IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH M/s Lamba Exports Pvt. Ltd. & Another M/s Kristan Auto CORAM: Present:- NIDHI GUPTA, J. Constitution of India challenging the order dated 22.09.2023 (Annexure P1) passed by Commercial Court/ Exclusive Commercial Court at Gurugram exercising jurisdiction under the Commercial Courts Act, 2015 whereby the objection raised by the counsel for the respondent/plaintiff been denied examination of 2. had filed a suit dated 30.05.2022 (Annexure P2) against the IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of M/s Lamba Exports Pvt. Ltd. & Another Vs. M/s Kristan Auto HON’BLE MS. JUSTICE NIDHI GUPTA Mr. Lokesh Sinhal, Advocate Mr. Sukhandeep Singh, Advocate for the petitioners. Mr. Amit Jhanji, Senior Advocate Ms. Triyyambika Rao, Advocate Ms. Nandita Verma, Advocate for the respondent. *** NIDHI GUPTA, J. Present revision petition under Article 227 of the Constitution of India has been filed by the defendants/landlords the order dated 22.09.2023 (Annexure P1) passed by Commercial Court/ Additional District Judge Exclusive Commercial Court at Gurugram exercising jurisdiction under the Commercial Courts Act, 2015 (hereinafter referred to as ‘the Act whereby the objection raised by the counsel for the respondent/plaintiff/tenant has been accepted been denied the permission to put a video clip examination of plaintiff/PW1. Brief facts of the case are had filed a suit dated 30.05.2022 (Annexure P2) against the IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR-6805-2023 (O&M) Reserved on: 27.03.2025 Date of pronouncement: 21.04.2025 ...Petitioner(s) ...Respondent(s) HON’BLE MS. JUSTICE NIDHI GUPTA , Advocate Mr. Sukhandeep Singh, Advocate Advocate with Ms. Triyyambika Rao, Advocate Ms. Nandita Verma, Advocate petition under Article 227 of the filed by the defendants/landlords the order dated 22.09.2023 (Annexure P1) passed by the Additional District Judge-cum-Presiding Judge Exclusive Commercial Court at Gurugram exercising jurisdiction under the (hereinafter referred to as ‘the Act’), whereby the objection raised by the counsel for the has been accepted; and the petitioners have video clip during the cross- Brief facts of the case are that the respondent/plaintiff had filed a suit dated 30.05.2022 (Annexure P2) against the 31 that the respondent/plaintiff had filed a suit dated 30.05.2022 (Annexure P2) against the SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document petitioners/defendants before the Commercial Court seeking recovery of Rs.1,39,94,230/ Rs.2,12,400/- interest @ 18% per annum. The said suit was filed under the Commercial Courts Act, 2015. Facts as pleaded in the plaint inducted as a tenant in the suit premises and for that purpose a dated 24.12.2018 was executed for a period of 9 years. the lease deed there was a lock commencement of the lease deed. the premises for operating an Audi vehicle workshop. Rs.22 lakh was paid by the respondent. dispute arose during the COVID period 31.08.2021, vacate the premises by 15.01.2022. On 17.01.2022, another email was sent by the respondent to the petitioner and ready for handover. officially handed over to the petitioner No.1. respondent in the plaint that despite vacating the premises, the security deposit of Rs.1,32,00,000/ Accordingly, the respondent had filed the present suit 3. written statement has not only caused damage to the suit property but movable properties therefrom. Counter claim petitioners/defendants before the Commercial Court seeking recovery of Rs.1,39,94,230/- which includes Rs.1,32,00,000/ - for sewerage repair cost; and Rs.5,81,830/ interest @ 18% per annum. The said suit was filed under the Commercial Courts Act, 2015. Facts as pleaded in the plaint inducted as a tenant in the suit premises and for that purpose a dated 24.12.2018 was executed for a period of 9 years. the lease deed there was a lock-in period of 36 months from the commencement of the lease deed. The respondent/tenant/plaintiff used the premises for operating an Audi vehicle workshop. was paid by the respondent. As per the case of the plaintiff the dispute arose during the COVID period. As such, the respondent had informed the petitioner vacate the premises by 15.01.2022. On 17.01.2022, another email was sent by the respondent to the petitioners stating that the premises w and ready for handover. Pursuant to which, on 01 officially handed over to the petitioner No.1. respondent in the plaint that despite vacating the premises, the security deposit of Rs.1,32,00,000/- and sewerage repair costs were not refunded. Accordingly, the respondent had filed the present suit The petitioner/defendants written statement (Annexure P-3) wherein it was pleaded that the plaintiff has not only caused damage to the suit property but movable properties therefrom. Counter claim petitioners/defendants before the Commercial Court seeking recovery of which includes Rs.1,32,00,000/- as security deposit; e repair cost; and Rs.5,81,830/- as accumulated interest @ 18% per annum. The said suit was filed under the Commercial Courts Act, 2015. Facts as pleaded in the plaint were that plaintiff was inducted as a tenant in the suit premises and for that purpose a Lease Deed dated 24.12.2018 was executed for a period of 9 years. As per the terms of in period of 36 months from the espondent/tenant/plaintiff used the premises for operating an Audi vehicle workshop. An advance rent of As per the case of the plaintiff the . As such, vide email dated the respondent had informed the petitioners that he shall vacate the premises by 15.01.2022. On 17.01.2022, another email was sent stating that the premises were vacated Pursuant to which, on 01.02.2022, possession was officially handed over to the petitioner No.1. It was the pleaded case of the respondent in the plaint that despite vacating the premises, the security and sewerage repair costs were not refunded. Accordingly, the respondent had filed the present suit for recovery. The petitioner/defendants contested the suit and filed wherein it was pleaded that the plaintiff has not only caused damage to the suit property but has also stolen the movable properties therefrom. Counter claim (Annexure P-4) for recovery 31 petitioners/defendants before the Commercial Court seeking recovery of as security deposit; as accumulated interest @ 18% per annum. The said suit was filed under the Commercial was eed s per the terms of in period of 36 months from the espondent/tenant/plaintiff used An advance rent of As per the case of the plaintiff the ide email dated hat he shall vacate the premises by 15.01.2022. On 17.01.2022, another email was sent vacated .02.2022, possession was It was the pleaded case of the respondent in the plaint that despite vacating the premises, the security and sewerage repair costs were not refunded. filed wherein it was pleaded that the plaintiff has also stolen the for recovery SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document of Rs.2,79,25,536/ filed for: a) damages to property; b) unpaid rent for April 2020, May 2020 and January claim that the property was damaged beyond repair at time of handover; that there was theft of moveable property belonging to petitioner No.1; that there was damage to fire safety system, electr water harvesting and drainage system 4. respondent/plaintiff commenced in which Authorised Person of the (Annexure P5/Ex.PW1/A) in which he reiterated that the property was handed over to the petitioner During his cross Bhardwaj PW equipment were stolen from the premises for which a police complaint was also lodged. When the plaintiff witness denied the factum of stealing of electrical equipment, the defendant had put to him the 6). An objection was then raised by the since the video clip was not part of the written statement the same cannot now be put to the plaintiff witness. 5. Petition is that during the cross the petitioner had tried to confront him with a video recording stored in a of Rs.2,79,25,536/- along with interest @ 18% interest per annum damages to property; b) unpaid rent for April 2020, May 2020 and January 2022. It was the allegation of the petitioner claim that the property was damaged beyond repair at time of handover; that there was theft of moveable property belonging to petitioner No.1; that there was damage to fire safety system, electr water harvesting and drainage systems. During the course of trial, the evidence of the respondent/plaintiff commenced in which Authorised Person of the plaintiff-Firm, tendered Affidavit dated 13.03.2023 nexure P5/Ex.PW1/A) in which he reiterated that the property was handed over to the petitioners in its original condition without damage. cross-examination, a specific question was put to Bhardwaj PW-1 that during the occupation of the plaintiff various electrical were stolen from the premises for which a police complaint was also lodged. When the plaintiff witness denied the factum of stealing of electrical equipment, the defendant, in order t had put to him the disputed video clip in his cross examination . An objection was then raised by the counsel for the since the video clip was not part of the written statement the same cannot be put to the plaintiff witness. Thus, the bone of contention in the present Revision Petition is that during the cross-examination of Nitish Bhardwaj the petitioner had tried to confront him with a video recording stored in a 18% interest per annum was also damages to property; b) unpaid rent for April 2020, May 2020 2022. It was the allegation of the petitioners in the counter claim that the property was damaged beyond repair at time of handover; that there was theft of moveable property belonging to petitioner No.1; that there was damage to fire safety system, electrical system, sewerage, During the course of trial, the evidence of the respondent/plaintiff commenced in which PW1-Nitish Bhardwaj, tendered Affidavit dated 13.03.2023 nexure P5/Ex.PW1/A) in which he reiterated that the property was in its original condition without damage. , a specific question was put to Mr. Nitish that during the occupation of the plaintiff various electrical were stolen from the premises for which a police complaint was also lodged. When the plaintiff witness denied the factum of stealing of in order to confront the said witness, video clip in his cross examination (Annexure P- counsel for the respondent that since the video clip was not part of the written statement the same cannot bone of contention in the present Revision examination of Nitish Bhardwaj, counsel for the petitioner had tried to confront him with a video recording stored in a 31 was also damages to property; b) unpaid rent for April 2020, May 2020 in the counter claim that the property was damaged beyond repair at time of handover; that there was theft of moveable property belonging to petitioner No.1; ical system, sewerage, During the course of trial, the evidence of the Nitish Bhardwaj, tendered Affidavit dated 13.03.2023 nexure P5/Ex.PW1/A) in which he reiterated that the property was in its original condition without damage. Mr. Nitish that during the occupation of the plaintiff various electrical were stolen from the premises for which a police complaint was also lodged. When the plaintiff witness denied the factum of stealing of , - that since the video clip was not part of the written statement the same cannot bone of contention in the present Revision counsel for the petitioner had tried to confront him 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 which the counsel for the respondent had objected. impugned order dated 22.09.2023, the objection raised by counsel for the respondent/plaintiff was accepted and the petitioner/defendants were denied permission to put the video clipping to the PW1 examination. by the learned trial Court the form of Section 65B proving the authe Section 65B, no declaration under Order and b) since the video clip is not part of the written statement, Order as amended by the Commercial Courts Act bars production of such document. 