Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Order delivered on: 10 June, 2016
+ CS(OS) No. 764/2015
TELEFONKTIEBOLAGET LM ERICSSON(PUBL) ..... Plaintiff
Through Mr.Sandeep Sethi and Ms.Prathiba
M. Singh, Sr. Advs. with
Mr.Chander M. Lall, Ms.Saya
Choudhary Kapur, Mr.Ashutosh
Kumar, Ms.Meetali Agarwal,
Ms.Sutapa Jana, Mr.Rohin Koolwal,
Mr.Adithya Jayaraj, Mr.Devanshu
Khanna & Mr.Nikhil Chawla, Advs.
versus
LAVA INTERNATIONAL LTD ..... Defendant
Through Mr.Arun Kathpalia, Sr.Adv. with
Mr.Jayant Mehta, Mr.Ashok
Aggarwal, Mr.Swapnil Gupta,
Mr.Shwetank Tripathi &
Ms.Shivambika Sinha, Advs.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
I.A. No.5470/2016 (under Section 151 CPC, by defendant)
1. By this order, I propose to decide the defendant’s application
filed under Section 151 wherein the following reliefs are sought :
a. Pass an order fixing a fresh schedule of trial giving fair,
reasonable and proper opportunity to the defendant
and the schedule proposed by the defendant may
kindly be considered while fixing the said schedule.
b. Allow the defendant to examine DW-3 Mr. Sunil Bhalla,
the Director of the defendant after the examination of
DW-1 in view of the circumstances explained in the
application.
CS(OS) No.764/2015 Page 1 of 16
c. Leave be granted to the defendant that any additional
document filed by or may be filed by it along with
affidavit by way of evidence or otherwise may be
directed to be taken on record. Leave in this regard
may kindly be granted.
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2. By order dated 2 February, 2016, the following issues were
framed:-
“1. Whether the plaintiff is owner of following patents:
i. IN 203034 titled as “Linear Predictive Analysis
by synthesis encoding method and encoder”;
ii. IN 203036 titled as “Apparatus of producing
from an original speech signal a plurality of
parameters”;
iii. IN 234157 titled as “A method of
encoding/decoding multi-codebook fixed bitrate
CELP signal block”;
iv. IN 203686 titled as “Method and system for
alternating transmission of codec mode
information”;
v. IN 213723 titled as “Method and apparatus for
generating comfort noise in a speech decoder”;
vi. IN 229632 titled as “Multi service handling by a
Single Mobile Station”;
vii. IN 240471 titled as “A mobile radio for use in a
mobile radio communication system”;
viii. IN 241747 titled as “A transcieving omit unit
for block automatic retransmission request.”
2. Whether the defendant is infringing the abovesaid suit
patents? OPP
3. Whether the counter-claims of the defendant is barred?
OPP
4. Whether the abovesaid suit patents are invalid in nature
and are liable to be revoked in the light of the grounds
raised by the defendant in its counter claim? OPD
5. Whether the plaintiff is entitled to a decree declaring
CS(OS) No.764/2015 Page 2 of 16
that the rates offered by the plaintiff qua its portfolio of
Standard Essential Patents are FRAND in nature as
claimed? OPP
6. Whether the defendant is liable to be permanently
injuncted from infringes the plaintiff’s patents? OPP
7. Whether the plaintiff is entitled to damages or accounts
the profits? If so, on what terms and for what period?
OPP
8. Relief.”
3. As the hearing in the injunction application was being continued,
in order to show the bonafide, the defendant had handed over the
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proposed schedule of trial on 29 January, 2016:
Stage Time Granted Tentative Date
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10 days 10 February,
2016
1. Submission of List of
Witnesses by the
parties
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4 weeks 9 March, 2016
2. Filing of Evidence by
way of affidavits by
the parties.
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23 March, 2016
onwards and to be
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concluded by 1
May, 2016
3. Recording of
Evidence and cross
examination of
witnesses before
Commissioner
4 weeks
(About 2
weeks each
party)
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2 weeks 15 May, 2016
4. Filing of written
arguments by the
parties
5. Commencement of
oral arguments
To be fixed as per
convenience of the
Court.
