Delhi HC Rejects Restaurant Owner’s Bid to Add 25 Late Records to ‘Karim’ Trademark Suit, Finding They Were in His Custody

The petitioner, which claims rights in the marks “KARIM”, “KARIM’S” and “KAREEM”, sued the respondent for using “GULSHAN-E-KARIM” for his restaurant.

The respondent’s defence was that the name had been adopted and used since 1997.

After filing his written statement, the respondent sought leave under Order XI Rule 1(10) and (12) CPC to place 25 additional documents on record, stating that they had recently been found during renovation work at his premises.

The Commercial Court allowed the application, finding the documents relevant and accepting the explanation, subject to costs of ₹20,000.

The petitioner challenged that order under Article 227, arguing that the respondent had not established reasonable cause for the late disclosure.

The respondent objected to the petition’s maintainability, given the restricted appeal provisions applicable to Commercial Court orders.

Article 227 supervisory jurisdiction is not appellate and is exercised sparingly, but remains available to correct grave dereliction, jurisdictional error or flagrant violation of law; it does not permit mere reappraisal of facts or substitution of a plausible view (Garment Craft v. Prakash Chand Goel; Nandi Infrastructure Corridor Enterprises Ltd. v. B. Gurappa Naidu).

Under Section 13(1A) of the Commercial Courts Act, 2015, read with Order XLIII CPC, an order under Order XI Rule 1(10) is not appealable; the absence of an appeal does not extinguish Article 227 jurisdiction, though restraint is required.

Order XI Rule 1(10) CPC permits a defendant to rely on documents not disclosed with the written statement only by leave of court, and leave may be granted only upon the defendant establishing reasonable cause for non-disclosure.

The court must determine whether the documents were within the defendant’s power, possession, control or custody when the written statement was filed; relevance alone does not satisfy the statutory test.

Documents discovered subsequently and genuinely outside a party’s custody may stand differently, but misplaced or forgotten documents remain subject to disclosure obligations (Sudhir Kumar @ S. Baliyan v. Vinay Kumar G.B.; Nitin Gupta v. Texmaco Infrastructure & Holding Ltd.).

The High Court held that the Article 227 petition was maintainable, while emphasising that intervention in an interlocutory Commercial Court order required more than a disagreement over discretion.

The documents were the respondent’s business records—including licences, tax records, invoices and bank statements—relating to his own restaurant and found at his premises.

The Commercial Court had not determined whether they remained in his custody when he filed the written statement, and it accepted the renovation explanation without examining when or how the documents were found.

The explanation also shifted before the High Court, while the respondent’s pleaded use since 1997 made the relevance of contemporaneous records apparent from the outset.

By treating relevance and necessity as sufficient, rather than requiring the respondent to establish reasonable cause outside his control, the Commercial Court failed to apply the statutory precondition.

The error was therefore a violation of the governing rule, not merely an alternative exercise of discretion, warranting supervisory intervention.

It allowed the petition, set aside the order dated 9 December 2025 and dismissed the respondent’s application to place the additional documents on record.

The Court clarified that it expressed no opinion on the merits of the respondent’s defence of adoption and use of the mark since 1997.