6. that so far as Section 65 provision does not contemplate as to a required to be produced. by the petitioners at a later stage; as also contemplated/permitted by Hon'ble Supreme Court in latest judgment reported as " vs. T. Naseer @ Ors. (2023 INSC 988) certificate under Section 65 over. It has been held that a evidence which has been created now. It is just a need for the requirement of law to prove the electronic document already on record. to which the counsel for the respondent had objected. impugned order dated 22.09.2023, the objection raised by counsel for the respondent/plaintiff was accepted and the petitioner/defendants were denied permission to put the video clipping to the PW1 examination. The said objection of the respondent/plaintiff was accepted by the learned trial Court primarily on two grounds the form of Section 65B of the Indian Evidence Act had been tendered proving the authenticity of the video clipping , no declaration under Order XI since the video clip is not part of the written statement, Order as amended by the Commercial Courts Act bars production of such It is submitted by learned counsel for the petitioner so far as Section 65-B of the Indian Evidence Act is concerned, the said provision does not contemplate as to at which stage the certificate is required to be produced. As such, said certificate could have been produced by the petitioners at a later stage; as also contemplated/permitted by Hon'ble Supreme Court in latest judgment reported as " Naseer @ Nasir @ Thandiantavida @ Naseer Ors. (2023 INSC 988) SLP(Crl) No.6548 of 2022 certificate under Section 65-B can be produced at any stage if the trial is not over. It has been held that a certificate under Section 65 evidence which has been created now. It is just a need for the requirement of law to prove the electronic document already on record. Page 4 of 31 to which the counsel for the respondent had objected. Vide impugned order dated 22.09.2023, the objection raised by counsel for the respondent/plaintiff was accepted and the petitioner/defendants were denied permission to put the video clipping to the PW1 during his cross- The said objection of the respondent/plaintiff was accepted primarily on two grounds: a) that no certificate in of the Indian Evidence Act had been tendered nticity of the video clipping. Besides non-compliance of XI Rule 6(3) CPC had been filed; since the video clip is not part of the written statement, Order XI CPC as amended by the Commercial Courts Act bars production of such It is submitted by learned counsel for the petitioners B of the Indian Evidence Act is concerned, the said t which stage the certificate is As such, said certificate could have been produced by the petitioners at a later stage; as also contemplated/permitted by the Hon'ble Supreme Court in latest judgment reported as "State of Karnataka @ Naseer @ Umarhazi @ Hazi & SLP(Crl) No.6548 of 2022"; wherein it is held that B can be produced at any stage if the trial is not certificate under Section 65-B is not an evidence which has been created now. It is just a need for the requirement of law to prove the electronic document already on record. It is contended 31 Vide impugned order dated 22.09.2023, the objection raised by counsel for the respondent/plaintiff was accepted and the petitioner/defendants were - The said objection of the respondent/plaintiff was accepted a) that no certificate in of the Indian Evidence Act had been tendered of had been filed; CPC as amended by the Commercial Courts Act bars production of such s B of the Indian Evidence Act is concerned, the said t which stage the certificate is As such, said certificate could have been produced the State of Karnataka & held that B can be produced at any stage if the trial is not B is not an evidence which has been created now. It is just a need for the requirement It is contended SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document that as such objection of counsel for the respondent could not ha accepted for non 7. Court Act is concerned, it is sub-Rule 7(c) exception stipulating that produced by the defendants and relevant only 8. falls in the exception carved out under applicable to the Commercial Courts disputes exception under Order XI Rule 1(7)(c)(i) clearly states that the requirement to disclose documents in advance does not apply to documents used solely for video clipping being used for cross not have been disclosed earlier. petitioners to previously disclose the said evidence principles of cross confronting a witness with new evidence to test credibility. restructure approach undermines this fundamental right and truth seeking function of cross that as such objection of counsel for the respondent could not ha accepted for non-production of Certificate under section 65 As far as Order XI CPC as Court Act is concerned, it is contended that the Trial Court has overlooked (c) of Order XI Rule 1 which specifically provides stipulating that: (c) “nothing in this produced by the defendants and relevant only (i) for the cross-examination of the plaintiff's witnesses, (ii) in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or (iii) handed over to a witness merely to refresh his memory." Ld. Counsel submits that the case of the petitioner falls in the exception carved out under Order applicable to the Commercial Courts disputes xception under Order XI Rule 1(7)(c)(i) clearly states that the requirement to disclose documents in advance does not apply to documents used solely for cross-examining a plaintiff’s witness. Th video clipping being used for cross-examination not have been disclosed earlier. It is further petitioners to previously disclose the said evidence principles of cross-examination as the right to cross confronting a witness with new evidence to test credibility. restructure approach undermines this fundamental right and truth seeking function of cross-examination. that as such objection of counsel for the respondent could not have been ertificate under section 65-B. CPC as amended by the Commercial that the Trial Court has overlooked Rule 1 which specifically provides/ creates an this Rule shall apply to documents produced by the defendants and relevant only- examination of the plaintiff's witnesses, (ii) in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or (iii) handed over to a witness merely to refresh his Ld. Counsel submits that the case of the petitioners rder XI Rule 1 (7) (c) CPC as applicable to the Commercial Courts disputes. It is submitted that the xception under Order XI Rule 1(7)(c)(i) clearly states that the requirement to disclose documents in advance does not apply to examining a plaintiff’s witness. Thus, the examination of plaintiff’s witness, need further argued that in compelling the petitioners to previously disclose the said evidence, is violation of examination as the right to cross-examine includes confronting a witness with new evidence to test credibility. Trial Court’s restructure approach undermines this fundamental right and truth- 31 ve been amended by the Commercial that the Trial Court has overlooked / creates an documents (iii) handed over to a witness merely to refresh his SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document 9. CPC as amended by the Commercial Courts Act are pari already existing provisions of Order as well as Order High Court in " has held that these provisions requiring the parties to file documents along with pleadings and /or before the settlement of issues do to the documents produced for cross other party. provisions is to permit an element of surprise which is very the cross-examination of wi petitioners had not confronted the respondent with the video recording during his cross intent behind the pen drive would have been lost. If the respondent had admitted the video during his cross clipping would have been admitted into evidence and if the respondent had denied the said video clipping, then the petitioner proved the same during his evidence. Chander supra It is further submitted that the CPC as amended by the Commercial Courts Act are pari already existing provisions of Order VII Rule 14(4) Order XIII Rule 1(3) of the CPC. High Court in "Subhash Chander v. Bhagwan Yadav" 2010 (114) DRJ 306 has held that these provisions requiring the parties to file documents along with pleadings and /or before the settlement of issues do to the documents produced for cross-examination of the witnesses of the It has been held that the legislative intent behind these provisions is to permit an element of surprise which is very examination of witnesses. It is submitted that had not confronted the respondent with the video recording during his cross-examination, the element of surprise which was the intent behind the pen drive would have been lost. If the respondent had itted the video during his cross-examination then the said video clipping would have been admitted into evidence and if the respondent had denied the said video clipping, then the petitioner proved the same during his evidence.Relevant Paras 8 Chander supra read as follows: “8. Order 7 Rule 14(4), Order 8 Rule 1 (A) (4), as well as Order 13 Rule 1(3) provide that the provisions requiring parties to file documents along with their pleadings and/or before the settlement of issues do not apply to documents produced for the cross-examination of the witnesses of the other the same effect, Section 145 of the Evidence Act also permits It is further submitted that the provisions of Order XI CPC as amended by the Commercial Courts Act are pari-materia to the Rule 14(4);Order VIII Rule 1(A)(4); Rule 1(3) of the CPC. It is submitted that the Delhi Subhash Chander v. Bhagwan Yadav" 2010 (114) DRJ 306 has held that these provisions requiring the parties to file documents along with pleadings and /or before the settlement of issues do not apply examination of the witnesses of the It has been held that the legislative intent behind these provisions is to permit an element of surprise which is very important for It is submitted that in case the had not confronted the respondent with the video recording examination, the element of surprise which was the intent behind the pen drive would have been lost. If the respondent had examination then the said video clipping would have been admitted into evidence and if the respondent had denied the said video clipping, then the petitioners would have Relevant Paras 8 to 11 of Subhash 8. Order 7 Rule 14(4), Order 8 Rule 1 (A) (4), as well as Order 13 Rule 1(3) provide that the provisions requiring parties to file documents along with their pleadings and/or before the do not apply to documents produced for examination of the witnesses of the other party. To the same effect, Section 145 of the Evidence Act also permits 31 8. Order 7 Rule 14(4), Order 8 Rule 1 (A) (4), as well as Order 13 Rule 1(3) provide that the provisions requiring parties to file documents along with their pleadings and/or before the do not apply to documents produced for party. To the same effect, Section 145 of the Evidence Act also permits SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document for the first time during cross examination. If the witn documents to be put to the witnesses, though it does not provide whether such documents shoul court record or can be produced / shown for the first time. However, in view of the unambiguous provisions of the CPC, it cannot be held that the document cannot be produced/shown for the first time during cross examination. If the witn whom the said document is put, identifies his handwriting/ signature or any writing/ signatures of any other person on the said document or otherwise admits the said documents, the same poses no problem, because then the document stands admitted into evidence. However, the question arises as to what is the course to be followed if the witness denies the said document. Is the document to be kept on the court file or to be returned to the party producing the same? 9. This question also in my view is a cannot possibly be said that the document should be returned to the party. If the document is so returned it will not be possible for the court to at a subsequent stage consider as to what was the document put and what was d witness. In a given case, it is possible that the answer of the witness on being confronted with the document may not be unambiguous. It may still be open to the court to consider whether on the basis of the said answer of the witness, the document stands admitted or proved or not and/or what is the effect to be given to the said answer. Thus, the document cannot be returned and has to be necessarily placed on the court file. 10. The next question which arises is that if the document is so placed on the court file, whether it becomes / is to be treated as the document of the party producing the same and is that party entitled to prove the said document notwithstanding documents to be put to the witnesses, though it does not provide whether such documents should be already on the court record or can be produced / shown for the first time. However, in view of the unambiguous provisions of the CPC, it cannot be held that the document cannot be produced/shown for the first time during cross examination. If the witness to whom the said document is put, identifies his handwriting/ signature or any writing/ signatures of any other person on the said document or otherwise admits the said documents, the same poses no problem, because then the document stands o evidence. However, the question arises as to what is the course to be followed if the witness denies the said document. Is the document to be kept on the court file or to be returned to the party producing the same? 9. This question also in my view is also not difficult to answer. It cannot possibly be said that the document should be returned to the party. If the document is so returned it will not be possible for the court to at a subsequent stage consider as to what was the document put and what was denied by the witness. In a given case, it is possible that the answer of the confronted with the document may not be unambiguous. It may still be open to the court to consider whether on the basis of the said answer of the witness, the ument stands admitted or proved or not and/or what is the effect to be given to the said answer. Thus, the document cannot be returned and has to be necessarily placed on the 10. The next question which arises is that if the document is so ced on the court file, whether it becomes / is to be treated as the document of the party producing the same and is that party entitled to prove the said document notwithstanding 31 documents to be put to the witnesses, though it does not d be already on the court record or can be produced / shown for the first time. However, in view of the unambiguous provisions of the CPC, it cannot be held that the document cannot be produced/shown ess to whom the said document is put, identifies his handwriting/ signature or any writing/ signatures of any other person on the said document or otherwise admits the said documents, the same poses no problem, because then the document stands o evidence. However, the question arises as to what is the course to be followed if the witness denies the said document. Is the document to be kept on the court file or to be lso not difficult to answer. It cannot possibly be said that the document should be returned to the party. If the document is so returned it will not be possible for the court to at a subsequent stage consider as to enied by the witness. In a given case, it is possible that the answer of the confronted with the document may not be unambiguous. It may still be open to the court to consider whether on the basis of the said answer of the witness, the ument stands admitted or proved or not and/or what is the effect to be given to the said answer. Thus, the document cannot be returned and has to be necessarily placed on the 10. The next question which arises is that if the document is so ced on the court file, whether it becomes / is to be treated as the document of the party producing the same and is that party entitled to prove the 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, as required by law, or the use of the said document is to be confined only to confront the witness to whom it was put and it cannot be permitted to be proved by that party in its own evidence. 