CS(OS) No.764/2015 Page 3 of 16
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4. After framing of the issues, on 22 February, 2016, the
following guidelines were laid down:-
“…….
i. 4 weeks for filing evidence affidavits in affirmative by
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both the parties i.e. till 21 March, 2016
ii. Thereafter, cross-examination (8 hours per witness)
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i.e. 28 March, 2016-15 March, 2016;
iii. Thereafter 2 weeks for filing rebuttal evidences i.e.
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5 May, 2016;
iv. Thereafter, 2 weeks for cross-examination on
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rebuttal evidence, i.e. from 9 May, 2016 to 24
May, 2016.
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v. Commencement of final argument from 30 May,
2016…..”
5. It appears from the schedule of trial that the parties were
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granted time for filing of the rebuttal evidence on 5 May, 2016. The
common evidence of parties is to be led by both parties in the suit,
counter-claim and in the suit for declaration filed by the defendant.
6. The onus to prove issues No.1, 2, 3, 5, 6 & 7 lies on the plaintiff
who has led evidence of the following four witnesses covering the
aforesaid issues:-
(i) Mr.John Han – PW-1
(ii) Mr.Stefan Bruhn – PW-2 (Technical witness)
(iii) Dr.Jonathan Putnam – PW-3 (Expert witness on FRAND
and Damages)
(iv) Mr.Mats Sagfors – PW-4 (Technical witness)
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7. The list of witnesses filed by the defendant on 18 February,
2016 contain these witnesses namely:-
CS(OS) No.764/2015 Page 4 of 16
Sl.
No.
Name and Address Remarks
1. Sunil Bhalla, Founder Director,
Lava International Ltd.
To prove the case of
the defendant in
general and depose in
rebuttal in relation to
FRAND Negotiations
and quantum of
damages and all
points of rebuttal that
may arise.
2. Mr.GS Madhusudan, Senior
Project Advisor/ Principal
Scientist with the Computer
Architecture and Systems Lab,
Reconfigurable and Intelligent
Systems Engineering (RISE)
Group, Department of
Computer Science and
Engineering, Indian Institute of
Technology, Madras
To give expert
testimony on the suit
patents and their
nature in respect of
issue 4 as framed by
this Court and in
rebuttal on issue 2.
3. Dr.V.Kamakoti, Professor,
Department of Computer
Science and Engineering,
Indian Institute of Technology,
Madras
To give expert
testimony on the suit
and their nature in
respect of issue 4 as
framed by this Court
and in rebuttal on
issue 2.
4. Such other witnesses as may
be required in rebuttal
8. The defendant in affirmative evidence filed affidavits of two
witnesses, namely, Mr.G.S. Madhusudan, Senior Project
Advisor/Principal Scientist, IIT Madras and Dr.V. Kamakoti, Professor,
Department of Computer Science and Engineering, IIT Madras. Copies
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of the said affidavits were served upon the plaintiff on 21 March,
CS(OS) No.764/2015 Page 5 of 16
2016. These are the expert witnesses. After the conclusion of the
evidence of DW-1, i.e. Mr.G.S. Madhusudan, the defendant did not
produce second witness Dr.V. Kamakoti who is also an expert witness
as evidence in affirmative. It was contended by the defendant that he
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was not available before 1 June, 2016. From time to time, the dates
were fixed by the Court for recording his evidence, however, in the
appeal, the Hon’ble Division Bench of this Court had allowed the said
witness to be produced before the Court Commissioner for the
purposes of tendering the evidence and cross-examination as
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affirmative evidence on 1 June, 2016 onwards for the purposes of
recording of evidence.
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9. Counsel for the defendant on 3 May, 2016 has submitted that
his client has filed additional list of witnesses which contained 7 more
witnesses in addition to the previous three witnesses, however, the
defendant would restrict to only 7 witnesses including three witnesses,
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the details of which are mentioned in the list of witnesses filed on 18
February, 2016. A request was made to allow the defendant to file the
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affidavits by taking the list of witnesses on record. On 5 May, 2016,
the defendant’s counsel has handed over the details of fresh schedule
for the cross-examination of additional witnesses, which would extend
the trial beyond July/August, 2016.
