“Diwali Cleaning” Cannot Convert Documents Always In Plaintiff’s Custody Into “Subsequently Discovered” Ones: Delhi High Court Dismisses Plea For Additional Evidence
The Court held that the records lying in plaintiff’s own godown cannot be treated as “subsequently discovered” under Order XI Rule 1(5) CPC; notes first page of same sales account was filed with plaint.
Justice Purushaindra Kumar Kaurav, Delhi High Court
The Delhi High Court has held that a plaintiff in a commercial suit cannot avoid the disclosure regime under Order XI Rule 1(5) of the Code of Civil Procedure by claiming that documents surfaced during a “Diwali cleaning” of its own premises. The Court said 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”.
Dismissing the plaintiff’s application, the Court held that the exception recognised in Sudhir Kumar v. Vinay Kumar G.B. (2021) 13 SCC 71 applies only where documents were in fact not in the plaintiff’s power, possession, control or custody when the plaint was filed. It noted that the plaintiff had already filed the first page of its sales account for 2004-05 and an invoice dated April 8, 2008 with the plaint.
A Bench of Justice Purushaindra Kumar Kaurav observed, “… The stated reason that the documents were found during a Diwali cleaning in the year 2025 does not, therefore, inspire any confidence. Apart from a bald averment, the application does not disclose when the said exercise was carried out, by whom the documents were traced, which godown or store room they were found in, or why the plaintiff‟s records could not be searched before the plaint was verified…it is a case where the plaintiff has itself chosen to discover the documents subsequently. 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”.
“…this Court is of the considered opinion that the documents sought to be placed on record were in the power, possession, control and custody of the plaintiff at the time of the institution of the suit. That it is not a case of documents being discovered subsequently, but of the plaintiff having chosen to discover them subsequently; and that the reason and justification put forth by the plaintiff for seeking leave, namely, the discovery of the documents during a Diwali cleaning, is not only untrue but also extremely illogical…”, it noted further.
Advocate Nikhil Chawla appeared for the plaintiff and Senior Advocate Neeraj Grover appeared for the defendant.
The suit, filed on November 13, 2024, seeks a permanent injunction against infringement of trade mark and copyright and passing off in relation to the “BROWN SUGAR” family of marks. The plaintiff claims use since 2000, while the defendants claim use from October 26, 2010.
The plaintiff sought leave to place on record sales invoices, purchase bills, promotional material and TDS certificates dated between 2003 and 2011. It said the documents were found in old cartons during a Diwali cleaning. Its director added that her late husband had managed the business until his death on November 20, 2017, and that she took over in early 2018.
The defendants pointed out that the plaintiff had filed documents in five tranches. Three documents had earlier been allowed subject to costs of ₹30,000 by order dated May 8, 2025. They also showed that two documents now tendered were identical to those filed with the plaint.
The Court held that the documents were “not a case where the documents were discovered subsequently” but one where the plaintiff “has itself chosen to discover the documents subsequently.” It rejected the plea that the documents responded to the defendants’ case, since prior use was the foundation of the plaint. It found it “defies logic” that the first page of an account was located while the rest stayed hidden, and that the application gave no details of who found the documents, where, or when. A change in management was an internal arrangement, and misplacement did not absolve a commercial litigant of disclosure, it said, relying on Nitin Gupta. Allowing repeated pleas of fresh discovery would make the process “endless.”
“It defies logic that the plaintiff could have located and filed the first page of its sales account for the year 2004-05 along with the plaint, and yet the remaining pages of the very same account remained hidden in old cartons, only to surface during a Diwali cleaning nearly a year later. Records of the same account, of the same period and of the same nature are not ordinarily kept at different places, and no such case has even been pleaded”, it said.
The Court concluded that the Diwali cleaning explanation was “not only untrue but also extremely illogical.” The application was dismissed, and the documents will not form part of the record. The suit will be heard next on December 9, 2026.
Cause Title: M/s Cafe Brown Sugar Pvt Ltd v. Vyom Foodcraft Pvt Ltd and another (Neutral Citation: 2026:DHC:9604)
Appearances:
Plaintiff: Nikhil Chawla, Mansha Mehta and Parul Tuli, Advocates.
Defendants: Neeraj Grover, Senior Advocate, Yatin Chadha, Dolly Luthra, Kashish Sethi, Gurvinder Singh and Sanandika Pratap Singh, Advocates.