11. The legislative intent behind order 7 Rule 14(4) and Order 8 Rule 1A (4) and Order 13 Rule 1(3) element of surprise, which is very important in the cross examination of witnesses. A litigant that if the document on the basis whereof he seeks to demolish the case of the adversary is filed on the co pleadings or before framing of issues, with resultant knowledge to the adversary, the adversary may come prepared with his replies thereto. On the contrary, if permitted to show/produce the document owing to element of surprise, the a witness, may blurt out the truth. Once it is held that a litigant is entitled to such right, in my view it would be too harsh to make the same subject to the condition that the litigant would thereafter be deprived of the right to prove the sai himself. Thus, if the witness to whom the document is put in cross examination fails to admit the document, the party so putting the document, in its own evidence would be prove the same. However, the same should not be understood as laying down that such party for the said reason and to prove the said document would be entitled to lead evidence which otherwise it is not entitled to as per scheme of CPC and evidence law. For instance, if the document is shown by the defendant to the plaintiff's witness and the plaintiff's witness denies the same, the defendant can prove the document in his own evidence. Conversely, if the plaintiff puts the document to the defendant's witness and the defendant's witness denies the same, the plaintiff if entitled to lead rebuttal evidence would in having not filed the same earlier, as required by law, or the use document is to be confined only to confront the witness to whom it was put and it cannot be permitted to be proved by that party in its own evidence. The legislative intent behind order 7 Rule 14(4) and Order 8 Rule 1A (4) and Order 13 Rule 1(3) appears to be to permit an which is very important in the cross tion of witnesses. A litigant may well be of the opinion that if the document on the basis whereof he seeks to demolish the case of the adversary is filed on the court record along with pleadings or before framing of issues, with resultant knowledge to the adversary, the adversary may come prepared with his replies thereto. On the contrary, if permitted to show/produce the document owing to element of surprise, the adversary or witness, may blurt out the truth. Once it is held that a litigant is entitled to such right, in my view it would be too harsh to make the same subject to the condition that the litigant would thereafter be deprived of the right to prove the said documents himself. Thus, if the witness to whom the document is put in cross examination fails to admit the document, the party so putting the document, in its own evidence would be entitled to prove the same. However, the same should not be understood s laying down that such party for the said reason and to prove the said document would be entitled to lead evidence which otherwise it is not entitled to as per scheme of CPC and evidence law. For instance, if the document is shown by the plaintiff's witness and the plaintiff's witness denies the same, the defendant can prove the document in his own evidence. Conversely, if the plaintiff puts the document to the defendant's witness and the defendant's witness denies the if entitled to lead rebuttal evidence would in 31 having not filed the same earlier, as required by law, or the use document is to be confined only to confront the witness to whom it was put and it cannot be permitted to be The legislative intent behind order 7 Rule 14(4) and Order 8 appears to be to permit an which is very important in the cross may well be of the opinion that if the document on the basis whereof he seeks to demolish urt record along with pleadings or before framing of issues, with resultant knowledge to the adversary, the adversary may come prepared with his replies thereto. On the contrary, if permitted to show/produce dversary or witness, may blurt out the truth. Once it is held that a litigant is entitled to such right, in my view it would be too harsh to make the same subject to the condition that the litigant would d documents himself. Thus, if the witness to whom the document is put in cross examination fails to admit the document, the party so entitled to prove the same. However, the same should not be understood s laying down that such party for the said reason and to prove the said document would be entitled to lead evidence which otherwise it is not entitled to as per scheme of CPC and evidence law. For instance, if the document is shown by the plaintiff's witness and the plaintiff's witness denies the same, the defendant can prove the document in his own evidence. Conversely, if the plaintiff puts the document to the defendant's witness and the defendant's witness denies the if entitled to lead rebuttal evidence would in SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document 10. "Havovi Kesri Sethna v. Kesri has held that the very purpose of cross document of the other side inspected by that party earlier. 11. Abdul Wahid v. Nilofer and Anr. (2023 SCC Online SC 1672)" in the said judgment, Order VIII Rule 1 Apex Court has held that so long as the document has been produced for the limited purpose of cross witness at the stand pleadings made, the same cannot be said to fly in the face of this established position. his rebuttal evidence be entitled to prove the same. However, if the plaintiff has no right of rebuttal evidence in a particular case, the plaintiff would not be entitled to another chance to prove the document. In such a case, the plaintiff has to make a choice of either relying upon the surprise element in showing the document or to file the document along with its pleadings and/or before the settlement of issues and to prove the same. Similarly, if the defendant chooses to confront the document to the plaintiffs witness in rebuttal, merely because the witness denies the document would not entitle the defendant to a chance to prove the document subsequently. It is pointed out that similarly the Bombay High Court in Kesri Sethna v. Kesri Gustad Sethna" has held that the very purpose of cross-examination will be frustrated if the document of the other side which is to be confronted nspected by that party earlier. Ld. Counsel for the petitioners then refers Abdul Wahid v. Nilofer and Anr. (2023 SCC Online SC 1672)" in the said judgment, while considering the scope of Order Rule 1-A(4)(a); Order XIII Rule 1(3) of the CPC, 1908 has held that so long as the document has been produced for the limited purpose of cross-examination or to jog the memory of the witness at the stand, and is not completely divor pleadings made, the same cannot be said to fly in the face of this established position. Save and except the cross his rebuttal evidence be entitled to prove the same. However, if the plaintiff has no right of rebuttal evidence in a particular case, the plaintiff would not be entitled to another chance to t. In such a case, the plaintiff has to make a choice of either relying upon the surprise element in showing the document or to file the document along with its pleadings and/or before the settlement of issues and to prove the same. dant chooses to confront the document to the plaintiffs witness in rebuttal, merely because the witness denies the document would not entitle the defendant to a chance to prove the document subsequently.” (Emphasis added) similarly the Bombay High Court in Gustad Sethna" Law Finder Doc ID # 261408, examination will be frustrated if the is to be confronted, is shown to or Ld. Counsel for the petitioners then refers to "Mohd. Abdul Wahid v. Nilofer and Anr. (2023 SCC Online SC 1672)" to submit that while considering the scope of Order VII Rule 14 (4); Rule 1(3) of the CPC, 1908 the Hon’ble has held that so long as the document has been produced for examination or to jog the memory of the is not completely divorced from or foreign to the pleadings made, the same cannot be said to fly in the face of this Save and except the cross-examination part of a civil 31 his rebuttal evidence be entitled to prove the same. However, if the plaintiff has no right of rebuttal evidence in a particular case, the plaintiff would not be entitled to another chance to t. In such a case, the plaintiff has to make a choice of either relying upon the surprise element in showing the document or to file the document along with its pleadings and/or before the settlement of issues and to prove the same. dant chooses to confront the document to the plaintiffs witness in rebuttal, merely because the witness denies the document would not entitle the defendant to a (Emphasis added) similarly the Bombay High Court in Law Finder Doc ID # 261408, examination will be frustrated if the is shown to or "Mohd. to submit that ); the Hon’ble has held that so long as the document has been produced for examination or to jog the memory of the ced from or foreign to the pleadings made, the same cannot be said to fly in the face of this examination part of a civil SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document suit, at no other point shall such confrontation be allowed without such document havi the Court. Reliance in particular is placed upon judgment:- f 12. required to be filed as per Order Commercial Courts Act, the said requirement applies to the documents disclosed and not to other documents. Since the video clip sought to be put to the plaintiff's witness in cross document and falls within the exception under Order as amended, the provisions of Order argued that t applies only to electronic records forming part of disclosed evidence requiring on oath declaration for proof. Since defendants were not yet leading evidence but merely confronting the witness, this provision was inapplicable. suit, at no other point shall such confrontation be allowed without such document having accompanied the plaint/written statement filed before Reliance in particular is placed upon “49. A reading of the judgments above would imply that substance is what the courts need to look into, and theref reference to the production of documents, in the considered view of this court, so long as the document is produced for the limited purpose of effective cross memory of the witness at the stand is not completely divorced from or foreign to the pleadings made, the same cannot be said to fly in the face of this established proposition. It is lastly contended that required to be filed as per Order XI Rule 6(3) CPC as amended by the Commercial Courts Act, the said requirement applies to the documents and not to other documents. Since the video clip sought to be put to the plaintiff's witness in cross-examination is not a and falls within the exception under Order as amended, the provisions of Order XI Rule 6(3) would not apply. argued that thus, there is misapplication of Order applies only to electronic records forming part of disclosed evidence requiring on oath declaration for proof. Since defendants were not yet leading evidence but merely confronting the witness, this provision was inapplicable. Page 10 of 31 suit, at no other point shall such confrontation be allowed without such ng accompanied the plaint/written statement filed before Reliance in particular is placed upon following para 49 of said 49. A reading of the judgments above would imply that substance is what the courts need to look into, and therefore, in reference to the production of documents, in the considered view of this court, so long as the document is produced for the limited purpose of effective cross-examination or to jog the memory of the witness at the stand is not completely divorced rom or foreign to the pleadings made, the same cannot be said to fly in the face of this established proposition.” contended that as regards the declaration Rule 6(3) CPC as amended by the Commercial Courts Act, the said requirement applies to the documents and not to other documents. Since the video clip sought to be examination is not a ‘disclosed’ and falls within the exception under Order XI Rule 1 (7) (c) CPC Rule 6(3) would not apply. It is isapplication of Order XI Rule 6(3); which applies only to electronic records forming part of disclosed evidence requiring on oath declaration for proof. Since defendants were not yet leading evidence but merely confronting the witness, this provision was 31 suit, at no other point shall such confrontation be allowed without such ng accompanied the plaint/written statement filed before said 49. A reading of the judgments above would imply that ore, in reference to the production of documents, in the considered view of this court, so long as the document is produced for the examination or to jog the memory of the witness at the stand is not completely divorced rom or foreign to the pleadings made, the same cannot be SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document 13. respondent/plaintiff for the petitioner regarding element of surprise, is ill respondent was already aware of the video clipping. the petitioner had P7) in which he had referred to the alleged video recording. The petitioner had also sent an email dated 08.04.2022 (Annexure P8) copy to the Deputy Commissi damage caused by the respondent to the demised premises in which again the video contained in a Compact Disk and pen drive was mentioned. It is contended that therefore, there was no “ to what has been 14. Civil Suit (Annexure P2) was filed on (Annexure P3) was filed on 02.09.2022 also filed on 02.09.2022; which was accompanied by Statement of Truth as required under Order declaration/Statement of Truth was made by the petitioner to the effect that: Per contra, learned Senior Counsel representing the respondent/plaintiff