witnesses. A litiga ion litigant may well be of the opinion that if the document on the basis ish asis whereof he seeks to demolish the case of the adversary is filed o ith iled on the court record along with pleadings or before framing of iss ge f issues, with resultant knowledge to the adversary, the adversary his sary may come prepared with his replies thereto. On the contrary, ce ary, if permitted to show/produce the document owing to element or ent of surprise, the adversary or witness, may blurt out the truth. O t is th. Once it is held that a litigant is entitled to such right, in my view i ke iew it would be too harsh to make the same subject to the condit uld ondition that the litigant would thereafter be deprived of the righ nts right to prove the said documents himself. Thus, if the witness to w in to whom the document is put in cross examination fails to admit so dmit the document, the party so putting the document, in its own to own evidence would be entitled to prove the same. However, the sa od e same should not be understood as laying down that such party fo ve ty for the said reason and to prove the said document would be ent ich e entitled to lead evidence which otherwise it is not entitled to nd to as per scheme of CPC and evidence law. For instance, if th the if the document is shown by the defendant to the plaintiff's witne ess witness and the plaintiff's witness denies the same, the defendant c his ant can prove the document in his own evidence. Conversely, if the p to the plaintiff puts the document to the defendant's witness and the d the the defendant's witness denies the same, the plaintiff if entitled to le in to lead rebuttal evidence would in SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document his rebuttal evidence be entitled t Page 9 of 31 31 (cid:1) , if led to prove the same. However, if the plaintiff has no right of rebu lar rebuttal evidence in a particular case, the plaintiff would not be e to be entitled to another chance to prove the document. In such a cas e a a case, the plaintiff has to make a choice of either relying upon the ing the surprise element in showing the document or to file the docum gs ocument along with its pleadings and/or before the settlement of i e. t of issues and to prove the same. Similarly, if the defendant choose to ooses to confront the document to the plaintiffs witness in rebuttal, ess uttal, merely because the witness denies the document would not a not entitle the defendant to a chance to prove the document sub t subsequently.” d) (Emphasis added) 10. It is pointed out that simila in imilarly the Bombay High Court in "Havovi Kesri esri Sethna v. Kesri Gustad Sethna" 08, hna" Law Finder Doc ID # 261408, has held that t hat the very purpose of cross-exami he xamination will be frustrated if the document of of the other side which is to be or o be confronted, is shown to or inspected by t by that party earlier. 11. Ld. Counsel for the petiti hd. etitioners then refers to "Mohd. Abdul Wahid hid v. Nilofer and Anr. (2023 SCC On at C Online SC 1672)" to submit that in the said jud judgment, while considering the s ); he scope of Order VII Rule 14 (4); Order VIII Rule Rule 1-A(4)(a); Order XIII Rule 1(3) ble 1(3) of the CPC, 1908 the Hon’ble Apex Court ha has held that so long as the docu for document has been produced for the limited p d purpose of cross-examination o he n or to jog the memory of the witness at the the stand, and is not completely d he ly divorced from or foreign to the pleadings ma made, the same cannot be said his said to fly in the face of this established po d position. Save and except the cro ivil e cross-examination part of a civil SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document suit, at no ot other point shall such confrontat Page 10 of 31 31 (cid:1) ch ntation be allowed without such document hav having accompanied the plaint/w re nt/written statement filed before the Court. Re Reliance in particular is placed up aid d upon following para 49 of said judgment:- “49. A reading of the judgmen at gments above would imply that substance is what the courts need , in need to look into, and therefore, in reference to the production of d red of documents, in the considered view of this court, so long as the the the document is produced for the limited purpose of effective cros the cross-examination or to jog the memory of the witness at the sta ed e stand is not completely divorced from or foreign to the pleadings f be dings made, the same cannot be said to fly in the face of this establ stablished proposition.” 12. It is lastly contended that that as regards the declaration required to b o be filed as per Order XI Rule 6( le 6(3) CPC as amended by the Commercial C ial Courts Act, the said requiremen ment applies to the documents disclosed and and not to other documents. Since ince the video clip sought to be put to the pl e plaintiff's witness in cross-exam xamination is not a ‘disclosed’ document and and falls within the exception unde under Order XI Rule 1 (7) (c) CPC as amended, ed, the provisions of Order XI Rule Rule 6(3) would not apply. It is argued that t at thus, there is misapplication of n of Order XI Rule 6(3); which applies only nly to electronic records forming ing part of disclosed evidence requiring on o on oath declaration for proof. Sinc Since defendants were not yet leading eviden idence but merely confronting the the witness, this provision was le. inapplicable. SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document 