The Delhi High Court has dismissed an application under Order XI Rule 1(5) of the CPC seeking leave to place additional documents on record in a trademark infringement suit, holding that a plaintiff cannot convert documents always within its custody into "subsequently discovered" evidence by deferring the search of its own premises. The Court ruled that the plaintiff's explanation - that records were found during a Diwali cleaning - was illogical and failed to establish reasonable cause for non-disclosure along with the plaint, especially when similar documents from the same period had already been filed at institution.
Background & Facts
The Dispute
The plaintiff, MS Cafe Brown Sugar Pvt Ltd, operates cafes and sells food products under the "BROWN SUGAR" family of marks, claiming prior adoption and continuous use since the year 2000. The defendants, Vyom Foodcraft Pvt Ltd and Richa Jalani, filed trademark applications for similar marks claiming use from 26.10.2010. The plaintiff instituted a commercial suit on 13.11.2024 seeking permanent injunction against infringement, passing off, and copyright violation.
Key Facts
- The plaintiff claimed use of the "Brown Sugar Family of Marks" since 2000; defendants' trademark applications claim use from 26.10.2010
- Suit instituted on 13.11.2024; first hearing on 14.11.2024; issues not yet framed; admission/denial of documents not commenced
- Additional documents sought to be produced pertain to period 23.01.2003 to 31.03.2011 and include:
- Sales invoices and ledgers (23.01.2003 to 28.12.2009)
- Purchase bills and supplier invoices (02.07.2003 to 18.06.2009)
- Promotional and marketing materials (01.04.2004 to 08.04.2009)
- TDS Certificates/Form 16-A for Assessment Year 2011-2012 (01.04.2010 to 31.03.2011)
- Plaintiff's justification: documents were untraceable at filing; discovered during "Diwali cleaning" at godown and office store rooms in 2025
- Authorised representative and Director stated her late husband managed business until his demise on 20.11.2017; she took over in early 2018 and had no knowledge of precise location of older physical records
Procedural History
- 13.11.2024: Commercial suit CS(COMM) 1008/2024 filed with initial documents including purchase invoices from 2001, sales invoices from 2003, and sales account for 2004-05
- 13.12.2024: Additional documents filed (second tranche)
- 04.04.2025: I.A. 9199/2025 filed seeking to place four documents on record
- 08.05.2025: Court allowed three documents in I.A. 9199/2025 subject to costs of ₹30,000; one document dated 26.04.2023 rejected as it was in plaintiff's power at filing
- 10.09.2026: Court granted two weeks to file additional affidavit in support of present application
- 22.09.2026: Additional affidavit filed by authorised representative
- 14.10.2026: Matter reserved for judgment
- 29.10.2026: Judgment pronounced dismissing I.A. 44967/2024
The Parties' Positions
Plaintiff: Contended that threshold of "reasonable cause" under Order XI Rule 1(5) is lower than "sufficient cause" or "good cause"; procedure should not defeat fair adjudication; documents corroborate pleaded case of continuous use; no prejudice to defendants; relied on Agva Healthcare, Hassad Food Company, Darrameks Hotels, Xero Degrees, Dhawan Box Sheet Containers, and Sabu Trade Pvt Ltd.
Defendants: Argued plaintiff failed to establish reasonable cause; documents were always in plaintiff's power, possession, control, and custody; plaintiff filed documents in five tranches; two documents in current application identical to those filed with plaint (invoice dated 08.04.2008 and sales account for 2004-05); TDS certificates accessible from Income Tax Department or Chartered Accountant; plaintiff bolstering case after written statement filed.
Relief Sought
Plaintiff sought leave to place additional documents on record to substantiate continuous commercial use of the mark prior to defendants' claimed user date of 26.10.2010.
The Legal Issue
The central question was whether the plaintiff established "reasonable cause" under Order XI Rule 1(5) of the CPC (as amended by the Commercial Courts Act, 2015) for non-disclosure of documents along with the plaint, where the documents were physically located in the plaintiff's own premises at the time of filing but claimed to have been discovered only during a subsequent "Diwali cleaning" exercise.
Arguments Presented
For the Plaintiff
Counsel submitted that the phrase "reasonable cause" in Order XI Rule 1(5) requires a lower degree of proof than "good cause" or "sufficient cause," citing Hassad Food Company Q.S.C. v. Bank of India where the Court held that "reasonable cause" would require even a lower degree of proof compared to "good cause." It was argued that the documents were contemporaneous invoices supporting the plaintiff's pleaded case of prior adoption and continuous use since 2000, and that no new case was being set up. The plaintiff emphasized that the omission was inadvertent, the documents were discovered during an annual cleaning exercise, and the defendants would have sufficient opportunity to deal with them at trial. Reliance was placed on Agva Healthcare, Darrameks Hotels, Xero Degrees, Dhawan Box Sheet Containers, and Sabu Trade Pvt Ltd to argue that procedure, as a handmaid of justice, ought not to obstruct fair adjudication.
For the Defendants
Senior counsel contended that Order XI Rule 1(5) imposes an embargo on the Court not to allow the plaintiff to rely on documents in its power, possession, control, or custody unless reasonable cause is established for non-disclosure. The defendants highlighted that the plaintiff had filed documents in five tranches, demonstrating a pattern of piecemeal disclosure. Crucially, they pointed out that the plaintiff had already filed purchase invoices from 2001, sales invoices from 2003, and the sales account for 2004-05 along with the plaint - documents of the same period and nature as those now sought to be produced. Two documents in the current application were identical to those already filed (invoice dated 08.04.2008 at page 40 matching page 480 of plaint documents; sales account for 2004-05 at page 08 matching page 499). The defendants argued it defied logic that the first page of the sales account was available at filing while remaining pages remained hidden, and that TDS certificates were easily accessible from the Income Tax Department or the Chartered Accountant.