firstly submits that the argument of learned counsel for the petitioner regarding element of surprise, is ill respondent was already aware of the video clipping. petitioner had previously filed a complaint dated 24.03.2022 (Annexure P7) in which he had referred to the alleged video recording. The petitioner had also sent an email dated 08.04.2022 (Annexure P8) copy to the Deputy Commissioner of Police in respect of the alleged damage caused by the respondent to the demised premises in which again the video contained in a Compact Disk and pen drive was mentioned. It is contended that therefore, there was no “element of surprise to what has been sought to be portrayed by the petitioners. It is next submitted by learned Senior Counsel that the Civil Suit (Annexure P2) was filed on 30.05.2022 (Annexure P3) was filed on 02.09.2022; counter claim ( also filed on 02.09.2022; which was accompanied by Statement of Truth as required under Order XI CPC on 02.09.2022 itself declaration/Statement of Truth was made by the petitioner to the effect “5. I say that all the documents in my power, possession, control or custody, pertaining to the facts and circumstances of the counter claim initiated by the defendant have been disclosed and copies thereof are annexed with the list of documents filed with the counter claim, and that the defendant rned Senior Counsel representing the the argument of learned counsel for the petitioner regarding element of surprise, is ill-founded as the respondent was already aware of the video clipping. This was so because filed a complaint dated 24.03.2022 (Annexure P7) in which he had referred to the alleged video recording. The petitioner had also sent an email dated 08.04.2022 (Annexure P8) to the ACP with oner of Police in respect of the alleged damage caused by the respondent to the demised premises in which again the video contained in a Compact Disk and pen drive was mentioned. It is element of surprise” left contrary by the petitioners. It is next submitted by learned Senior Counsel that the 30.05.2022 in which written statement ; counter claim (Annexure P4) was also filed on 02.09.2022; which was accompanied by Statement of Truth as on 02.09.2022 itself in which a positive declaration/Statement of Truth was made by the petitioner to the effect “5. I say that all the documents in my power, possession, control or custody, pertaining to the facts and circumstances of the counter claim initiated by the defendant have been disclosed and copies thereof are annexed with the list of the counter claim, and that the defendant 31 rned Senior Counsel representing the the argument of learned counsel founded as the because filed a complaint dated 24.03.2022 (Annexure P7) in which he had referred to the alleged video recording. The petitioner to the ACP with oner of Police in respect of the alleged damage caused by the respondent to the demised premises in which again the video contained in a Compact Disk and pen drive was mentioned. It is ary It is next submitted by learned Senior Counsel that the in which written statement Annexure P4) was also filed on 02.09.2022; which was accompanied by Statement of Truth as in which a positive declaration/Statement of Truth was made by the petitioner to the effect “5. I say that all the documents in my power, possession, control or custody, pertaining to the facts and circumstances of the counter claim initiated by the defendant have been disclosed and copies thereof are annexed with the list of the counter claim, and that the defendant SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document 15. proceedings, a Statement of Truth proceedings to obviate the such, there could have been 16. provision of Order of Order XI Rule 1 which the defendant cannot be allowed to rely on documents which are in his possession, control or custody and are not disclosed with statement or counterclaim, leave shall be granted only upon the defendant cause for non It is contended have been relied upon by the petitioner except with leave of Court leave could have been granted only upon the petitioner establishing reasonable cause for non written statement and counterclaim above, it is clear that prior to filing of the written statement and counterclaim on 02.09.2022, the petitioner was already in knowledge and possession of the said video clipping/pen drive as evident from his complaint dated 24.03. does not have any other documents in its power, possession, control or custody.”. Learned Senior Counsel submits that unlike civil proceedings, a Statement of Truth is required oceedings to obviate the very element of surprise. such, there could have been no element of surprise. Learned Senior Counsel further submits that the provision of Order XI Rule 1(7) CPC has to be read along with the provisions Rule 1 (10) CPC in which a definite exception is created the defendant cannot be allowed to rely on documents which are in possession, control or custody and are not disclosed with statement or counterclaim, “save and except by leave of Court and such leave shall be granted only upon the defendant cause for non-disclosure along with the written statement or counterclaim”. contended that therefore, the said pen drive/video clipping could not have been relied upon by the petitioner except with leave of Court leave could have been granted only upon the petitioner establishing reasonable cause for non-disclosure of the said video clipping a written statement and counterclaim. Moreover, above, it is clear that prior to filing of the written statement and counterclaim on 02.09.2022, the petitioner was already in knowledge and possession of the said video clipping/pen drive as evident from his complaint dated 24.03.2022 (Annexure P7) and email dated 08.04.2022 does not have any other documents in its power, possession, Learned Senior Counsel submits that unlike civil is required to be filed in commercial element of surprise. It is contended that as element of surprise. Learned Senior Counsel further submits that the CPC has to be read along with the provisions CPC in which a definite exception is created as per the defendant cannot be allowed to rely on documents which are in possession, control or custody and are not disclosed with the written save and except by leave of Court and such leave shall be granted only upon the defendant establishing reasonable disclosure along with the written statement or counterclaim”. , the said pen drive/video clipping could not have been relied upon by the petitioner except with leave of Court, which leave could have been granted only upon the petitioner establishing disclosure of the said video clipping along with his Moreover, from the facts as shown above, it is clear that prior to filing of the written statement and counterclaim on 02.09.2022, the petitioner was already in knowledge and possession of the said video clipping/pen drive as evident from his 2022 (Annexure P7) and email dated 08.04.2022 31 does not have any other documents in its power, possession, Learned Senior Counsel submits that unlike civil to be filed in commercial It is contended that as Learned Senior Counsel further submits that the CPC has to be read along with the provisions as per the defendant cannot be allowed to rely on documents which are in the written save and except by leave of Court and such establishing reasonable disclosure along with the written statement or counterclaim”. , the said pen drive/video clipping could not , which leave could have been granted only upon the petitioner establishing long with his from the facts as shown above, it is clear that prior to filing of the written statement and counterclaim on 02.09.2022, the petitioner was already in knowledge and possession of the said video clipping/pen drive as evident from his 2022 (Annexure 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). cannot be read in exclusion of Order 17. of the Commercia are as follows: (Annexure P8). It is reiterated that provision of Order cannot be read in exclusion of Order XI Rule Learned Senior Counsel further submits of the Commercial Courts Act stipulates disclosure. are as follows:- “6. Electronic records.—(1) In case of disclosures and inspection of Electronic Records (as define Technology Act, 2000 (21 of 2000)), furnishing of printouts shall be sufficient compliance of the above provisions. (2) At the discretion of the parties or where required (when parties wish to rely on audio or video content), copies of electronic records may be furnished in electronic form either in addition to or in lieu of printouts. (3) Where Electronic Records form part of documents disclosed, the declaration on oath to be filed by a party shall specify (a) the parties to such Electronic Record; (b) the manner in which such electronic record was produced and by whom; (c) the dates and time of preparation or storage or issuance or receipt of each such electronic record; (d) the source of such electronic record and date and time when the electronic record was printed; (e) in case of email ids, details of ownership, custody and access to such email ids; (f) in case of documents stored on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to suc computer resource; (g) deponent's knowledge of contents and correctness of contents; that provision of Order XI Rule 1(7)(c) CPC Rule 1(10) CPC. Learned Senior Counsel further submits that even Rule 6 l Courts Act stipulates disclosure. Rules 6 and 7 of the Act ) In case of disclosures and inspection of Electronic Records (as defined in the Information Act, 2000 (21 of 2000)), furnishing of printouts shall be sufficient compliance of the above provisions. (2) At the discretion of the parties or where required (when parties wish to rely on audio or video content), copies of nished in electronic form either in addition to or in lieu of printouts. (3) Where Electronic Records form part of documents disclosed, the declaration on oath to be filed by a party shall specify - (a) the parties to such Electronic Record; nner in which such electronic record was produced (c) the dates and time of preparation or storage or issuance or receipt of each such electronic record; (d) the source of such electronic record and date and time as printed; (e) in case of email ids, details of ownership, custody and ) in case of documents stored on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or (g) deponent's knowledge of contents and correctness of 31 (c) CPC 6 6 and 7 of the Act ) In case of disclosures and d in the Information Act, 2000 (21 of 2000)), furnishing of printouts (2) At the discretion of the parties or where required (when parties wish to rely on audio or video content), copies of nished in electronic form either in (3) Where Electronic Records form part of documents disclosed, nner in which such electronic record was produced (c) the dates and time of preparation or storage or issuance or (d) the source of such electronic record and date and time (e) in case of email ids, details of ownership, custody and ) in case of documents stored on a computer or computer resource (including on external servers or cloud), details of h data on the computer or (g) deponent's knowledge of contents and correctness of SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document functioning properly or in case of malfunction that such 18. Commercial Courts Act are mandatory in nature and have to be strictly complied with. In the present case even no application was filed by the petitioner for produ (h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored; (i) that the printout or copy furnished was taken from the original computer or computer resource. (4) The parties relying on printouts or copy in electronic form, of any electronic records, shall not be required to give inspection of electronic records, provided a declarat by such party that each such copy, which has been produced, has been made from the original electronic record. (5) The Court may give directions for admissibility of Electronic Records at any stage of the proceedings. (6) Any party may seek directions from the Court and the Court may of its motion issue directions for submission of further proof of any electronic record including metadata or logs before admission of such electroni 7. Certain provisions of the Code of Civil Procedure, to apply.—For avoidance of doubt, it is hereby clarified that Order XIII Rule 1, Order VII Rule 14 and Order VIII Rule 1A of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to suits or applications before the Commercial Divisions of Court or Commercial Courts.” It is lastly contended that the provisions of the Commercial Courts Act are mandatory in nature and have to be strictly complied with. In the present case even no application was filed by the petitioner for producing the pen drive. The petitioner cannot be permitted (h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document ut or copy furnished was taken from the original computer or computer resource. (4) The parties relying on printouts or copy in electronic form, of any electronic records, shall not be required to give inspection of electronic records, provided a declaration is made by such party that each such copy, which has been produced, has been made from the original electronic record. (5) The Court may give directions for admissibility of Electronic any stage of the proceedings. irections from the Court and the Court may of its motion issue directions for submission of further proof of any electronic record including metadata or logs before admission of such electronic record. . Certain provisions of the Code of Civil Procedure, 1908 not For avoidance of doubt, it is hereby clarified that Order XIII Rule 1, Order VII Rule 14 and Order VIII Rule 1A of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to suits or applications before the Commercial Divisions of High It is lastly contended that the provisions of the Commercial Courts Act are mandatory in nature and have to be strictly complied with. In the present case even no application was filed by the cing the pen drive. The petitioner cannot be permitted 31 (h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document ut or copy furnished was taken from the (4) The parties relying on printouts or copy in electronic form, of any electronic records, shall not be required to give ion is made by such party that each such copy, which has been produced, (5) The Court may give directions for admissibility of Electronic irections from the Court and the Court may of its motion issue directions for submission of further proof of any electronic record including metadata or logs 1908 not For avoidance of doubt, it is hereby clarified that Order XIII Rule 1, Order VII Rule 14 and Order VIII Rule 1A of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to igh It is lastly contended that the provisions of the Commercial Courts Act are mandatory in nature and have to be strictly complied with. In the present case even no application was filed by the cing the pen drive. The petitioner cannot be permitted SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document to just pull the pen drive out of his pocket and confront the respondent with the same during his cross 19. relies upon judgment Vs. Mahesh Prefab Pvt. Ltd.” 2022 SCC OnLine Del 2099 Limited Vs. EZY Services & Another” 2022 SCC OnLine Del 2638 and Company and Anr. Vs. Maiden Pharmaceuticals Limited” Law Doc ID # 816101 Limited” Law Finder Doc ID # 2029006; “Jay Krishna Printers Vs. S.N. Tradelink Pvt. Ltd.” Law Finder doc ID # 2121370; judgment of Bombay High Court i Pvt. Ltd. Vs. Swastik Associates & Others” Law Finder Doc ID # 2264937; “Bank of Baroda Vs. 2023(2) Mh. L.J. dismissed. 