13. Per contra, learned Seni Page 11 of 31 31 (cid:1) he Senior Counsel representing the respondent/pl t/plaintiff firstly submits that the sel the argument of learned counsel for the petiti etitioner regarding element of su he f surprise, is ill-founded as the respondent w t was already aware of the video se eo clipping. This was so because the petitioner ner had previously filed a complain re laint dated 24.03.2022 (Annexure P7) in which h ich he had referred to the alleged v er ed video recording. The petitioner had also sent sent an email dated 08.04.2022 (A ith 2 (Annexure P8) to the ACP with copy to the he Deputy Commissioner of Polic ed Police in respect of the alleged damage cause aused by the respondent to the dem ain demised premises in which again the video con contained in a Compact Disk and p t is nd pen drive was mentioned. It is contended tha that therefore, there was no “elem ary element of surprise” left contrary to what has be as been sought to be portrayed by th by the petitioners. 14. It is next submitted by lea he y learned Senior Counsel that the Civil Suit (Ann Annexure P2) was filed on 30.05.20 nt 5.2022 in which written statement (Annexure P3) P3) was filed on 02.09.2022; coun as counter claim (Annexure P4) was also filed on 0 on 02.09.2022; which was accompa as mpanied by Statement of Truth as required unde under Order XI CPC on 02.09.202 ive .2022 itself in which a positive declaration/St n/Statement of Truth was made b ect e by the petitioner to the effect that: SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document “5. I say that all the documen on, ments in my power, possession, control or custody, pertaining to t of to the facts and circumstances of the counter claim initiated by en by the defendant have been disclosed and copies thereof ar of of are annexed with the list of documents filed with the counter nt nter claim, and that the defendant does not have any other docume Page 12 of 31 31 (cid:1) on, cuments in its power, possession, control or custody.”. 15. Learned Senior Counsel ivil nsel submits that unlike civil proceedings, a gs, a Statement of Truth is requir ial quired to be filed in commercial proceedings to gs to obviate the very element of su as of surprise. It is contended that as such, there co e could have been no element of su f surprise. 16. Learned Senior Counsel he nsel further submits that the provision of O of Order XI Rule 1(7) CPC has to be ns be read along with the provisions of Order XI Ru Rule 1 (10) CPC in which a defini er efinite exception is created as per which the def defendant cannot be allowed to re in o rely on documents which are in his possession sion, control or custody and are n en re not disclosed with the written statement or or counterclaim, “save and except ch xcept by leave of Court and such leave shall be ll be granted only upon the defen ble efendant establishing reasonable cause for non non-disclosure along with the writte ”. ritten statement or counterclaim”. It is contende nded that therefore, the said pen d ot en drive/video clipping could not have been rel relied upon by the petitioner exce ich except with leave of Court, which leave could h ld have been granted only upon ing upon the petitioner establishing reasonable cau e cause for non-disclosure of the sai his e said video clipping along with his written statem atement and counterclaim. Moreo wn reover, from the facts as shown above, it is is clear that prior to filing of nd of the written statement and counterclaim im on 02.09.2022, the petitioner w nd er was already in knowledge and possession of n of the said video clipping/pen his /pen drive as evident from his complaint dat dated 24.03.2022 (Annexure P7) 22 P7) and email dated 08.04.2022 SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document (Annexure P8) P8). It is reiterated that provision Page 13 of 31 31 (cid:1) PC ision of Order XI Rule 1(7)(c) CPC cannot be read read in exclusion of Order XI Rule le 1(10) CPC. 17. Learned Senior Counsel fur 6 l further submits that even Rule 6 of the Comme mercial Courts Act stipulates disclo ct isclosure. Rules 6 and 7 of the Act are as follows: ows:- ) “6. Electronic records.—(1) nd In case of disclosures and In inspection of Electronic Records ( ion rds (as defined in the Information Technology Act, 2000 (21 of 20 uts f 2000)), furnishing of printouts shall be sufficient compliance of th of the above provisions. (2) At the discretion of the part en parties or where required (when parties wish to rely on audio o of dio or video content), copies of electronic records may be furnish in nished in electronic form either in uts. addition to or in lieu of printouts. (3) Where Electronic Records form ed, form part of documents disclosed, the declaration on oath to be filed filed by a party shall specify - (a) the parties to such Electronic R nic Record; (b) the manner in which such ele ed h electronic record was produced and by whom; (c) the dates and time of prepara or paration or storage or issuance or receipt of each such electronic rec ic record; (d) the source of such electroni me tronic record and date and time when the electronic record was pr as printed; (e) in case of email ids, details nd etails of ownership, custody and access to such email ids; (f) in case of documents stored ter ored on a computer or computer resource (including on external of rnal servers or cloud), details of ownership, custody and access to or ss to such data on the computer or computer resource; (g) deponent's knowledge of