2010 (10) TMI 1023 - SC - Companies Law

Whether an objection if taken at the appropriate point of time would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular? Whether the original of the registration certificates were taken on record as additional evidence?

Issues Involved:
1. Admissibility of photocopies of trade mark registration certificates as evidence.
2. Application for additional evidence at the appellate stage.
3. Procedure followed by the trial court and the appellate court.
4. Prejudice caused to the defendants/respondents due to the procedure followed.

Detailed Analysis:

1. Admissibility of Photocopies of Trade Mark Registration Certificates as Evidence:
The trial court dismissed the appellant's suit for permanent injunction on the grounds that the appellant did not file the original trade mark registration certificates but only photocopies. The court held that under Sec.31 of the Trade and Merchandise Marks Act, 1958, the original registration or certified copies thereof must be filed as prima facie evidence of validity. The trial court remarked, "Exs.A1-A4 are xerox copies. It is well settled law that xerox copies are not admissible in evidence."

2. Application for Additional Evidence at the Appellate Stage:
The appellant filed an application under Order 41, Rule 27 CPC to admit the original trade mark registration certificates as additional evidence in the appeal before the High Court. The single judge allowed this application and set aside the trial court's judgment, granting a permanent injunction to the appellant. However, the division bench overturned this decision, stating that none of the conditions for admitting additional evidence under Order 41, Rule 27 were met. The division bench noted, "The original documents were all along in possession of the plaintiff... therefore he could not fill up the lacuna by producing them in the Appellate Court."

3. Procedure Followed by the Trial Court and the Appellate Court:
The appellant argued that the trial court erred by marking the photocopies as exhibits subject to objection, which led to the appellant being unaware that these documents would be excluded in the final judgment. The appellant relied on the Supreme Court's decision in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple, which stated that objections to the mode of proof must be raised promptly. The division bench's narrow interpretation of Order 41, Rule 27 was criticized for frustrating the ends of justice. The Supreme Court observed, "The trial court should not have 'marked' as exhibits the Xerox copies... The appellant had a legitimate grievance in appeal about the way the trial proceeded."

4. Prejudice Caused to the Defendants/Respondents:
The respondents argued that the single judge's decision to admit the original documents without allowing them an opportunity for rebuttal caused them prejudice. The division bench supported this view, stating, "Once the learned single Judge, had decided to allow the plaintiff to produce the documents, then it was necessary also to provide an opportunity to the defendants to further cross-examine the witness who produced those documents."

Conclusion:
The Supreme Court found that errors were committed at all stages. The trial court should have outrightly rejected the photocopies instead of marking them subject to objection. The single judge was correct in admitting the original documents as additional evidence but erred by not allowing the defendants/respondents an opportunity for rebuttal. The division bench was incorrect in disallowing the additional evidence but right in noting the prejudice caused to the respondents. The Supreme Court set aside the division bench's judgment and remanded the matter to the single judge to proceed from the stage where the original documents were admitted, allowing the respondents to present rebuttal evidence. The appeal was allowed with no order as to costs.

← Previous Next →