20. that Order XI and defendant witness produces a document. It is submitted that it is only then an objection included with the written statement. 21. 22. my thoughtful consideration to the rival submissions advanced on behalf to just pull the pen drive out of his pocket and confront the respondent with the same during his cross-examination. In support of his contentions, learned Senior Counsel judgments of Delhi High Court in Vs. Mahesh Prefab Pvt. Ltd.” 2022 SCC OnLine Del 2099 Limited Vs. EZY Services & Another” 2022 SCC OnLine Del 2638 and Company and Anr. Vs. Maiden Pharmaceuticals Limited” Law Doc ID # 816101; “Entertainment Network (India) Ltd Vs. HT Media Limited” Law Finder Doc ID # 2029006; judgment of Gujarat High Court in “Jay Krishna Printers Vs. S.N. Tradelink Pvt. Ltd.” Law Finder doc ID # judgment of Bombay High Court i Pvt. Ltd. Vs. Swastik Associates & Others” Law Finder Doc ID # 2264937; “Bank of Baroda Vs. Gujarat Cables and Enamelled Products Pvt. Ltd.” 2023(2) Mh. L.J. It is accordingly prayed that the present petition be In rebuttal, learned counsel for the petitioners submits XI Rule 1(10) CPC will apply when defendant evidence is going on and defendant witness produces a document. It is submitted that it is only then an objection can be made by the plaintiff included with the written statement. No other argument is raised on behalf of the I have heard learned counsel for the my thoughtful consideration to the rival submissions advanced on behalf to just pull the pen drive out of his pocket and confront the respondent examination. In support of his contentions, learned Senior Counsel f Delhi High Court in “Great Gatsby Club of India Vs. Mahesh Prefab Pvt. Ltd.” 2022 SCC OnLine Del 2099; “Phonepe Private Limited Vs. EZY Services & Another” 2022 SCC OnLine Del 2638; “Eli Lilly and Company and Anr. Vs. Maiden Pharmaceuticals Limited” Law Finder “Entertainment Network (India) Ltd Vs. HT Media judgment of Gujarat High Court in “Jay Krishna Printers Vs. S.N. Tradelink Pvt. Ltd.” Law Finder doc ID # judgment of Bombay High Court in “Khanna Rayon Industries Pvt. Ltd. Vs. Swastik Associates & Others” Law Finder Doc ID # 2264937; Cables and Enamelled Products Pvt. Ltd.” It is accordingly prayed that the present petition be In rebuttal, learned counsel for the petitioners submits CPC will apply when defendant evidence is going on and defendant witness produces a document. It is submitted that it is only be made by the plaintiff that document was not No other argument is raised on behalf of the parties. I have heard learned counsel for the parties and given my thoughtful consideration to the rival submissions advanced on behalf 31 to just pull the pen drive out of his pocket and confront the respondent In support of his contentions, learned Senior Counsel “Great Gatsby Club of India ; “Phonepe Private ; “Eli Lilly Finder “Entertainment Network (India) Ltd Vs. HT Media judgment of Gujarat High Court in “Jay Krishna Printers Vs. S.N. Tradelink Pvt. Ltd.” Law Finder doc ID # “Khanna Rayon Industries Pvt. Ltd. Vs. Swastik Associates & Others” Law Finder Doc ID # 2264937; Cables and Enamelled Products Pvt. Ltd.” It is accordingly prayed that the present petition be In rebuttal, learned counsel for the petitioners submits CPC will apply when defendant evidence is going on and defendant witness produces a document. It is submitted that it is only that document was not SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document of both the parties. petitioners are liable to be rejected 23. Impugned Order dated 22.09.2023 (P Judge-cum-Presiding Judge Exclusive Commercial Court at Gurugram whereby the Petitioners/Defendants have been denied permission to put video clipping in 24. a) 01.02.2022 handed over the possession of the suit property to Defendant No.1 b) 24.03.2022 the Respondent/Plaintiff alleging that when the Petitioner possession of the said property the same was badly damaged and that certain movable properties were missing. video clipping and goes on to describe its contents. c) 08.04.2022 Vihar, Gurugram regarding the above mentions the video and the fact that the same was acqu d) 30.05.2022 recovery of Rs.1,39 sewage repair cost of Rs.2,12,400 accumulated interest calculated @ 18% per annum thereupon from 01.02.2022 till 30.04.2022 both the parties. I find the submissions made on behalf of the petitioners are liable to be rejected for the reasons recorded hereinbelow The Prayer in the present Impugned Order dated 22.09.2023 (P-1) passed by Ld. Additional District Presiding Judge Exclusive Commercial Court at Gurugram whereby the Petitioners/Defendants have been denied permission to put video clipping in cross-examination of PW-1. The brief facts of the case are as follow 01.02.2022 - The Respondent/Plaintiff through its authorized signatory handed over the possession of the suit property to Defendant No.1 24.03.2022 - Police Complaint (P-7) was filed the Respondent/Plaintiff alleging that when the Petitioner possession of the said property the same was badly damaged and that certain movable properties were missing. video clipping and goes on to describe its contents. 08.04.2022 - E-mail (P-8) was sent by the Petitioners to ACP Udyog Vihar, Gurugram regarding the above-mentioned Police Complaint. mentions the video and the fact that the same was acqu 30.05.2022–Present Suit (P-2) is filed by Respondent/Plaintiff for recovery of Rs.1,39,94,230/- being the principal amount together with sewage repair cost of Rs.2,12,400/- and Rs.5,81,830 accumulated interest calculated @ 18% per annum thereupon from 01.02.2022 till 30.04.2022. Page 16 of 31 I find the submissions made on behalf of the for the reasons recorded hereinbelow. the present Civil Revision is for quashing 1) passed by Ld. Additional District Presiding Judge Exclusive Commercial Court at Gurugram whereby the Petitioners/Defendants have been denied permission to put 1. The brief facts of the case are as follows: The Respondent/Plaintiff through its authorized signatory handed over the possession of the suit property to Defendant No.1. was filed by the Petitioners against the Respondent/Plaintiff alleging that when the Petitioners received possession of the said property the same was badly damaged and that certain movable properties were missing. The Complaint mentions the video clipping and goes on to describe its contents. by the Petitioners to ACP Udyog mentioned Police Complaint. It mentions the video and the fact that the same was acquired by the Police. filed by Respondent/Plaintiff for being the principal amount together with and Rs.5,81,830/- being the accumulated interest calculated @ 18% per annum thereupon from 31 SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document e) 02.09.2022 by Petitioners. the Written Statement a existence of any such video does not find mention despite the same being in the knowledge and possession of the Petitioners. of Truth attached with the said Written Statement and under Order all documents in their power, possession, control and custody and the Defendants do not have any other d f) 13.03.2023 authorized person of premises, the Upon which objections were raised by the Respondent against the same. 25. passed by the Ld. Additional District Judge Commercial Court at Gurugram Commercial Courts Act, 2015 accepted and the Petitioners were denied to put the video clipping in the cross-examination of PW Hence, present Revision Petition. 26. the cross-examination of PW it may, it has pen drive/video clipping produced by the petitioners could not have been 02.09.2022 - Written Statement (P-3) and Counter Claim (P by Petitioners. The incident of vacation of premises is mentioned ritten Statement as well as the Counter Claim existence of any such video does not find mention despite the same being in the knowledge and possession of the Petitioners. of Truth attached with the said Written Statement and under Order XI Rule 3, it is averred that the Defendants documents in their power, possession, control and custody and the Defendants do not have any other documents. 13.03.2023–During cross-examination authorized person of Plaintiff, who is present at the time of vacation of , the Petitioners sought to confront PW objections were raised by the Respondent against the same. Vide the Impugned Order dated 22.09.2023 (P passed by the Ld. Additional District Judge-cum Commercial Court at Gurugram exercising Jurisdiction under the cial Courts Act, 2015, the objection raised by the Respondent was accepted and the Petitioners were denied to put the video clipping in the examination of PW-1 as the same was not a relied Hence, present Revision Petition. During the course of hearing, it has been informed that examination of PW-1 stands concluded on 04.04.2024 it may, it has first been contended by ld. Counsel for the petitioners that video clipping produced by the petitioners could not have been 3) and Counter Claim (P-4) are filed The incident of vacation of premises is mentioned in both, the Counter Claim. However, the fact of existence of any such video does not find mention despite the same being in the knowledge and possession of the Petitioners. Even in the Statement of Truth attached with the said Written Statement and Counterclaim that the Defendants have disclosed documents in their power, possession, control and custody and the ocuments. examination of PW-1/Nitesh Bhardwaj present at the time of vacation of Petitioners sought to confront PW-1 with the video clipping. objections were raised by the Respondent against the same. Impugned Order dated 22.09.2023 (P-1) cum-Presiding Judge Exclusive xercising Jurisdiction under the the objection raised by the Respondent was accepted and the Petitioners were denied to put the video clipping in the 1 as the same was not a relied-upon document. the course of hearing, it has been informed that 1 stands concluded on 04.04.2024. Be that as been contended by ld. Counsel for the petitioners that the video clipping produced by the petitioners could not have been 31 the course of hearing, it has been informed that Be that as the video clipping produced by the petitioners could not have been SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document rejected for want of Act. Reliance has been placed upon be held that the said find no merit in the said argument as Indian Evidence attesting to the admissibility of the evidence produced. In the absence of such a Certificate, the authenticity of the evidence determined/ established Reliance of ld. Counsel for the petitioners on Court in T. Naseer same. Relevant extract of the above Court in T. Naseer rejected for want of Certificate under Section eliance has been placed upon T. Naseer supra held that the said Certificate u/s 65-B can be produced at any stage. I find no merit in the said argument as, the provision of vidence Act serves a very important and useful purpose attesting to the admissibility of the evidence produced. In the absence of h a Certificate, the authenticity of the evidence / established; thus, possibly compromising the outcome of trial eliance of ld. Counsel for the petitioners on T. Naseer supra is based on a misreading/ misinterpretation of the Relevant extract of the above said judgment of T. Naseer supra is as under:- “11. Coming to the issue as to the stage of production of the certificate under Section 65-B of the Act is concerned, this Court in Arjun Panditrao Khotkar's case (supra) certificate under 65-B of the Act can be produced at any stage if the trial is not over. Relevant paragraphs are extracted below: "56. Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting ev be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Se Section 165 of the Evidence Act. of each case, and the court exercising discretion after ection 65-B of the Indian Evidence T. Naseer supra wherein it is stated to can be produced at any stage. I the provision of Section 65-B of the serves a very important and useful purpose viz of attesting to the admissibility of the evidence produced. In the absence of h a Certificate, the authenticity of the evidence produced cannot be ; thus, possibly compromising the outcome of trial. eliance of ld. Counsel for the petitioners on judgment of the Hon’ble Apex is based on a misreading/ misinterpretation of the judgment of the Hon’ble Supreme Coming to the issue as to the stage of production of the of the Act is concerned, this Court Khotkar's case (supra) held that the B of the Act can be produced at any stage Relevant paragraphs are extracted . Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application the prosecution under Sections 91 or 311 CrPC or Section 165 of the Evidence Act. Depending on the facts of each case, and the court exercising discretion after 31 B of the Indian Evidence stated to can be produced at any stage. I B of the of attesting to the admissibility of the evidence produced. In the absence of cannot be . judgment of the Hon’ble Apex is based on a misreading/ misinterpretation of the Hon’ble Supreme Coming to the issue as to the stage of production of the of the Act is concerned, this Court held that the B of the Act can be produced at any stage Relevant paragraphs are extracted . Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power idence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application ctions 91 or 311 CrPC or Depending on the facts of each case, and the court exercising discretion after SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document 27. Court, while relying upon Khotkar v. Kailash Kushanrao 1731377 has granted discretion to the Court to permit production of the Certificate at a later stage, however, prejudice is caused to the other party in the trial, and such discretion is to be exercised documents/evidence at a later stage is also subject to the caveat contained in para which reads as follows: seeing that the accused is not prejudiced by want of a fair trial, the court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case be exercised by the court in accord 59. Subject to the caveat laid down in paras 52 and 56 above, the law laid down by these two High Courts has our concurrence. So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record form can then be admitted and relied upon in evidence. Read as a whole it is clear that the while relying upon 3-Judge Bench judgment Khotkar v. Kailash Kushanrao Gorantyal (SC) : Law Finder Doc Id # has granted discretion to the Court to permit production of the at a later stage, however, subject to the conditions that no prejudice is caused to the other party in the trial, and such discretion is to be exercised in accordance with law. evidence at a later stage is also subject to the caveat contained in paragraph 52 of the judgment in which reads as follows: “52. It is pertinent to recollect that the stage of admitting documentary evidence in a criminal trial is the filing of the charge-sheet. When a criminal court summons the accused stand trial, copies of all documents which are entered in the seeing that the accused is not prejudiced by want of a fair trial, the court may in appropriate cases allow the tion to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case — discretion to be exercised by the court in accordance with law. . Subject to the caveat laid down in paras 52 and 56 above, the law laid down by these two High Courts has So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be the learned Judge at any stage, so that information contained in electronic record form can then be admitted and relied upon in evidence." (Emphasis added)” Read as a whole it is clear that the Hon’ble Supreme judgment in Arjun Panditrao Gorantyal (SC) : Law Finder Doc Id # has granted discretion to the Court to permit production of the subject to the conditions that no prejudice is caused to the other party in the trial, and such discretion is to in accordance with law. Permission to produce evidence at a later stage is also subject to the caveat of the judgment in Arjun Panditrao (supra), 52. It is pertinent to recollect that the stage of admitting documentary evidence in a criminal trial is the filing of the sheet. When a criminal court summons the accused to stand trial, copies of all documents which are entered in the 31 seeing that the accused is not prejudiced by want of a fair trial, the court may in appropriate cases allow the tion to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again discretion to . Subject to the caveat laid down in paras 52 and 56 above, the law laid down by these two High Courts has So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be the learned Judge at any stage, so that information contained in electronic record form can ” SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document feature of the right to a fair trial as it enables the accused to 28. Counsel for the petitioners is based on a piecemeal reading the above judgment 29. petitioners falls 1(7)(c)(i) which explicitly allows documents to be produced for first time during cross commercial disputes charge-sheet/final report have to be given to the accused. section 207 of the CrPC, 1973 which reads as follows, is mandatory[6*]. Therefore, the electronic evidence, i.e. the computer output, has to be furnished at the latest before the trial begins. The reason is not far to seek; this gives the accused a fair chance to prepare and defend the charges levelled against him during the t criminal proceedings therefore, is to supply to the accused all documents that the prosecution seeks to rely upon before the commencement of the trial. The requirement of such full disclosure is an extremely valuable right an feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement. It would therefore, appear that the argument of ld. Counsel for the petitioners is based on a piecemeal reading above judgment. It has next been submitted that the case of the petitioners falls under the exception carved out under which explicitly allows documents to be produced for first time during cross-examination. Said Order XI commercial disputes reads as under: "(7) The defendant shall file a list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the written statement or with its counterclaim if any, including (a) the documents referred to and relied on by the defendant in the written statement; (b) the documents relating to any matter in question in the proceeding in the power, possession, control or custody of the sheet/final report have to be given to the accused. of the CrPC, 1973 which reads as follows, is Therefore, the electronic evidence, i.e. the computer output, has to be furnished at the latest before the trial begins. The reason is not far to seek; this gives the accused a fair chance to prepare and defend the charges levelled against him during the trial. The general principle in criminal proceedings therefore, is to supply to the accused all documents that the prosecution seeks to rely upon before the commencement of the trial. The requirement of such full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement.” It would therefore, appear that the argument of ld. Counsel for the petitioners is based on a piecemeal reading/misreading of It has next been submitted that the case of the under the exception carved out under Order XI Rule which explicitly allows documents to be produced for first time Rule 1(7) as applicable to "(7) The defendant shall file a list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the written statement or with its counterclaim if any, including- ferred to and relied on by the defendant (b) the documents relating to any matter in question in the proceeding in the power, possession, control or custody of the 31 SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document 30. Counsel for the petitioners is said provision cannot be read in isolation; and has to be read in conjunction with 1(9) and Order XI read as follows: defendant, irrespective of whether the same is in support of or adverse to the defendant's defence; (c) nothing in this Rule shall apply to documents produced by the defendants and relevant only (i) for the cross-examination of the plaintiff's witnesses, (ii) in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or (iii) handed over to a witness merely to refresh his memory." It is my considered view that th Counsel for the petitioners is also misconceived inasmuch as the above said provision cannot be read in isolation; and has to be read in conjunction with Order XI Rule 1(9) and Order Order XI Rule 1(10) CPC as applicable to commercial disputes read as follows:- “(9) The written statement or counterclaim shall contain a declaration on oath made by the documents in the power, possession, control or custody of the defendant, save and except for those set out in sub (7)(c)(iii) pertaining to the facts and circumstances of the proceedings initiated by the plaintiff or in the counterclaim, have been disclosed and copies thereof annexed with the written statement or counter claim and that the defendant does not have in its power, possession, control or custody, any other documents. (10) Save and except for sub-rule (7) (c) (i not be allowed to rely on documents, which were in the defendant's power, possession, control or custody and not disclosed along with the written statement or counterclaim, defendant, irrespective of whether the same is in support of verse to the defendant's defence; (c) nothing in this Rule shall apply to documents produced by the defendants and relevant only- examination of the plaintiff's witnesses, (ii) in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or (iii) handed over to a witness merely to refresh his It is my considered view that this argument of ld. nceived inasmuch as the above said provision cannot be read in isolation; and has to be read in Order XI Rule 1 (10). Order XI Rule CPC as applicable to commercial disputes, written statement or counterclaim shall contain a declaration on oath made by the deponent that all documents in the power, possession, control or custody of the defendant, save and except for those set out in sub-rule pertaining to the facts and circumstances of the proceedings initiated by the plaintiff or in the counterclaim, have been disclosed and copies thereof annexed with the written statement or counter claim and that the defendant possession, control or custody, any rule (7) (c) (iii), defendant shall not be allowed to rely on documents, which were in the defendant's power, possession, control or custody and not ith the written statement or counterclaim, 31 SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document 31. defendant is required to disclose and annex with the written statement/ counterclaim all the documents relevant to the lis which are in his power, possession etc. No exception is permissible save and rule (7)(c)(iii). Further, upon except with leave of upon the defendant establishing reasonable cause for previous non disclosure. It is a fairly set Order XI Rule 1 (10) is absolute and has to be applied stringently. The Commercial Courts Act, 2015 is and purpose of speedy disposal of suits relating to commercia and it cannot be plagued with the same malaise of lengthy trials as Civil Procedure Code. 32. has limited exception only to sub (7)(c)(i) and sub upon the said provision of appear that video had to be disclosed with the Written Statemen unfairly taking advantage of Sub the only exception to Order save and except by leave of Court and such leave shall be granted only upon the defendant establishing reasonable cause for non-disclosure along with the written statement or counterclaim.” Thus, as per the above provisions, it is clear that the defendant is required to disclose and annex with the written statement/ counterclaim all the documents relevant to the lis which are in his power, possession etc. No exception is permissible save and rule (7)(c)(iii). Further, any document not so disclosed cannot be relied upon except with leave of Court; and which upon the defendant establishing reasonable cause for previous non It is a fairly settled position of law that the proscription under Rule 1 (10) is absolute and has to be applied stringently. The Commercial Courts Act, 2015 is special statute brought in with the object and purpose of speedy disposal of suits relating to commercia and it cannot be plagued with the same malaise of lengthy trials as Civil Procedure Code. It is also to be noted that the Legislature in its wisdom has limited exception only to sub-rule (7)(c)(iii), and not to sub (7)(c)(i) and sub-rule (7)(c)(ii). Thus, reliance placed by the petitioners upon the said provision of Order XI Rule 1(7)(c) appear that the Petitioners are trying to surpass the proscription that video had to be disclosed with the Written Statemen unfairly taking advantage of Sub-rule (7)(c)(i) of Rule 1 Order he only exception to Order XI Rule 1(10) as mentioned in the statute, is save and except by leave of Court and such leave shall be granted only upon the defendant establishing reasonable disclosure along with the written statement or Thus, as per the above provisions, it is clear that the defendant is required to disclose and annex with the written statement/ counterclaim all the documents relevant to the lis which are in his power, possession etc. No exception is permissible save and except under sub- any document not so disclosed cannot be relied which leave can be granted only upon the defendant establishing reasonable cause for previous non- tled position of law that the proscription under Rule 1 (10) is absolute and has to be applied stringently. The special statute brought in with the object and purpose of speedy disposal of suits relating to commercial disputes and it cannot be plagued with the same malaise of lengthy trials as Civil to be noted that the Legislature in its wisdom rule (7)(c)(iii), and not to sub-rule rule (7)(c)(ii). Thus, reliance placed by the petitioners Rule 1(7)(c) is misconceived. It would the Petitioners are trying to surpass the proscription that video had to be disclosed with the Written Statement/Counter Claim by rule (7)(c)(i) of Rule 1 Order XI. Further, Rule 1(10) as mentioned in the statute, is 31 SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document Order XI Rule 1(7)(c)(iii) 1(7)(c)(i) and (i could also be made to Order discovery of documents by plaintiff. Notably, no parallel exception is given to the plaintiff as given to explicit inclusion of Order defendants while leaving out Order