c of of contents and correctness of SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document contents; (h) whether the computer or c Page 14 of 31 31 (cid:1) for or computer resource used for preparing or receiving or storing as ring such document or data was functioning properly or in case fu ch case of malfunction that such malfunction did not affect the ent the contents of the document stored; (i) that the printout or copy fu the y furnished was taken from the original computer or computer res er resource. (4) The parties relying on printou m, intouts or copy in electronic form, of any electronic records, sha ive shall not be required to give inspection of electronic records, p de ds, provided a declaration is made by such party that each such cop ed, h copy, which has been produced, has been made from the original e inal electronic record. (5) The Court may give directions nic tions for admissibility of Electronic Records at any stage of the procee roceedings. (6) Any party may seek directions urt tions from the Court and the Court may of its motion issue directio her ections for submission of further proof of any electronic record gs ord including metadata or logs before admission of such electron tronic record. 7. Certain provisions of the Code not Code of Civil Procedure, 1908 not to apply.—For avoidance of dou at doubt, it is hereby clarified that Order XIII Rule 1, Order VII Rule 14 the le 14 and Order VIII Rule 1A of the Code of Civil Procedure, 1908 (5 to 08 (5 of 1908) shall not apply to suits or applications before the C igh the Commercial Divisions of High Court or Commercial Courts.” 18. It is lastly contended t he d that the provisions of the Commercial C ial Courts Act are mandatory in n tly in nature and have to be strictly complied with with. In the present case even no he no application was filed by the petitioner for for producing the pen drive. The p ed he petitioner cannot be permitted SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document to just pull th ll the pen drive out of his pocket Page 15 of 31 31 (cid:1) nt ket and confront the respondent with the same n. ame during his cross-examination. 19. In support of his content sel tentions, learned Senior Counsel relies upon ju judgments of Delhi High Court in dia rt in “Great Gatsby Club of India Vs. Mahesh Pr sh Prefab Pvt. Ltd.” 2022 SCC OnLin ate nLine Del 2099; “Phonepe Private Limited Vs. EZ s. EZY Services & Another” 2022 S illy 22 SCC OnLine Del 2638; “Eli Lilly and Company any and Anr. Vs. Maiden Pharmac er rmaceuticals Limited” Law Finder Doc ID # 81 816101; “Entertainment Networ dia twork (India) Ltd Vs. HT Media Limited” Law Law Finder Doc ID # 2029006; judg in judgment of Gujarat High Court in “Jay Krishna na Printers Vs. S.N. Tradelink Pvt # Pvt. Ltd.” Law Finder doc ID # 2121370; judg judgment of Bombay High Court ies urt in “Khanna Rayon Industries Pvt. Ltd. Vs. S s. Swastik Associates & Others” L 37; s” Law Finder Doc ID # 2264937; “Bank of Bar Baroda Vs. Gujarat Cables and E d.” d Enamelled Products Pvt. Ltd.” 2023(2) Mh. h. L.J. It is accordingly prayed t be ed that the present petition be dismissed. 20. In rebuttal, learned couns its unsel for the petitioners submits that Order XI XI Rule 1(10) CPC will apply when d on en defendant evidence is going on and defendan dant witness produces a document nly ent. It is submitted that it is only then an objec bjection can be made by the plai ot plaintiff that document was not included with ith the written statement. 21. 22. No other argument is raise aised on behalf of the parties. I have heard learned coun ounsel for the parties and given my thoughtful htful consideration to the rival subm submissions advanced on behalf SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document of both the the parties. I find the submission ssions made on behalf of the Page 16 of 31 31 (cid:1) petitioners are s are liable to be rejected for the rea e reasons recorded hereinbelow. 23. The Prayer in the present ent Civil Revision is for quashing Impugned Ord Order dated 22.09.2023 (P-1) pass passed by Ld. Additional District Judge-cum-Pre Presiding Judge Exclusive Comm ommercial Court at Gurugram whereby the P he Petitioners/Defendants have be been denied permission to put video clipping 1. ing in cross-examination of PW-1. 24. The brief facts of the case a ase are as follows: a) 01.02.2022 022 - The Respondent/Plaintiff thro through its authorized signatory handed over t er the possession of the suit proper operty to Defendant No.1. b) 24.03.2022 022 - Police Complaint (P-7) was fil s filed by the Petitioners against the Responde ondent/Plaintiff alleging that whe when the Petitioners received possession of n of the said property the same w e was badly damaged and that certain movab ovable properties were missing. g. The Complaint mentions the video clipping ing and goes on to describe its cont contents. c) 08.04.2022 022 - E-mail (P-8) was sent by th y the Petitioners to ACP Udyog Vihar, Gurugr rugram regarding the above-men entioned Police Complaint. It mentions the v the video and the fact that the same ame was acquired by the Police. d) 30.05.2022 2022–Present Suit (P-2) is filed ed by Respondent/Plaintiff for recovery of R of Rs.1,39,94,230/- being the prin principal amount together with sewage repa epair cost of Rs.2,12,400/- and and Rs.5,81,830/- being the accumulated ed interest calculated @ 18% p per annum thereupon from 01.02.2022 till 2 till 30.04.2022. SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document