Safiya Malik

The Delhi High Court dismissed an application filed by the plaintiff, Zee Entertainment Enterprises Ltd., seeking permission to introduce additional documents and an affidavit of evidence at an advanced stage of the proceedings. The court found that the plaintiff had not demonstrated due diligence or reasonable cause for the delayed submission of documents that had been de-exhibited earlier due to the lack of originals.

The plaintiff initiated a suit seeking a permanent injunction against the defendant, Saregama India Ltd. & Ors., to restrain the alleged infringement of its copyright in sound recordings embedded in 29 cinematograph films. The plaintiff’s claim was based on assignment agreements purportedly executed between itself and various production houses or their legal successors.

In its initial submissions, the plaintiff provided copies of assignment agreements but was unable to produce their originals. On March 18, 2019, the court de-exhibited these documents due to the absence of originals. The plaintiff then attempted to retrieve the originals by reaching out to third parties believed to be in possession of them.

To support its claim, the plaintiff filed an application under Order XI Rule 1(5) of the Code of Civil Procedure (CPC), seeking to place on record additional documents, including correspondence sent to the relevant third parties. Additionally, an affidavit of evidence by its witness was submitted to explain the efforts made to retrieve the originals.

The plaintiff contended that the additional documents were critical in proving its copyright ownership. It argued that the documents complied with Sections 65 and 66 of the Indian Evidence Act, 1872, for leading secondary evidence. The plaintiff submitted that the letters it sent between November 2023 and February 2024 were necessary to demonstrate the efforts undertaken to procure the original documents that had been de-exhibited in March 2019.

The plaintiff further argued that the submission of additional documents would not prejudice the defendant since the examination-in-chief of its witness had not yet concluded and cross-examination had not commenced. It claimed that excluding these additional documents would cause harm to its ability to establish ownership over the disputed copyright works.

The plaintiff had initially filed an application on August 29, 2024, seeking permission to place additional documents on record. However, this application was withdrawn on October 28, 2024, with liberty to file afresh. The present application was then filed on October 29, 2024.

The defendant opposed the application, contending that the plaintiff had been inconsistent in its statements regarding the possession and custody of the disputed documents. The defendant pointed out that the plaintiff had been aware of the need to locate these documents since March 2019, when they were de-exhibited, yet it had delayed its efforts for over four years.

The defendant also noted that a previous application filed by the plaintiff in 2019 to introduce additional documents had been denied, as the plaintiff had failed to establish a reasonable cause for the delayed submission. It further argued that the current application was yet another attempt to reinforce the plaintiff’s case at an advanced stage of trial, causing unnecessary delay in the proceedings.

The court examined the procedural history of the case and observed that the plaintiff had been aware of the missing originals since at least 2017. Despite this, it failed to take timely steps to either retrieve them or submit secondary evidence. The judgment noted:

"Clearly, if the plaintiff is asserting its rights in the suit on the basis of the documents referred to herein, it ought to have had in its possession the originals of these documents at the time of the filing of the suit."

The court further examined whether the plaintiff had met the requirements under Order XI Rule 1(5) of CPC, which mandates that a party must show a "reasonable cause" for late filing of documents. It held that the plaintiff’s assertion that it was unable to locate third-party addresses for several years was not a sufficient justification for the delay.

The judgment cited RMC Project Management International, LLC v. Whizlabs Software Private Limited, stating:

"The plaintiff cannot claim benefit of its own neglect. In fact, Section 65(c) of the IEA requires that the party wanting to prove a document through secondary evidence should itself not be in default or neglect."

The court rejected the plaintiff’s argument that the additional documents had only recently come into existence, making it impossible to file them earlier. It observed:

"If this were to be true, a party can keep writing letters during the pendency of a suit to further its case and subsequently, place them on record by taking a stand that they came into existence after filing of the suit."

The judgment further pointed out that the plaintiff had sent four letters between November 15, 2023, and February 13, 2024, but only filed the present application on October 29, 2024, demonstrating a lackadaisical approach to procedural compliance. The court stated:

"Clearly, prejudice has been caused to the defendant on account of filing of the present application as the trial in the suit, which began on 18th March 2019, has been inordinately delayed."

After examining the submissions of both parties, the court dismissed the application, concluding that the plaintiff had failed to show reasonable cause for the delay. It imposed costs of Rs. 25,000 on the plaintiff, payable to the defendant within two weeks.

Additionally, the court directed that the suit proceed without further delay and scheduled the next hearing before the Joint Registrar on April 9, 2025.

The judgement stated:

"The present application is dismissed, and costs of Rs. 25,000 are imposed on the plaintiff. The suit shall proceed as per the directions already issued, and the matter is listed before the Joint Registrar on 9th April 2025."

Case Title: Zee Entertainment Enterprises Ltd v. Saregama India Ltd & Ors.
Case Number: CS(COMM) 1674/2016
Bench: Justice Amit Bansal

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