Judgments of (supra) relied upon by the Petitioner hand. It may also be mentioned that these judgments do not deal with Commercial Disputes to begin with. 33. further non-compliance of Order forming part of documents has to be dec contended by the petitioners that such a declaration is required to be made only in respect of argument of the petitioners is a misnomer as, in terms of discussed above there is already a presumption that the defendant necessarily disclose 34. petitioners that the Commercial Courts Act are pari of Order VII 1(3) of the CPC. Rule 1(7)(c)(iii); and no exception is given qua Order 1(7)(c)(i) and (ii). To remove any ambiguity around the same, reference be made to Order XI Rule 1(5) which deals with disclosure and discovery of documents by plaintiff. Notably, no parallel exception is given to the plaintiff as given to the defendant under Order explicit inclusion of Order XI Rule 1(7)(c)(iii) a defendants while leaving out Order XI Rule 1(7)(c)(i) and Judgments of Subash Chander and Pandharinath relied upon by the Petitioners have no applicability to the facts at hand. It may also be mentioned that these judgments do not deal with Commercial Disputes to begin with. Additionally, it may be emphasized that there is a compliance of Order XI Rule 6(3) where any electronic record forming part of documents has to be dec contended by the petitioners that such a declaration is required to be made only in respect of ‘documents disclosed argument of the petitioners is a misnomer as, in terms of above there is already a presumption that the defendant disclosed all documents/electronic evidence relevant to the lis It has further been submitted by ld. counsel for the petitioners that the provisions of Order Commercial Courts Act are pari-materia to the already existing provisions Rule 14(4); Order VIII Rule 1(A)(4) 1(3) of the CPC. However, in submitting as above, ld. Counsel for the and no exception is given qua Order XI Rule ). To remove any ambiguity around the same, reference Rule 1(5) which deals with disclosure and discovery of documents by plaintiff. Notably, no parallel exception is given the defendant under Order XI Rule 1(10). The Rule 1(7)(c)(iii) as an exception only in case of Rule 1(7)(c)(i) and (ii), is telling. The Pandharinath Laxman Bhandari have no applicability to the facts at hand. It may also be mentioned that these judgments do not deal with Additionally, it may be emphasized that there is a Rule 6(3) where any electronic record forming part of documents has to be declared on oath. It has been contended by the petitioners that such a declaration is required to be documents disclosed’. However, the said argument of the petitioners is a misnomer as, in terms of Order XI Rule 1 above there is already a presumption that the defendant has electronic evidence relevant to the lis. her been submitted by ld. counsel for the provisions of Order XI CPC as amended by the materia to the already existing provisions Rule 1(A)(4); as well as Order XIII Rule However, in submitting as above, ld. Counsel for the 31 SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document petitioners is ignoring the provision of Order the Commercial Courts which 35. of the petitioners has held that these provisions requiring the parties to file documents along with pleadings do not apply to the documents produced for cross examination of the intent behind these provisions is to permit a However, the said argument of the petitioners is admittedly, in the present case there was no element of surprise left. record bears out that the the Respondent date the Written Statement and Counter Claim, wherein not only the fact of existence of the video clipping is explicitly mentioned but also the contents of the same are elaborated of these documents/ evidence, produced. Further, this shows that the same is also in knowledge of the Respondent (as admitted by the Petitioners in para (xi), pg. 18 of the Civil petitioners is ignoring the provision of Order the Commercial Courts which stipulates as follows: “7. Certain provisions of the Code of Civil Procedure, 1908 not to apply – For avoidance of doubt, it is hereby clarified that Order XIII Rule 1, Order VII Rule 14 and Order VIII Rule 1A of the Code of Civil Procedure, 1908 apply to suits or applications before the Commercial Divisions of High Court or Commercial Courts.” In the same vein it has also of the petitioners that the Delhi High Court in has held that these provisions requiring the parties to file documents along with pleadings do not apply to the documents produced for cross examination of the opposite party witnesses intent behind these provisions is to permit a However, the said argument of the petitioners is admittedly, in the present case there was no element of surprise left. record bears out that the Police Complaint filed by the Petitioners against the Respondent and the subsequent E-mail sent to ACP Gurguram pre date the Written Statement and Counter Claim, wherein not only the fact of existence of the video clipping is explicitly mentioned but also the contents of the same are elaborated. Thus, despite admitted k of these documents/ evidence, the same was neither disclosed produced. Further, this shows that the same is also in knowledge of the Respondent (as admitted by the Petitioners in para (xi), pg. 18 of the Civil petitioners is ignoring the provision of Order XI Rule 7 CPC as applicable to as follows: 7. Certain provisions of the Code of Civil Procedure, 1908 For avoidance of doubt, it is hereby clarified that Order XIII Rule 1, Order VII Rule 14 and Order VIII Rule 1A Code of Civil Procedure, 1908 (5 of 1908) shall not suits or applications before the Commercial Divisions of High Court or Commercial Courts.” In the same vein it has also been submitted on behalf Delhi High Court in Subhash Chander (supra) has held that these provisions requiring the parties to file documents along with pleadings do not apply to the documents produced for cross- witnesses; and that the legislative intent behind these provisions is to permit an element of surprise. However, the said argument of the petitioners is also incorrect as admittedly, in the present case there was no element of surprise left. The Police Complaint filed by the Petitioners against mail sent to ACP Gurguram pre- date the Written Statement and Counter Claim, wherein not only the fact of existence of the video clipping is explicitly mentioned but also the . Thus, despite admitted knowledge the same was neither disclosed nor produced. Further, this shows that the same is also in knowledge of the Respondent (as admitted by the Petitioners in para (xi), pg. 18 of the Civil 31 SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document Revision). Hence, the entire case the objective behind producing the video at the time of cross is to affect an element of surprise, falls apart. 36. the Petitioners are barred in their knowledge, possession or power unless the same was disclosed at the time of filing of the Written Statement/Counter Claim save and except by leave of Court which is subject to the defendants establishing reasonable cause for non clear that Petitioners did not at any given time of any reasonable cause. 37. the respondent, the following judgments/ precedential case law: judgment of Hon’ble Supreme Court in Vinay Kumar G.B.” (2021) 13 SCC 71 ence, the entire case of the petitioners based on the plea that the objective behind producing the video at the time of cross an element of surprise, falls apart. To sum up, from the above discussion it is clear that Petitioners are barred from subsequently relying upon any document in their knowledge, possession or power unless the same was disclosed at the time of filing of the Written Statement/Counter Claim save and except by leave of Court which is subject to the defendants establishing reasonable cause for non-disclosure. From the perusal of the facts clear that Petitioners did not at any given time of any reasonable cause. In addition to the judgments cited by ld. Counsel for the respondent, the above view(s) taken by this Court are supported by the following judgments/ precedential case law: of Hon’ble Supreme Court in “Sudhir Kumar @ S. Baliyan Vs. Vinay Kumar G.B.” (2021) 13 SCC 71, relevant part of which is “9.2. At the outset, it is required to be noted that as such the said application for leave to produce on record additional documents was preferred by the appellant herein, original plaintiff under Order 7 Rule 14(3) CPC. However, considering Order 11 Rule 1 as applicable to the commercial suits by which the Civil Procedure Code has been amended with respect to the suits before the Commercial Court and in view of Section 16 of the Commercial Courts Act, Order 7 Rule 14(3) CPC shall have no application at all. After Order 11 Rule 1 has been amended with respect to the suits before the etitioners based on the plea that the objective behind producing the video at the time of cross-examination an element of surprise, falls apart. To sum up, from the above discussion it is clear that from subsequently relying upon any document in their knowledge, possession or power unless the same was disclosed at the time of filing of the Written Statement/Counter Claim save and except by leave of Court which is subject to the defendants establishing a disclosure. From the perusal of the facts, it is clear that Petitioners did not at any given time, even aver to the existence In addition to the judgments cited by ld. Counsel for above view(s) taken by this Court are supported by the following judgments/ precedential case law: Reliance is placed upon “Sudhir Kumar @ S. Baliyan Vs. relevant part of which is as under:- 9.2. At the outset, it is required to be noted that as such the said application for leave to produce on record additional documents was preferred by the appellant herein, original plaintiff under Order 7 Rule 14(3) CPC. However, considering rder 11 Rule 1 as applicable to the commercial suits by the Civil Procedure Code has been amended with respect to the suits before the Commercial Court and in view of Section 16 of the Commercial Courts Act, Order 7 Rule cation at all. After Order 11 Rule 1 has been amended with respect to the suits before the 31 SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document filed before the commercial division, Commercial Court, we Commercial Courts and a specific provision/procedure has been prescribed with respect to the suits before the commercial division and before the Commercial Court, th provision of the Code of Civil Procedure as has been amended by the Commercial Courts Act, 2015 shall have to be followed and any provision of any rule of the jurisdiction of the High Court or any amendment to the Code of Civil Procedure by the State Government which is in conflict of the Code of the Civil Procedure as amended by Commercial Courts Act, the provision of the Code of the Civil Procedure as amended by the Commercial Courts Act shall prevail. Therefore, Order 11 Rule 1 as amended by the amendm Courts Act, with respect to the suits before the commercial division and the Commercial Court, the provisions of Order 7 Rule 14(3) shall not be applicable at all. Therefore as such the plaintiff applied the wrong provision seeking le court to place on record the additional documents. However, considering the fact that thereafter, both the learned Commercial Court as well as the High Court treated and considered and even applied Order 11 Rule 1 CPC as amended by the Commercial Courts Act and as applicable to the suits filed before the commercial division, Commercial Court, we proceed to consider the application submitted by the appellant herein, original plaintiff, as if the same was submitted under Order 11 Rule 1(4) CPC. 9.3. It is true that Order 11 Rule 1 CPC as applicable to the commercial suits brought about a radical change and it mandates the plaintiff to file a list of all documents, photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the plaint and a procedure provided under Order 11 Rule 1 is required to be Commercial Courts and a specific provision/procedure has been prescribed with respect to the suits before the commercial division and before the Commercial Court, the provision of the Code of Civil Procedure as has been amended by the Commercial Courts Act, 2015 shall have to be followed and any provision of any rule of the jurisdiction of the High Court or any amendment to the Code of Civil Procedure by the ernment which is in conflict of the Code of the Civil Procedure as amended by Commercial Courts Act, the provision of the Code of the Civil Procedure as amended by the Commercial Courts Act shall prevail. Therefore, Order 11 Rule 1 as amended by the amendment in the Commercial Courts Act, with respect to the suits before the commercial division and the Commercial Court, the provisions of Order 7 Rule 14(3) shall not be applicable at all. Therefore as such the plaintiff applied the wrong provision seeking leave of the court to place on record the additional documents. However, considering the fact that thereafter, both the learned Commercial Court as well as the High Court treated and considered and even applied Order 11 Rule 1 CPC as amended l Courts Act and as applicable to the suits filed before the commercial division, Commercial Court, we proceed to consider the application submitted by the appellant herein, original plaintiff, as if the same was submitted under Order 11 Rule 1(4) CPC. 3. It is true that Order 11 Rule 1 CPC as applicable to the commercial suits brought about a radical change and it mandates the plaintiff to file a list of all documents, photocopies of all documents, in its power, possession, control g to the suit, along with the plaint and a procedure provided under Order 11 Rule 1 is required to be 31 SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document followed by the plaintiff and the defendant, when the suit is filings the plaintiff may seek leave to rely 38. Court in “Nitin Gupta Vs. Texmaco Infrastructure & 2019 SCC OnLine Del 8367 