Page 17 of 31 31 (cid:1) e) 02.09.2022 022 - Written Statement (P-3) and nd Counter Claim (P-4) are filed by Petitioners ners. The incident of vacation of pre f premises is mentioned in both, the Written St n Statement as well as the Counter nter Claim. However, the fact of existence of an of any such video does not find men mention despite the same being in the knowled wledge and possession of the Petiti etitioners. Even in the Statement of Truth attac attached with the said Written S n Statement and Counterclaim under Order er XI Rule 3, it is averred that the t the Defendants have disclosed all documents ents in their power, possession, co n, control and custody and the Defendants do ts do not have any other documents ents. f) 13.03.2023 2023–During cross-examination n of PW-1/Nitesh Bhardwaj authorized pe person of Plaintiff, who is presen esent at the time of vacation of premises, the the Petitioners sought to confront P nt PW-1 with the video clipping. Upon which ob objections were raised by the Res Respondent against the same. 25. Vide the Impugned Ord Order dated 22.09.2023 (P-1) passed by the the Ld. Additional District Judge-cu cum-Presiding Judge Exclusive Commercial ial Court at Gurugram exercisin rcising Jurisdiction under the Commercial Co ial Courts Act, 2015, the objection ra on raised by the Respondent was accepted and and the Petitioners were denied to to put the video clipping in the cross-examina ination of PW-1 as the same was n as not a relied-upon document. Hence, presen esent Revision Petition. 26. During the course of heari at earing, it has been informed that the cross-exam examination of PW-1 stands conclu as ncluded on 04.04.2024. Be that as it may, it has as first been contended by ld. Coun he ounsel for the petitioners that the pen drive/vide video clipping produced by the pe en e petitioners could not have been SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document rejected for w or want of Certificate under Sectio Page 18 of 31 31 (cid:1) ce ction 65-B of the Indian Evidence Act. Reliance h ce has been placed upon T. Nasee to seer supra wherein it is stated to be held that t at the said Certificate u/s 65-B can . I can be produced at any stage. I find no merit erit in the said argument as, the pr he e provision of Section 65-B of the Indian Eviden idence Act serves a very importan of ortant and useful purpose viz of attesting to th to the admissibility of the evidence of ence produced. In the absence of such a Certifi rtificate, the authenticity of the e be he evidence produced cannot be determined/ e / established; thus, possibly comp . ompromising the outcome of trial. Reliance of ld. f ld. Counsel for the petitioners on ex on judgment of the Hon’ble Apex Court in T. Na . Naseer supra is based on a misrea he sreading/ misinterpretation of the same. Relevan evant extract of the above said judg me judgment of the Hon’ble Supreme Court in T. Nas . Naseer supra is as under:- “11. Coming to the issue as to th the to the stage of production of the certificate under Section 65-B of th urt of the Act is concerned, this Court in Arjun Panditrao Khotkar's the ar's case (supra) held that the certificate under 65-B of the Act c ge Act can be produced at any stage if the trial is not over. Relevan ted levant paragraphs are extracted below: "56. Therefore, in terms prosecution is obligated to which reliance may be p commencement of the tria by the courts in criminal tr be filed at a later stage sh irreversible prejudice to exercise in respect of the carried out by the court, i by the prosecution under Section 165 of the Evidence of each case, and the cou rms of general procedure, the the ed to supply all documents upon on ore be placed to an accused before trial. Thus, the exercise of power er to al trials in permitting evidence to ge should not result in serious or or to the accused. A balancing ing be the rights of parties has to be urt, in examining any application ion or der Sections 91 or 311 CrPC or cts ence Act. Depending on the facts ter court exercising discretion after SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document seeing that the accused is fair trial, the court may in prosecution to produce su in time. If it is the accused requisite certificate as pa will depend upon the justic be exercised by the court in Page 19 of 31 31 (cid:1) f a ed is not prejudiced by want of a ay in appropriate cases allow the the int e such certificate at a later point the cused who desires to produce the s part of his defence, this again ain to justice of the case — discretion to urt in accordance with law. 59. Subject to the caveat l above, the law laid down b our concurrence. So long a yet over, the requisite cert produced by the learned information contained in then be admitted and relie 56 eat laid down in paras 52 and 56 wn by these two High Courts has as not ng as the hearing in a trial is not certificate can be directed to be be ned Judge at any stage, so that hat an d in electronic record form can relied upon in evidence." (Emphasis added)” ” 27. Read as a whole it is clea clear that the Hon’ble Supreme Court, while r ile relying upon 3-Judge Bench ju judgment in Arjun Panditrao Khotkar v. Ka . Kailash Kushanrao Gorantyal (S al (SC) : Law Finder Doc Id # 1731377 has g as granted discretion to the Court urt to permit production of the Certificate at at a later stage, however, subjec bject to the conditions that no prejudice is ca is caused to the other party in the t he trial, and such discretion