10. It was alleged that heavy stake of the defendant is involved and
being a technical matter, the defendant has now decided to produce
four more expert witnesses in rebuttal evidence in response to the
evidence of the plaintiff.
11. In the meanwhile, after recording of evidence of DW-1 Mr.G.S.
Madhusudan, the defendant has filed the affidavit of Mr.Sunil Bhalla in
affirmative as well as rebuttal evidence. As Dr.V. Kamakoti was not
CS(OS) No.764/2015 Page 6 of 16
available, Mr.Sunil Bhalla has tendered his affidavit and his cross-
examination has been conducted in order save the time. The affidavit
of Mr.Sunil Bhalla, Director of the defendant-Company has been filed
as evidence in affirmative and rebuttal, as admitted by the defendant
as well as contents of the evidence, such as, ETSI IPR Policy, Offers
made by Ericsson, Similarly placed parties, FRAND rates, Damages and
Non-infringement.
12. As a matter of fact, in the said list, the details of 10 witnesses
are mentioned. However, as mentioned earlier, the witnesses no.7, 8
& 10 were given up by the learned counsel for the defendant. As far
as the witness No.9 is concerned, i.e. Mediatek Inc. through its
authorized representative, the learned counsel for the plaintiff has
rightly pointed out that no details whatsoever are given by the
defendant and even the said witness did not show his interest as per
his e-mail to come and depose before this Court. In the absence of
details, I am of the view that the witness no.9 of the list cannot be
allowed. Even otherwise, specific name of the witness, his address and
his designation in the company was not mentioned. It is submitted by
the counsel for the defendant that the remaining three witnesses, i.e.
at serial Nos.4, 5 & 6 are sought to be produced before Court for the
purpose of tendering the evidence and cross-examination on behalf of
the defendant. Their affidavits have not been filed. Time was granted
to the defendant to file the signed scanned photocopies of the
affidavits. However, despite of opportunity granted to the defendant,
the defendant failed to file the same.
13. The said fact is also evident that all the three witnesses, namely,
Mr.Madhusudan, Dr.Kamakoti and Mr.Bhalla are described as rebuttal
CS(OS) No.764/2015 Page 7 of 16
witnesses in the list of witnesses filed by the defendant, as is evidence
from the following:-
Sunil Bhalla To prove the case of the defendant in
general and depose in rebuttal in relation
to FRAND Negotiations and quantum of
damages and all points of rebuttal
G.Madhusudan To give expert testimony on the suit
patents and their nature in respect of
issue No.4 as framed by this Court and in
rebuttal on issue No.2.
V.Kamakoti To give expert testimony on the suit and
their nature in respect of issue No.4 as
framed by this Court and in rebuttal on
issue No.2.
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14. As per the order of the Division Bench dated 27 May, 2016
passed in FAO(OS) (COMM.) No.39/2016, the defendant has now also
concluded the evidence of Dr.V. Kamakoti.
15. It is argued by the plaintiff that the defendant is now not entitled
to produce any other witness as the defendant has already led both its
affirmative and rebuttal evidence covering all the issues with the
above three witnesses. Therefore, the question of producing the
rebuttal/additional evidence does not arise, as in order to bring
additional witnesses the defendant is trying to cover up the lacuna in
the garb of additional or rebuttal evidence and to improve its own case
after looking at the evidence of plaintiff’s witnesses. It is submitted by
the counsel for the plaintiff that such a right to produce witnesses is
not permissible in law. On earlier two occasions, the Court directed
the defendant in order to show its bonafide to file scanned copies of
the affidavits in order to verify as to whether such evidence is
necessary, so that the aspect of the alleged rebuttal evidence may be
CS(OS) No.764/2015 Page 8 of 16
considered but the defendant failed to file the same. It appears to the
Court from the correspondences exchanged between the counsel for
the defendant and the proposed witnesses that the witnesses were yet
to be engaged by the defendant and no commitment had been given
by the said persons to act as witnesses. In fact, a company like
Mediatek stated that it may consider giving evidence in July. The
defendant has not filed any such affidavits, rather an affidavit from the
local person has been filed on its behalf, deposing that the said
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affidavits would be filed by 28 June, 2016 of these proposed
witnesses as rebuttal evidence, although the copies of the emails
exchanged with them would show them as proposed additional
witnesses.
