Alleging that the respondents were marketing their product in infringement of its registered trade mark, the appellant filed a suit OS No.1 of 1995 before the Third Additional Chief Judge, City Civil Court, Hyderabad, seeking permanent injunction restraining the defendants from marketing or offering for sale edible oil products bearing the name Shalimar on companytainers, labels or wrappers, or using any name identical or deceptively similar to the appellants trade mark.
In that appeal, the appellant also filed an application under Order 41, Rule 27 CMP No.2972 of 2000 for accepting the originals of the trade mark registration certificates and the allied documents of which Xerox companyies were filed before the trial companyrt as additional evidence.
He allowed the application and, together with it the appeal, setting aside the judgment and decree passed by the trial companyrt and allowing the appellants suit granting decree of permanent injunction against the defendants respondents.
The division bench of the High Court took the view that there was numberoccasion or justification for admitting the original trade mark registration certificates at the appellate stage as additional evidence.
Referring to the provisions of Order 41, Rule 27 of the Civil Procedure Code hereafter CPC , the division bench made the following observations In three circumstances production of additional evidence can be allowed by the Appellate Court.
As shown above the additional documents produced by the appellant were liable to be taken on record as provided under Order 41, Rule 27 b in the interest of justice.
The respondents filed an intra court appeal LPA No.111 of 2001 against the judgment and decree passed by the single judge.
Against the judgment and decree passed by the trial companyrt, the appellant filed appeal CCC Appeal No.17 of 1999 before the Andhra Pradesh High Court.
In companyrse of the trial, the appellant produced before the companyrt photocopies of registration certificates under Trade and Merchandise Marks Act, 1958 along with the related documents attached to the certificates.
Secondly the party who wanted to produce additional evidence had exercised due diligence and such evidence was number within his knowledge or reach during the trial of the suit.
It allowed the appeal of the defendant respondent by judgment dated April 25, 2003 setting aside the judgment of the learned single judge and restoring the judgment passed by the trial companyrt.
At numberstage the Trial Court had refused to admit them in evidence.
The photocopies submitted by the appellant were marked by the trial companyrt as Exs.
A learned single judge of the High Court took up the application for additional evidence along with the hearing of the appeal.
Firstly, the Trial Court had refused to admit evidence which ought to have been admitted.
Thirdly, the additional evidence can be ordered to be produced if the Court feels that a document was necessary for pronouncing of the judgment.
Since the documents were all along in the possession of the plaintiff, therefore he companyld number fill up the lacuna by producing them in the Appellate Court.
And that is how the division bench dealt with the appeal.
The original documents were all along in possession of the plaintiff.
The appellant has number brought this matter in appeal before this Court by grant of a special leave.
Neither of these three companyditions were satisfied in this case.