is to ised be exercised in accordance with law. Permission law. to produce documents/ev evidence at a later stage is a is also subject to the caveat contained in p in paragraph 52 of the judgment ent in Arjun Panditrao (supra), which reads as ds as follows: “52. It is pertinent to recollect t ect that the stage of admitting documentary evidence in a crimi criminal trial is the filing of the charge-sheet. When a criminal co al court summons the accused to stand trial, copies of all documen ments which are entered in the SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document Page 20 of 31 31 (cid:1) charge-sheet/final report have t ve to be given to the accused. section 207 of the CrPC, 1973 w 73 which reads as follows, is mandatory[6*]. Therefore, the el e electronic evidence, i.e. the computer output, has to be furnis urnished at the latest before the trial begins. The reason is not not far to seek; this gives the accused a fair chance to prepa repare and defend the charges levelled against him during the t he trial. The general principle in criminal proceedings therefore, is re, is to supply to the accused all documents that the prosecution s ion seeks to rely upon before the commencement of the trial. Th l. The requirement of such full disclosure is an extremely valua valuable right and an essential feature of the right to a fair trial fe trial as it enables the accused to prepare for the trial before its com s commencement.” 28. It would therefore, appea ppear that the argument of ld. Counsel for th r the petitioners is based on a piece piecemeal reading/misreading of the above judg judgment. 29. It has next been submit bmitted that the case of the petitioners fa s falls under the exception carved rved out under Order XI Rule 1(7)(c)(i) whic hich explicitly allows documents t ts to be produced for first time during cross oss-examination. Said Order XI Rule 1(7) as applicable to commercial di al disputes reads as under: "(7) The defendant shall file a le a list of all documents and photocopies of all documents, in it , in its power, possession, control or custody, pertaining to the su e suit, along with the written statement or with its counterclaim claim if any, including- (a) the documents referred to and o and relied on by the defendant in the written statement; (b) the documents relating to an o any matter in question in the proceeding in the power, possessi session, control or custody of the SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document Page 21 of 31 31 (cid:1) defendant, irrespective of whethe hether the same is in support of or adverse to the defendant's defe defence; (c) nothing in this Rule shall apply apply to documents produced by the defendants and relevant only only- (i) for the cross-examination ation of the plaintiff's witnesses, (ii) in answer to any cas y case set up by the plaintiff subsequent to the filing of t g of the plaint, or (iii) handed over to a wit witness merely to refresh his memory." 30. It is my considered view view that this argument of ld. Counsel for th or the petitioners is also misconcei nceived inasmuch as the above said provision ision cannot be read in isolation ation; and has to be read in conjunction w n with Order XI Rule 1(9) and Order rder XI Rule 1 (10). Order XI Rule 1(9) and Orde Order XI Rule 1(10) CPC as applica plicable to commercial disputes, read as follow llows:- “(9) The written statement or co or counterclaim shall contain a declaration on oath made b e by the deponent that all documents in the power, possessi session, control or custody of the defendant, save and except for t for those set out in sub-rule (7)(c)(iii) pertaining to the facts facts and circumstances of the proceedings initiated by the plain plaintiff or in the counterclaim, have been disclosed and copies pies thereof annexed with the written statement or counter cla r claim and that the defendant does not have in its power, posses ossession, control or custody, any other documents. (10) Save and except for sub-rule rule (7) (c) (iii), defendant shall not be allowed to rely on docu documents, which were in the defendant's power, possession, c on, control or custody and not disclosed along with the written itten statement or counterclaim, SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document Page 22 of 31 31 (cid:1) save and except by leave of Cou f Court and such leave shall be granted only upon the defenda endant establishing reasonable cause for non-disclosure along w g with the written statement or counterclaim.” 31. Thus, as per the above pr e provisions, it is clear that the defendant is r is required to disclose and annex nex with the written statement/ counterclaim a im all the documents relevant to th to the lis which are in his power, possession etc n etc. No exception is permissible ble save and except under sub- rule (7)(c)(iii). (iii). Further, any document not so t so disclosed cannot be relied upon except w pt with leave of Court; and which hich leave can be granted only upon the def defendant establishing reasonabl nable cause for previous non- disclosure. It i It is a fairly settled position of law law that the proscription under Order XI Rule Rule 1 (10) is absolute and has to s to be applied stringently. The Commercial C ial Courts Act, 2015 is special statut atute brought in with the object and purpose o se of speedy disposal of suits rela relating to commercial disputes and it cannot not be plagued with the same mal malaise of lengthy trials as Civil Procedure Cod Code. 