16. No doubt, it is apparent from record that the defendant has
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already filed evidence by way of affidavit of one Mr.Sunil Bhalla on 5
May, 2016, i.e. after conclusion of cross-examination of the plaintiff’s
witnesses. Mr.Sunil Bhalla has deposed on the following aspects:-
- ETSI IPR Policy
- Offers made by Ericsson
- Similarly placed parties
- FRAND rates
Damages
-
- Non-infringement
All the aforesaid points relate to issues No.2, 5, 6, 7 & 8 which
were framed by this Court and thus, the defendant has already filed its
evidence in reply to the plaintiff’s evidence. Further, DW-3 Dr.V.
Kamakoti has also led evidence qua non-infringement, i.e. issue No.2.
The defendant now wishes to lead further evidence which is not
permissible, as no new case is sought to be introduced by the plaintiff
CS(OS) No.764/2015 Page 9 of 16
inasmuch as the entire evidence has been led within the parameter of
facts and conformities of the pleadings and as per the issues that have
been framed. Mr.Bhalla DW-2 has already been cross-examined due
to alleged unavailability of defendant’s affirmative witness Dr.V.
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Kamakoti prior to 1 June, 2016.
17. It is a settled position of law that a party to the suit cannot
proceed with the trial at its own liberty and pleasure and it must abide
by the procedure prescribed by the Code, as held by the Supreme
Court in the case of M/s Shiv Cotex v. Tirgun Auto Plast Pvt. Ltd.
& Ors. , SLP(C) No.30105/2010, the relevant paras of which are as
under:-
“.........
16. No litigant has a right to abuse the procedure
provided in the CPC. Adjournments have grown like cancer
corroding the entire body of justice delivery system.....
......The past conduct of a party in the conduct of the
proceedings is an important circumstance which the courts
must keep in view whenever a request for adjournment is
made. A party to the suit is not at liberty to proceed with
the trial at its leisure and pleasure and has no right to
determine when the evidence would be let in by it or the
matter should be heard. The parties to a suit - whether
plaintiff or defendant - must cooperate with the court in
ensuring the effective work on the date of hearing for
which the matter has been fixed. If they don't, they do so
at their own peril......”
18. It is also upheld in the case of Rasiklal Manikchand Dhariwal
& Anr. v. M.S.S. Food Products, (2012) 2 SCC 196, that –
“……The parties must abide by the procedure prescribed in
the Code and if they fail to do so, they have to suffer the
consequences. As a matter of fact, the procedure provided
in the Code for trial of the suits is extremely rational,
reasonable and elaborate. Fair procedure is its hallmark.
CS(OS) No.764/2015 Page 10 of 16
The courts of civil judicature also have to adhere to the
procedure prescribed in the Code and where the Code is
silent about something, the court acts according to justice,
equity and good conscience. The discretion conferred upon
the court by the Code has to be exercised in conformity
with settled judicial principles and not in a whimsical or
arbitrary or capricious manner.”
19. The submission of the learned Senior counsel appearing on
behalf of the defendant is that the evidence of these witnesses is
necessary in rebuttal. Counsel also submitted that when the schedule
was framed with the consent of the parties, the opportunity was given
to both parties for rebuttal evidence. The defendant in order to
response the plaintiff, wishes to produce the rebuttal evidence in order
to discharge its burden. He also states that the prayer of the
defendant in the application is that the list of abovementioned
witnesses be taken on record and one more opportunity be given to
the defendant to produce the evidence by way of affidavit(s) on or
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before 28 June, 2016 and also the fresh schedule for tendering of
evidence and cross-examination be fixed by this Court to be conducted
in the month of July, 2016. The defendant undertakes that in case
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the affidavits of these three witnesses are not filed on or before 28
June, 2016, the right to file the evidence of the defendant be treated
as closed. Similarly, he makes the statement on behalf of the
defendant that in case the witnesses are not present as and when the
date fixed by the Court for the purpose of tendering the evidence and
cross-examination, the evidence in rebuttal be closed.