The Court's Analysis
The Court began by outlining the statutory framework distinguishing ordinary suits from commercial suits. Under Order VII Rule 14(3) CPC in ordinary suits, leave of Court suffices for late filing without prescribed grounds. However, Section 16 of the Commercial Courts Act, 2015 mandates that the CPC as amended by the Act prevails for commercial disputes of specified value. Order XI Rule 1(5) creates an embargo: the plaintiff shall not be allowed to rely on documents in its power, possession, control, or custody not disclosed with the plaint, save by leave of Court granted only upon the plaintiff "establishing reasonable cause" for non-disclosure.
The Court surveyed a consistent line of precedents. In Nitin Gupta v. Texmaco Infrastructure & Holding Ltd., a coordinate bench held that Commercial Divisions must enforce Rules legislated for commercial suits and refuse applications for late filing without good cause. In Zee Entertainment Enterprises Ltd. v. Saregama India Ltd., the distinction was crystallized: in commercial suits, the embargo can be lifted only upon the plaintiff "establishing" reasonable cause - the word "establishing" conveying that something more than mere explanation is required, amounting to proof.
The Court then examined the exception carved out in Sudhir Kumar @ S. Baliyan v. Vinay Kumar G.B., where the Supreme Court held that the rigour of establishing reasonable cause does not apply if the additional documents were "discovered subsequent to the filing of the plaint" and "in fact were not in the plaintiff's power, possession, control or custody at the time when the plaint was filed." The emphasis is on the fact of possession, not the time the plaintiff chooses to look for documents.
Applying this to the facts, the Court found: (1) The documents were at all times lying in the plaintiff's own godown and store rooms; they did not come from any external source after institution. (2) The plaintiff "chose to discover the documents subsequently" - a party cannot defer search of its own records to a time of its convenience to escape the rigours of Order XI Rule 1(5). (3) The plea of prior adoption and continuous use since 2000 was the foundation of the plaint; the need for documentary support was apparent at institution and did not arise only in response to the written statement. (4) The plaintiff had already filed documents of the same period and nature with the plaint, including purchase invoices from 2001, sales invoices from 2003, and the sales account for 2004-05. Two documents now sought were identical to those already filed. (5) It defied logic that the first page of the 2004-05 sales account was filed with the plaint while remaining pages of the same account remained hidden in cartons. (6) The "Diwali cleaning" explanation lacked specifics - when, by whom, which godown, why records could not be searched before plaint verification. (7) The authorised representative took over in early 2018, over six years before suit filing; change in management is an internal arrangement, not a cause outside plaintiff's control. (8) Indulgence had already been shown once in I.A. 9199/2025 with costs; accepting "inadvertent mistake" repeatedly would make the process endless.
The Court concluded that the plaintiff failed to establish any reasonable cause, the explanation was "not only untrue but also extremely illogical," and the application must be dismissed.
"A party cannot, by deferring the search of its own records to a time of its convenience, convert documents which were always in its custody into subsequently discovered documents, and thereby take itself out of the rigours of Order XI Rule 1(5) of the CPC. If such a course were permitted, the requirement of disclosure along with the plaint, and the declaration on oath under sub-rule (3), would be reduced to a mere formality, since any party could avoid the statutory consequence simply by not looking."
The Verdict
The application (I.A. 44967/2024) was dismissed. The documents filed along with the application shall not form part of the record of the suit. The main suit CS(COMM) 1008/2024 was listed for further proceedings on 09.12.2026. No costs were expressly awarded in the operative order beyond the dismissal.
What This Means For Similar Cases
Deferred Search Does Not Create "Subsequent Discovery"
- A plaintiff cannot evade the disclosure obligations under Order XI Rule 1(5) by simply delaying the search of its own premises. The fact of possession at the time of filing the plaint is determinative, not the plaintiff's subjective awareness or decision to search.
- Records kept in a party's own godown, store rooms, or archives are presumed to be in its power, possession, control, and custody regardless of whether the current management knows their precise location.
- Practitioners must advise clients to conduct comprehensive record searches before filing the plaint and make full disclosure with the declaration on oath under Order XI Rule 1(3).
Filing Similar Documents Undermines "Reasonable Cause"
- If a plaintiff has already filed documents of the same period, nature, and source with the plaint, it becomes nearly impossible to argue that other documents from that same set were outside its custody or could not have been discovered with due diligence.
- Identical or duplicate documents appearing in later tranches (as happened here with the 08.04.2008 invoice and 2004-05 sales account) strongly indicate the plaintiff had access to the entire record at filing.
- Courts will view multiple tranches of filing as a pattern of piecemeal disclosure that the Commercial Courts Act was designed to prevent.
Internal Management Changes Are Not "Outside Control"
- A change in the person managing a company's affairs (e.g., new director, authorised representative) is an internal arrangement and does not constitute a cause outside the plaintiff's control.
- Lack of knowledge about the precise location of one's own records amounts at best to documents being "misplaced or not immediately available," which does not absolve the disclosure obligation in commercial suits (Nitin Gupta followed).
- The "Diwali cleaning" or similar ad hoc discovery narratives, without specific details (date, personnel, location, reason for prior inability to search), will be treated as bald assertions insufficient to establish reasonable cause.