32. It is also to be noted that t hat the Legislature in its wisdom has limited e d exception only to sub-rule (7)( (7)(c)(iii), and not to sub-rule (7)(c)(i) and s nd sub-rule (7)(c)(ii). Thus, relianc iance placed by the petitioners upon the said said provision of Order XI Rule 1(7) 1(7)(c) is misconceived. It would appear that at the Petitioners are trying to su o surpass the proscription that video had to to be disclosed with the Written S ten Statement/Counter Claim by unfairly taking king advantage of Sub-rule (7)(c)(i) (c)(i) of Rule 1 Order XI. Further, the only excep xception to Order XI Rule 1(10) as ) as mentioned in the statute, is SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document Order XI Rule Rule 1(7)(c)(iii); and no exception tion is given qua Order XI Rule Page 23 of 31 31 (cid:1) 1(7)(c)(i) and nd (ii). To remove any ambiguity ity around the same, reference could also be be made to Order XI Rule 1(5) whi which deals with disclosure and discovery of d of documents by plaintiff. Notably, n bly, no parallel exception is given to the plaintif intiff as given to the defendant und under Order XI Rule 1(10). The explicit inclusi clusion of Order XI Rule 1(7)(c)(iii) a ii) as an exception only in case of defendants wh s while leaving out Order XI Rule 1( le 1(7)(c)(i) and (ii), is telling. The Judgments of s of Subash Chander and Pandh andharinath Laxman Bhandari (supra) relied lied upon by the Petitioners have n ve no applicability to the facts at hand. It may ay also be mentioned that these ese judgments do not deal with Commercial D ial Disputes to begin with. 33. Additionally, it may be e e emphasized that there is a further non-co compliance of Order XI Rule 6(3) 6(3) where any electronic record forming part art of documents has to be dec declared on oath. It has been contended by by the petitioners that such a d a declaration is required to be made only in ly in respect of ‘documents disc disclosed’. However, the said argument of t of the petitioners is a misnomer as r as, in terms of Order XI Rule 1 discussed abo above there is already a presump mption that the defendant has necessarily dis disclosed all documents/electronic ronic evidence relevant to the lis. 34. It has further been subm ubmitted by ld. counsel for the petitioners th s that the provisions of Order r XI CPC as amended by the Commercial C ial Courts Act are pari-materia to th o the already existing provisions of Order VII Rule 14(4); Order VIII Rule 1(A)(4 (A)(4); as well as Order XIII Rule 1(3) of the C e CPC. However, in submitting as g as above, ld. Counsel for the SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document petitioners is i s is ignoring the provision of Order der XI Rule 7 CPC as applicable to Page 24 of 31 31 (cid:1) the Commerci ercial Courts which stipulates as fol s follows: “7. Certain provisions of the Co e Code of Civil Procedure, 1908 not to apply – For avoidance of e of doubt, it is hereby clarified that Order XIII Rule 1, Order VII Ru VII Rule 14 and Order VIII Rule 1A of the Code of Civil Procedure, ure, 1908 (5 of 1908) shall not apply to suits or applications befo before the Commercial Divisions of High Court or Commercial Cour Courts.” 35. In the same vein it has als s also been submitted on behalf of the petition titioners that the Delhi High Court urt in Subhash Chander (supra) has held that that these provisions requiring the the parties to file documents along with ple pleadings do not apply to the doc documents produced for cross- examination o on of the opposite party witness esses; and that the legislative intent behind hind these provisions is to perm ermit an element of surprise. However, the the said argument of the petit etitioners is also incorrect as admittedly, in y, in the present case there was no no element of surprise left. The record bears o ars out that the Police Complaint fil t filed by the Petitioners against the Responde ndent and the subsequent E-mail ail sent to ACP Gurguram pre- date the Writt ritten Statement and Counter Claim Claim, wherein not only the fact of existence o ce of the video clipping is explici plicitly mentioned but also the contents of th f the same are elaborated. Thus, d us, despite admitted knowledge of these doc documents/ evidence, the same me was neither disclosed nor produced. Fur . Further, this shows that the same ame is also in knowledge of the Respondent (a nt (as admitted by the Petitioners in rs in para (xi), pg. 18 of the Civil SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document Revision). Hen ence, the entire case of the petitio etitioners based on the plea that Page 25 of 31 31 (cid:1) the objective b ive behind producing the video at th at the time of cross-examination is to affect an art. an element of surprise, falls apart. 36. To sum up, from the abov above discussion it is clear that the Petitioner ners are barred from subsequently ntly relying upon any document in their knowl owledge, possession or power unle unless the same was disclosed at the time of fili f filing of the Written Statement/Co t/Counter Claim save and except by leave of C of Court which is subject to the the defendants establishing a reasonable ca e cause for non-disclosure. From th m the perusal of the facts, it is clear that Peti Petitioners did not at any given tim time, even aver to the existence of any reasona sonable cause. 