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2000 DIGILAW 491 (DEL)

P. M. DIESELS LIMITED v. THUKRAL MECHANICAL WORKS

2000-07-03

MUKUL MUDGAL

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MUKUL MUDGAL, J. ( 1 ) THIS is an application on behalf of the respondents under Order XI 11, Rule 2 CPC,praying for bringing on record the additional documents which was filed by list ofdocuments dated 27. 2. 95. ( 2 ) THE petition is filed by the petitioner/non-applicant against respondent No. 1under Sections 46, 56 and 107 of Trade and Merchandise Marks Act, 1958 forrectification of entry relating to the Registered Trade Mark by the respondent No. 1/thukral Mechanical Works. ( 3 ) THE petitioner s case is that they have registered trademarks for Diesel oilengines and parts, Centrifugal Pumps, Agricultural Pumps, Electric Motors, Pumpingsets and parts thereof. They have been using since 1963 the trademark FIELDMARSHAL for the aforesaid goods and the said trademark is registered. Thetrademark which is sought to be rectified and registered in favour of the respondentsis the trademark FIELD MARSHAL in respect of the Flour Mills, Circulation andcentrifugal pumps etc. ( 4 ) THE current stage of the proceedings in this petition is that the evidence of therespondent No. 1 after the evidence of the petitioner is over. ( 5 ) THE respondent No. 1 s case is that issues were framed on 5/04/1984 andparties were directed in this matter as well as connected Suit No. 2408/85 to fileadditional documents and list of witnesses within six weeks. The petitioner had filedthe list of witnesses on 14. 2. 95 and the respondent filed the list of witnessesalongwith additional documents on 2 3/03/1995. ( 6 ) THE respondent submits that the petitioner never raised any objections frommarch, 1995 onwards when the documents sought to be brought on record by thisapplication supplied to the petitioner. The reason given for production of documentsbeyond the stipulated period is the destruction of the records of the respondent infloods in Punjab in 1993 and the change in the partners of the respondent s firm. ( 7 ) IN reply to this application, filed by the respondent No. 1, it is submitted on behalfof the, petitioner that the main petition was filed by the petitioner in the year 1987 andthe petitioner had earlier filed the Suit No. 2408/85 against the respondents for aninjunction, restraining infringement of trademarks. The issues were framed in April,1994 and the petitioner has already examined its witnesses and the respondent afterleading some evidence has -got this case wrongly adjourned so as to delay theproceedings. The issues were framed in April,1994 and the petitioner has already examined its witnesses and the respondent afterleading some evidence has -got this case wrongly adjourned so as to delay theproceedings. It is also stated that the documents filed by the list dated 27. 2. 1995were filed without any orders by this Court and was a surreptitious attempt to bringthese documents on record. It is also alleged that the respondents have been guilty offiling forging and fake documents. The petitioner s plea is that the respondents haveprepared these documents later on and now wants to rely on these documents. ( 8 ) CONSIDERING the facts and circumstances of the case, I am of the view that whilethere is delay in moving this application for bringing the documents on record,. Thedocuments were also filed well beyond the stipulated time granted on the day whenthe issues were framed on 5/04/1994. Apart from the laches, the petitioner hasopposed the prayer made in this application on the ground that the documents arefabricated as an attempt to bolster the respondent s case. ( 9 ) HOWEVER, notwithstanding the delay, in view of the fact that the respondentno. 1 s evidence has not yet been led and the respondents had filed these documentsalongwith the List dated 27. 2. 1995, I am of the view that the interest of justice wouldbe best subserved if the respondent is permitted to bring these documents on recordsubject to payment of adequate costs to compensate the petitioner. The veracity ofthe documents can only be tested at the appropriate stage of the trial of the suit. ( 10 ) IN this view of the matter, the application deserves to be allowed. However, it willnaturally be open to the petitioner to challenge the veracity of these documents at thetime of the evidence of the witnesses and the hearing of the suit. The application is,therefore, allowed, subject to the payment of the costs quantified at Rs. 10,000. 00,payable to the petitioner within eight weeks from today. The application is disposed of accordingly. CO. 6/87 ( 11 ) THE matter be listed before the Joint Registrar for recording the remaining evidence. List this matter on 21. 7. 2000 before the Joint Registrar for directions.