filing of documents, especially with respect to documents of for default of advocate', the commercial suits will start followed by the plaintiff and the defendant, when the suit is the commercial suit… xxx 9.5. Order 11 Rule 1(5) further provides that the plaintiff shall not be allowed to rely on documents, which were in the plaintiff's power, possession, control or custody and not disclosed along with plaint or within the extended period set out above, save and except by leave of court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint. Therefore on combined reading of Order 11 Rule 1(4) read with Order 11 Rule 1(5), it emerges that (i) in case of urgent filings the plaintiff may seek leave to rely documents; (it) within thirty days of filing of the suit; (iii) making out a reasonable cause for non plaint.” Reliance may be placed upon judgment of Delhi High “Nitin Gupta Vs. Texmaco Infrastructure & 2019 SCC OnLine Del 8367, wherein it has been held as under: “38. Unless, the Commercial Divisions, while dealing with the commercial suits, so start enforcing Rules legislated for commercial suits, and refuse to entertain applications f filing of documents, especially with respect to documents of suspicious character and continue to show leniency in the name of 'interest of justice' and 'a litigant ought not to suffer for default of advocate', the commercial suits will start suffering from the same malady with which the ordinary suits have come to suffer and owing whereto the need for the Commercial Courts Act, 2015 was felt. Commercial Division is thus not required to entertain or allow applications for late followed by the plaintiff and the defendant, when the suit is 9.5. Order 11 Rule 1(5) further provides that the plaintiff shall ot be allowed to rely on documents, which were in the plaintiff's power, possession, control or custody and not disclosed along with plaint or within the extended period set out above, save and except by leave of court and such leave upon the plaintiff establishing disclosure along with the plaint. Therefore on combined reading of Order 11 Rule 1(4) read with Order 11 Rule 1(5), it emerges that (i) in case of urgent filings the plaintiff may seek leave to rely on additional documents; (it) within thirty days of filing of the suit; (iii) making out a reasonable cause for non-disclosure along with Reliance may be placed upon judgment of Delhi High “Nitin Gupta Vs. Texmaco Infrastructure & Holding Limited” wherein it has been held as under:- 38. Unless, the Commercial Divisions, while dealing with the commercial suits, so start enforcing Rules legislated for commercial suits, and refuse to entertain applications for late filing of documents, especially with respect to documents of suspicious character and continue to show leniency in the name of 'interest of justice' and 'a litigant ought not to suffer for default of advocate', the commercial suits will start ring from the same malady with which the ordinary suits have come to suffer and owing whereto the need for the Commercial Courts Act, 2015 was felt. Commercial Division is thus not required to entertain or allow applications for late 31 SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document filing of documents, w for non from 1s July, 2002 of CPC, vide Order VII Rule filing of documents, without any good cause being established for non-disclosure thereof along with pleadings. The plaintiff herein has utterly failed in this regard. The application nowhere explains as to why the plaintiff, if had obtained the said letter from the defendant, d remember the same and make disclosure of the same at the time of filing the police complaint and/or at the time of filing of this suit, even if the letter had been misplaced or was not immediately available. The form prescribed for filing affidavit of documents requires a litigant in a commercial suit to, even if not immediately possessed of a relevant document, disclose the same. A litigant who fails to do so and also does not satisfy the Court while seeking to belatedly file the document, why no disclosure of such document was made, cannot be permitted to so file documents. 39. Order XIII Rules (1) & (2) of the CPC as it existed prior to amendment with effect from 1st July, 2002, required the documents to be filed at or before the settlement of issues and no documents could be received at any subsequent stage unless "good cause was shown to the satisf for non-production thereof". Post amendment with effect from 1s July, 2002 of CPC, vide Order VII Rule Order VIII Rule 1A (1)&(3) a plaintiff was required to file documents along with plaint and a defendant required to fil documents along with written statement and documents were not permitted to be received thereafter without leave of the Court. Prior to 2002, the parties, if had not filed the document prior to settlement of issues, were required to satisfy the Court as to why the document was not filed till the stage of settlement of issues and were not required by language of Order XIII Rule (2) to satisfy whether the ithout any good cause being disclosure thereof along with pleadings. The plaintiff herein has utterly failed in this regard. The application nowhere explains as to why the plaintiff, if had obtained the said letter from the defendant, did not remember the same and make disclosure of the same at the time of filing the police complaint and/or at the time of filing of this suit, even if the letter had been misplaced or was not immediately available. The form prescribed for filing affidavit of documents requires a litigant in a commercial suit to, even if not immediately possessed of a relevant document, disclose the same. A litigant who fails to do so and also does not satisfy the Court while seeking to belatedly file the document, sclosure of such document was made, cannot be permitted to so file documents. (2) of the CPC as it existed prior to amendment with effect from 1st July, 2002, required the documents to be filed at or before the settlement of issues and no documents could be received at any subsequent stage unless "good cause was shown to the satisfaction of the Court production thereof". Post amendment with effect from 1s July, 2002 of CPC, vide Order VII Rule 14(1)&(3) and Order VIII Rule 1A (1)&(3) a plaintiff was required to file documents along with plaint and a defendant required to file documents along with written statement and documents were not permitted to be received thereafter without leave of the Court. Prior to 2002, the parties, if had not filed the document prior to settlement of issues, were required to o why the document was not filed till the stage of settlement of issues and were not required by language of Order XIII Rule (2) to satisfy whether the 31 SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document 39. Court in “Saregama India Limited Vs. ZEE Entertainment Enterprises Limited” 2023 SCC OnLine Del 2437, fil document was within their knowledge or not. I emphasise, only reason for 'non-production' was to be stat reason for 'non-disclosure'. Though with effect from 1st July, 2002, for late filing of documents only leave of the Court was required to be taken but the test continued to be applied by the Courts for granting such leave continued to be as 2002 i.e. of reasons for 'non-production' of documents at the stage provided therefor. Order XI Rule (1) of the CPC as applicable to commercial suits brought about a radical change. The late filing of documents thereunder is permitted applying the test of reasonable cause of 'non the document at the stage provided for filing thereof. An applicant now is required to satisfy the Court as to why the document was not in his knowledge and if in his knowledge why was the document not discl Thereunder, documents, even if not immediately available, are required to be disclosed.” Reliance is also placed upon judgment of Delhi High “Saregama India Limited Vs. ZEE Entertainment Enterprises Limited” 2023 SCC OnLine Del 2437, wherein it “38. The plaintiff has invoked sub Rule 1 read with sub-Rule (5) of Order XI Rule 1 of the CPC to file additional documents. As is evident from the passages set out above, it has specifically been pleaded by the plaintiff that the aforesaid documents are being filed to counter the case set up by the defendant and hence, could not be filed at the time of filing of the suit. However, no explanation has been given by the plaintiff as to why the aforesaid documents were not filed along with the replication. Further, the plaintiff document was within their knowledge or not. I emphasise, production' was to be stated and not the disclosure'. Though with effect from 1st July, 2002, for late filing of documents only leave of the Court was required to be taken but the test continued to be applied by the Courts for granting such leave continued to be as prior to production' of documents at the stage provided therefor. Order XI Rule (1) of the CPC as applicable to commercial suits brought about a radical change. The late filing of documents thereunder is permitted test of reasonable cause of 'non-disclosure' of the document at the stage provided for filing thereof. An applicant now is required to satisfy the Court as to why the document was not in his knowledge and if in his knowledge why was the document not disclosed at the appropriate time. Thereunder, documents, even if not immediately available, placed upon judgment of Delhi High “Saregama India Limited Vs. ZEE Entertainment Enterprises wherein it is held as follows:- 38. The plaintiff has invoked sub-Rule (1) (c) (ii) of Order XI Rule (5) of Order XI Rule 1 of the CPC to e additional documents. As is evident from the passages set out above, it has specifically been pleaded by the plaintiff that the aforesaid documents are being filed to counter the case set up by the defendant and hence, could not be filed at iling of the suit. However, no explanation has been given by the plaintiff as to why the aforesaid documents were not filed along with the replication. Further, the plaintiff 31 SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document file additional documents at any stage of the suit on the file additional documents at any stage would make a 40. or relied upon the video clipping in their pleadings or documents placed before the Court, they could not be permitted to rely upon the said video clipping/ evidence of such nature. Further, there is Section 65B of Indian Evidence Act tendered to establish the authenticity of electronic evidence making it admissible. The procedural requirements as stipulated for Suit have not been followed. adhere to Order discovery and inspection of documents, including electronic records. Order XI Rule 6(3) further requires a declaration on oath regarding electronic evidence has failed to provide any reasonable cause for filing the aforesaid documents at this stage, 5 years after the replication was filed. 39. In a commercial suit, the plaintiff cannot be permitted to file additional documents at any stage of the suit on the ground that the same are in response to the case set up by the defendant in the written statement. Permitting a party to file additional documents at any stage would make a complete mockery of Order XI of the CPC as applicable to commercial suits. The whole object of the aforesaid provisions of the CPC pertaining to commercial suits wo if a party is permitted to file additional documents at any stage of the suit.” Thus, as the petitioners/ defendants had not disclosed or relied upon the video clipping in their pleadings or documents placed before the Court, they could not be permitted to rely upon the said video clipping/ evidence of such nature. Further, there is Section 65B of Indian Evidence Act. No certificate under Section 65 was tendered to establish the authenticity of electronic evidence making it The procedural requirements as stipulated for have not been followed. Since the case is a commercial suit, it must adhere to Order XI CPC as amended which mandates prior disclosure, discovery and inspection of documents, including electronic records. Rule 6(3) further requires a declaration on oath regarding ic evidence, which was also not complied with. Page 30 of 31 has failed to provide any reasonable cause for filing the this stage, 5 years after the 39. In a commercial suit, the plaintiff cannot be permitted to file additional documents at any stage of the suit on the ground that the same are in response to the case set up by ritten statement. Permitting a party to file additional documents at any stage would make a complete mockery of Order XI of the CPC as applicable to commercial suits. The whole object of the aforesaid provisions of the CPC pertaining to commercial suits would be defeated if a party is permitted to file additional documents at any as the petitioners/ defendants had not disclosed or relied upon the video clipping in their pleadings or documents placed before the Court, they could not be permitted to rely upon the said video clipping/ evidence of such nature. Further, there is Non-compliance with No certificate under Section 65 was tendered to establish the authenticity of electronic evidence making it The procedural requirements as stipulated for Commercial ince the case is a commercial suit, it must which mandates prior disclosure, discovery and inspection of documents, including electronic records. Rule 6(3) further requires a declaration on oath regarding not complied with. As such, the 31 SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document Defendants video clipping 41. 42. 21.04.2025 Sunena Whether speaking/reasoned: Whether reportable: have been correctly barred from confronting witness with video clipping, given the procedural lapses. Dismissed. Pending application(s) if any also stand(s) disposed of. Whether speaking/reasoned: Yes/No Whether reportable: Yes barred from confronting witness with Pending application(s) if any also stand(s) disposed of. (Nidhi Gupta) Judge 31 SUNENA 2025.04.23 15:18 I attest to the accuracy and integrity of this document