37. In addition to the judgme gments cited by ld. Counsel for the responden ndent, the above view(s) taken by by this Court are supported by the following ing judgments/ precedential case l se law: Reliance is placed upon judgment of H of Hon’ble Supreme Court in “Sud “Sudhir Kumar @ S. Baliyan Vs. Vinay Kumar G ar G.B.” (2021) 13 SCC 71, relevant vant part of which is as under:- “9.2. At the outset, it is required t ired to be noted that as such the said application for leave to pro o produce on record additional documents was preferred by the y the appellant herein, original plaintiff under Order 7 Rule 14(3 14(3) CPC. However, considering Order 11 Rule 1 as applicable t ble to the commercial suits by which the Civil Procedure Code Code has been amended with respect to the suits before the Co e Commercial Court and in view of Section 16 of the Commercia ercial Courts Act, Order 7 Rule 14(3) CPC shall have no applicatio cation at all. After Order 11 Rule 1 has been amended with resp respect to the suits before the SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document Page 26 of 31 31 (cid:1) Commercial Courts and a specif pecific provision/procedure has been prescribed with respect ect to the suits before the commercial division and before fore the Commercial Court, the provision of the Code of Civil Proc Procedure as has been amended by the Commercial Courts Act, 20 t, 2015 shall have to be followed and any provision of any rule of le of the jurisdiction of the High Court or any amendment to the C he Code of Civil Procedure by the State Government which is in con n conflict of the Code of the Civil Procedure as amended by Co Commercial Courts Act, the provision of the Code of the Civi Civil Procedure as amended by the Commercial Courts Act shall hall prevail. Therefore, Order 11 Rule 1 as amended by the ame amendment in the Commercial Courts Act, with respect to the s the suits before the commercial division and the Commercial Cou Court, the provisions of Order 7 Rule 14(3) shall not be applicable able at all. Therefore as such the plaintiff applied the wrong prov provision seeking leave of the court to place on record the addi additional documents. However, considering the fact that the thereafter, both the learned Commercial Court as well as th as the High Court treated and considered and even applied Orde Order 11 Rule 1 CPC as amended by the Commercial Courts Act an ct and as applicable to the suits filed before the commercial divis fil division, Commercial Court, we proceed to consider the appl application submitted by the appellant herein, original plain plaintiff, as if the same was submitted under Order 11 Rule 1(4 le 1(4) CPC. 9.3. It is true that Order 11 Rule Rule 1 CPC as applicable to the commercial suits brought abou bout a radical change and it mandates the plaintiff to file file a list of all documents, photocopies of all documents, in it , in its power, possession, control or custody, pertaining to the suit, suit, along with the plaint and a procedure provided under Order rder 11 Rule 1 is required to be SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document followed by the plaintiff and the fo the defendant, when the suit is Page 27 of 31 31 (cid:1) the commercial suit… xxx 9.5. Order 11 Rule 1(5) further pro r provides that the plaintiff shall not be allowed to rely on docu documents, which were in the plaintiff's power, possession, co n, control or custody and not disclosed along with plaint or wit r within the extended period set out above, save and except by le by leave of court and such leave shall be granted only upon pon the plaintiff establishing reasonable cause for non-disclos isclosure along with the plaint. Therefore on combined reading ing of Order 11 Rule 1(4) read with Order 11 Rule 1(5), it emerg merges that (i) in case of urgent filings the plaintiff may seek le fil ek leave to rely on additional documents; (it) within thirty day y days of filing of the suit; (iii) making out a reasonable cause fo se for non-disclosure along with plaint.” 38. Reliance may be placed u d upon judgment of Delhi High Court in “Nit “Nitin Gupta Vs. Texmaco Infrastr rastructure & Holding Limited” 2019 SCC OnLi OnLine Del 8367, wherein it has bee been held as under:- “38. Unless, the Commercial Divis Divisions, while dealing with the commercial suits, so start enfo enforcing Rules legislated for commercial suits, and refuse to en to entertain applications for late filing of documents, especially w fil lly with respect to documents of suspicious character and continu ntinue to show leniency in the name of 'interest of justice' and 'a nd 'a litigant ought not to suffer for default of advocate', the c fo he commercial suits will start suffering from the same malady w ady with which the ordinary suits have come to suffer and owing wing whereto the need for the Commercial Courts Act, 2015 was was felt. Commercial Division is thus not required to entertain or in or allow applications for late SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document Page 28 of 31 31 (cid:1) filing of documents, without fil hout any good cause being established for non-disclosure th e thereof along with pleadings. The plaintiff herein has utterly terly failed in this regard. The application nowhere explains as s as to why the plaintiff, if had obtained the said letter from from the defendant, did not remember the same and make d ke disclosure of the same at the time of filing the police complaint laint and/or at the time of filing of this suit, even if the letter had had been misplaced or was not immediately available. The form p orm prescribed for filing affidavit of documents requires a litigant i ant in a commercial suit to, even if not immediately possessed of a of a relevant document, disclose the same. A litigant who fails t ils to do so and also does not satisfy the Court while seeking to g to belatedly file the document, why no disclosure of such docum ocument was made, cannot be ts. permitted to so file documents. 