20. Counsel further submits that in case the evidence of the
defendant is recorded, the chance may be given to the plaintiff to
produce the rebuttal evidence. He says that the rebuttal evidence
means response to the evidence produced by the plaintiff. Even the
CS(OS) No.764/2015 Page 11 of 16
defendant has filed the counter claim which is to be treated as suit.
Therefore, the defendant is entitled to give the response to the
evidence of the plaintiff, as parties even otherwise received their right
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for rebuttal evidence when the schedule was fixed on 22 February,
2016.
21. On the other hand, the learned Senior counsel appearing on
behalf of the plaintiff has strongly opposed the prayer of the
application. Counsel submits that the schedule was fixed by the Court
for recording of evidence which is not adhered to by the defendant
intentionally and deliberately. The defendant is playing all types of
tricks to postpone the dates of final arguments. It is argued that there
is no justification to produce the additional evidence, as affirmative/
rebuttal evidence has already been produced by the defendant by way
of affidavit of Mr.Sunil Bhalla DW-2 whose evidence has already been
recorded. Therefore, there is no need to record the similar evidence of
other witnesses. Counsel has also pointed out that the defendant
himself has alleged that the evidence of Mr.Sunil Bhalla be taken as
affirmative as well as rebuttal. The affidavit of Mr.Sunil Bhalla was
filed after completion of evidence of DW-1. Counsel submits that if the
affidavit of Mr.Sunil Bhalla is only in respect of affirmative evidence, it
could have been filed along with the earlier two affidavits of Mr.G.S.
Madhusudan and Dr.V. Kamakoti. In fact, the defendant has already
produced the rebuttal evidence, therefore, it is a deliberate attempt on
the part of the defendant to produce the additional witnesses in order
to delay the matter. Counsel further states that the defendant on one
side was dragging the hearing of the injunction application by stating
that the evidence be recorded by that time on urgent basis and
simultaneously, the defendant is also delaying the said proceedings.
CS(OS) No.764/2015 Page 12 of 16
22. It is also submitted on behalf of plaintiff that even out of 4
witnesses, two are described as deposing on 54 agreements of the
plaintiff which by itself is in violation of the order constituting the
Confidentiality Club. These witnesses cannot be permitted to be
shown the 54 agreements (except to the conditions imposed by the
order passed by the Supreme Court). The said witnesses are different
from two expert witnesses, namely, Hon’ble (Retd.) Mr. Justice
Umeshwar Pandey, Former Judge of the High Court of Allahabad and
Hon’ble (Retd.) Mr. Justice S.S. Kulshreshtha, Former Judge of the
High Court of Allahabad who were nominated to be the part of the
Confidentiality Club by the defendant. The order constituting the
Confidentiality Club was challenged by the defendant and the said SLP
was dismissed as withdrawn.
23. The entire concept of rebuttal evidence is that each party is
given one chance to lead evidence on one issue. The plaintiff in the
present case has led evidence on all issues qua which onus was on the
plaintiff and it has the option of leading rebuttal evidence on issue
No.4 which onus was on the plaintiff and it has the option of leading
rebuttal evidence on issue No.4 upon conclusion of defendant’s
evidence on the said issue. The defendant has led evidence on all the
issues No.1-8. Counsel for the plaintiff says that at the present stage
of the case, the plaintiff is also not pressing for any opportunity to lead
rebuttal evidence thus the matter be put up for final hearing by
refusing the prayer of the application as the defendant despite of
opportunities did not file affidavit of these witnesses.
24. No doubt, there is a force in the submissions of the learned
counsel for the plaintiff, as it appears from the record that the
defendant has produced the evidence in affirmative by way of DW-1 &
CS(OS) No.764/2015 Page 13 of 16
DW-3. The evidence of DW-2 Sunil Bhalla is produced by the
defendant in affirmative as well as rebuttal evidence. However, it is
also the admitted position that the said evidence of rebuttal was
produced before concluding the evidence of Dr.V. Kamakoti (DW-3)
who has been allowed to tender the evidence and for cross-
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examination on 1 June, 2016 onwards by the Division Bench. I have
been informed that his evidence has also been concluded.