39. Order XIII Rules (1) & (2) of t of the CPC as it existed prior to amendment with effect from 1 m 1st July, 2002, required the documents to be filed at or befo before the settlement of issues and no documents could be receiv eceived at any subsequent stage unless "good cause was shown to n to the satisfaction of the Court for non-production thereof". Po fo . Post amendment with effect from 1s July, 2002 of CPC, vide O fro ide Order VII Rule 14(1)&(3) and Order VIII Rule 1A (1)&(3) a pl a plaintiff was required to file documents along with plaint and and a defendant required to file documents along with written tten statement and documents were not permitted to be received eived thereafter without leave of the Court. Prior to 2002, the p he parties, if had not filed the document prior to settlement o nt of issues, were required to satisfy the Court as to why the do e document was not filed till the stage of settlement of issues a es and were not required by language of Order XIII Rule (2 le (2) to satisfy whether the SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document Page 29 of 31 31 (cid:1) document was within their know knowledge or not. I emphasise, only reason for 'non-production' w ion' was to be stated and not the reason for 'non-disclosure'. Thoug hough with effect from 1st July, 2002, for late filing of documents ents only leave of the Court was required to be taken but the test test continued to be applied by the Courts for granting such leave leave continued to be as prior to 2002 i.e. of reasons for 'non-prod production' of documents at the stage provided therefor. Order der XI Rule (1) of the CPC as applicable to commercial suits suits brought about a radical change. The late filing of docume cuments thereunder is permitted applying the test of reasonable ble cause of 'non-disclosure' of the document at the stage pro provided for filing thereof. An applicant now is required to sati satisfy the Court as to why the document was not in his knowled owledge and if in his knowledge why was the document not discl isclosed at the appropriate time. Thereunder, documents, even if n if not immediately available, are required to be disclosed.” 39. Reliance is also placed up d upon judgment of Delhi High Court in “Sar “Saregama India Limited Vs. ZEE ZEE Entertainment Enterprises Limited” 2023 023 SCC OnLine Del 2437, wherein rein it is held as follows:- “38. The plaintiff has invoked sub d sub-Rule (1) (c) (ii) of Order XI Rule 1 read with sub-Rule (5) of O ) of Order XI Rule 1 of the CPC to file additional documents. As is ev fil is evident from the passages set out above, it has specifically be ly been pleaded by the plaintiff that the aforesaid documents ar ts are being filed to counter the case set up by the defendant and and hence, could not be filed at the time of filing of the suit. Ho it. However, no explanation has been given by the plaintiff as to w to why the aforesaid documents were not filed along with the repl replication. Further, the plaintiff SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document Page 30 of 31 31 (cid:1) has failed to provide any reaso reasonable cause for filing the aforesaid documents at this his stage, 5 years after the replication was filed. 39. In a commercial suit, the plai plaintiff cannot be permitted to file additional documents at an fil t any stage of the suit on the ground that the same are in resp response to the case set up by the defendant in the written state statement. Permitting a party to file additional documents at a fil at any stage would make a complete mockery of Order XI o XI of the CPC as applicable to commercial suits. The whole objec object of the aforesaid provisions of the CPC pertaining to commer mercial suits would be defeated if a party is permitted to file ad ile additional documents at any stage of the suit.” 40. Thus, as the petitioners/ d rs/ defendants had not disclosed or relied upon pon the video clipping in their ple pleadings or documents placed before the Cou Court, they could not be permitted itted to rely upon the said video clipping/ evide evidence of such nature. Further, th r, there is Non-compliance with Section 65B o B of Indian Evidence Act. No certi certificate under Section 65 was tendered to e to establish the authenticity of el f electronic evidence making it admissible. Th The procedural requirements as s as stipulated for Commercial Suit have not not been followed. Since the case ase is a commercial suit, it must adhere to Ord Order XI CPC as amended which hich mandates prior disclosure, discovery and and inspection of documents, in s, including electronic records. Order XI Rule Rule 6(3) further requires a dec declaration on oath regarding electronic evi evidence, which was also not co t complied with. As such, the SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document Page 31 of 31 31 (cid:1) Defendants have been correctly barred from from confronting witness with video clipping ing, given the procedural lapses. 41. 42. Dismissed. Pending application(s) if an
Decision
if any also stand(s) disposed of. 21.04.2025 Sunena (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document