25. From the overall facts and circumstances of the case, it appears
that the defendant wishes to produce more witnesses as additional
evidence/ rebuttal evidence in relation to the subject matter of FRAND
agreement. The plaintiff has not denied that the evidence sought to
be produced is different that the evidence produced of DW-1 & DW-3,
i.e. Mr.G.S.Madhusudan and Dr.V. Kamakoti. The statement was also
made earlier by the learned counsel for the plaintiff that in case the
evidence of these witnesses is not led, the plaintiff will also not
produce the rebuttal evidence. It is not denied by the counsel for
plaintiff that the right for rebuttal evidence was also reserved by the
parties.
26. It is also pertinent to mention that as per the original schedule
contemplated as agreed between the parties, in fact, both the parties
were given time to file their respective evidence in affirmative
simultaneously. Learned counsel for the defendant has also stated
that in the affirmative evidence, the plaintiff has filed large number of
documents including the test reports and logs. Therefore, in order to
give a fair chance, the defendant is granted last one more opportunity
to rebut the evidence on the issue of FRAND Agreement. Learned
counsel for the defendant has also agreed that these witnesses may
not be permitted to be shown all the 54 agreements in the original
CS(OS) No.764/2015 Page 14 of 16
position. The said agreements would be shown to the said witnesses
directly after deletion of relevant portion in view of the order passed
by the Supreme Court. Thus, the order in this regard be passed
accordingly, however subject to the cost of Rs.50,000/- as the
defendant has failed to file the evidence of these witnesses despite of
time granted.
27. The opportunity is being given in the interest of justice, equity
and fair play coupled with the fact of assurance given by the learned
counsel for the defendant on behalf of his client that the defendant be
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granted final opportunity to file the affidavits on or before 29 June,
2016 and in case the said affidavits are not filed, the evidence of the
defendant shall be treated as closed and even if the affidavit(s) of
witness(s) are filed and the witness(s) would not present under any
circumstances before Court when the matter is fixed for tendering the
evidence and for cross-examination, the defendant agrees that the
evidence of the said witness(s) be treated as closed. As the order is
being passed after ten days when the statements were made therefore
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the time is extended upto 6 July, 2016.
28. As it is a technical matter coupled with the fact that the right to
rebuttal was reserved by the parties when the schedule was arranged
as well as affirmative and rebuttal evidence of DW-2 was concluded
before the evidence of affirmative of DW-3, one final opportunity is
granted to the defendant to file affidavit(s) as additional evidence of
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the rebuttal evidence on or before 7 July, 2016. An advance copy of
the said affidavit(s) shall be given to the learned counsel for the
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plaintiff by 4 July, 2016 who will file the affidavit as response/rebuttal
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evidence, if so required, by 25 July, 2016. The evidence of the
witness(s), whom affidavits are filed, would be recorded by the same
CS(OS) No.764/2015 Page 15 of 16
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Court Commissioner from 18 July, 2016 to 26 July, 2016 (12 hours
per witness). It would be the responsibility of the defendant to
produce them before the Court Commissioner who will produce all
details to the plaintiff’s counsel.
29. In case all the witnesses or any of the witnesses will not be
present, the evidence of the said witness(s) shall be treated as closed,
as agreed by the learned counsel for the defendant. As far as the date
of appearance is concerned, the learned counsel for the defendant will
inform the Court Commissioner as well as the learned counsel for the
plaintiff for their respective presence for the purpose of recording the
evidence.
30. As regards the rebuttal evidence of the plaintiff, the same would
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be recorded from 1 August, 2016 to 5 August, 2016 (12 hours per
witness). It is clarified that in case the defendant fails to file the
affidavit(s) or to produce the witness(s) or any of the witnesses, the
plaintiff under those circumstances, as agreed, would not be entitled to
produce the rebuttal evidence and the evidence of both the parties
shall be treated as closed.
31. The application is accordingly disposed of.
CS(OS) No.764/2015
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32. List the suit before Court on 22 August, 2016 for final hearing,
in the category of “Short Cause”. Both the parties are allowed to file
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written synopsis on or before 20 August, 2016.
(MANMOHAN SINGH)
JUDGE
JUNE 10, 2016
CS(OS) No.764/2015 Page 16 of 16