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On the fast track

The Indian legal system has long been regarded as slow and inefficient. However, Dhruv Anand of Anand and Anand says brevity is now the trend following a series of recent High Court decisions

Documents play a crucial role in the ultimate outcome of a case. However the tendency of parties to rely upon irrelevant and voluminous documents, when only a few documents proving the relevant issue in a case are necessary, has added to the life span of a litigation.

This is exactly what the judiciary, clients, and lawyers are seeking to avoid. The judiciary in India, especially the Delhi High Court, has developed speedy mechanisms resulting in the fast resolution of an IP case. These measures have evolved recently and are a welcome change from the slow and time-consuming litigation associated with India. Some of the most important measures include:

• Introducing e-filing pleadings and supporting documents. Some of the court rooms of the Delhi High Court are equipped with large LCD screens with modern software and applications and pleadings filed are shown on the screen for those present in the proceedings to view.
• Promoting the idea of a paperless Court. The Delhi High Court is providing lawyers with free digitised versions of the pleadings and documents.
• Creating a fast track trial by passing a series of four month orders in IP cases.
• Ending the grant of adjournments on frivolous grounds.
• Imposing heavy costs on parties that delay proceedings in any manner.
• Admitting and denying documents on affidavits
• Exempting witnesses from carrying out exhibit marking. At times, it is not viable for a foreign witness to travel from overseas for an ex parte matter as it involves huge costs, which may not be recovered.
• Introducing examination of witnesses by affidavit, which was made mandatory by a 2002 amendment of the Civil Procedure Code.
• Keeping mediation and conciliation in active use at the Delhi High Court. Matters are referred for mediation or other forms of alternate dispute resolution under Section 89 of the Civil Procedure Code.
• Exempting witnesses from appearing in person before the Court to tender evidence such as in Cisco Technology Inc v Shrikanth & Ors in 2007 and Dell Computer Corpn v Arun Kumar & Ors in 2005. In Cisco Technologies v Santosh Tantia and Anr in 2010, the Delhi High Court allowed the witness to carry out exhibit marking of documents through video conferencing. This is just one of many examples of the technology savvy initiatives taken by various courts in India.
• Deciding IP cases within a year. The Supreme Court decision in M/s Shree Vardhman Rice & Gen Mills v M/s Amar Singh Chawalwala and Bajaj Auto Ltd v TVS Motor Company Ltd were instrumental in bringing about this change. The direction was to try to finish IP cases within four months. Although this is not an easy task, it has highlighted the change in attitude towards IP.

The fast track schedule

When an IP case is on the fast track, the speed at which the litigation progresses can often be dizzying. It is advisable to have the court set a time schedule as early as possible in a case. In patent matters, this becomes even more important as courts rarely grant injunctions, as at times an injunction can bring a defendant's business to a complete halt.

The court usually passes an order setting the matter on a fast track mode. After pleadings are completed the court instructs the parties to file all the original documents they intend to rely upon within four weeks. Parties are then directed to conduct admission and denial of documents through affidavits within two weeks.

Two weeks after the admission and denial of documents the matter is then listed before the court to frame the issues. The plaintiff is then required to file their evidence by affidavit within four weeks. The court then orders the cross examination of the plaintiff's witness before a special local commissioner. Consecutive dates are given for cross examination, which is highly convenient for a foreign witness visiting India.

Also, the court may impose a limit on the number of hours that a lawyer can cross examine a witness and the number of witnesses that can be examined, as ruled by the Delhi High Court in Koninklijke Philips Electronics NV v M Bathla & Anr (CS (OS) No 635/2004). This avoids repetitive questioning and badgering of witnesses. The defendant is then required to file their evidence by affidavit within four weeks. After the cross examination of the defendants' witness or witnesses, the matter is listed before the court for final arguments. If the timeframe is liberally construed, the suit can be concluded within a year in an IP matter.

Filing documents

When a schedule like the one above is set, the speedy and efficient collection and filing of documents is crucial. A legal action is started by filing a plaint or pleading. In India under the Code of Civil Procedure (CPC), which governs all civil suits, the first step is the presentation of material facts and allegations that have led to the action before the court, as provided for by Section 26 of the CPC. Order 6 deals with pleadings generally, while Order 7 deals with the plaint and Order 8 deals with the written statement (see box).

Only the material facts should be contained in the pleading and not evidentiary facts. Documents and evidence by affidavits are used to prove the material facts. Once the plaint is filed, the defendant is required to file a written statement in response to the plaint where the defendant denies the allegations made by the plaintiff and sets out the defences. The denials must be specific and not evasive.

Each party is required to file its documents along with the pleadings. If the party fails to produce a document along with the pleading, it may only present it later at the suit hearing with the permission of the court.

India's Civil Procedure Code

The following provisions in the CPC provide clarification about how IP lawsuits should be conducted in India.

Order VII Rule 14:

Where a plaintiff sues based upon a document or relies upon a document in his possession or power in support of his claim, he shall enter such document in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the plaint.

Order VIII Rule 1A:

Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

The exceptions to the above rules are found in the provisions below.

Order 7 Rule 14(3):

A document which ought to be produced in Court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit.

Order 8 Rule 1A(3):

A document which ought to have been produced in court by the defendant under this rule, but, is not, shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit.

Order 7 Rule 14 (3) of the CPC was inserted by the Amendment Act, 2002 of the CPC. Similarly the same amendment inserted Order 8 Rule 1A.

Documents not referred to in the plaint or written statement can be received in evidence at the hearing of the suit. The hearing of the suit continues until the pronouncement of the judgment, and the documents can be produced with the leave of the court until a judgment is pronounced in the case.

The courts have generally been very liberal in allowing parties to file additional documents at different stages of the suit, where they have not been filed along with the plaint or written statement. The object seems to be to ensure fairness between the parties. Since the amendment, the strict approach to the filing of original documents no longer exists.

Admissible documents

There are also enough safeguards in place to ensure that only genuine and relevant documents are allowed to be put on record.

As a rule, a document which is irrelevant is not admissible. Another important rule is that there is a distinction between proving a document and proving a fact by a document (Justice, Courts and Delay, by Mr Arun Mohan, a senior advocate of the Delhi High Court). The document must be produced for proving a particular fact in a pleading, but if the document itself creates facts, proof of that document becomes necessary.

Merely exhibiting a document does not prove that document and documents are exhibited for the convenience of the court. This has been held by the Supreme Court of India in the case of Taraji Khimechand v Yelamarti Satvam (AIR 1971 SC 1865). Documents have to be proven through evidence, which can be filed in the form of affidavits under Order 18 of the CPC. Section 1 of the Evidence Act, 1872 excludes affidavits from the scope and applicability of the Evidence Act, but the CPC has recognised producing evidence by way of affidavits.

The practice of admission and denial of documents also limits the controversy between the parties. However, just because a party admits a document, that does not mean that that document is proven and it must be proven in accordance with law if the party relies on the document.

Document selection

Documents in litigation have gained in importance, especially in IP disputes. Instead of filing hundreds or even thousands of documents, a party should focus on filing the relevant documents which prove the facts. For example, in trade mark cases, instead of filing bulky invoices to establish prior use, a few invoices would suffice. Similarly instead of filing annual reports to prove reputation in a trade mark case, a few original advertisements are enough. Ideally, an IP owner should identify the documents that will be required at trial first. Courts like brevity. This is evident from various orders passed by the Delhi High Court where the Court has instructed the parties to file a brief written synopsis of arguments, brief notes on arguments and specifically requires that this should not exceed two to three pages. On February 14 2011 in MST Kiran Chhabra and Anr v Pawan Kumar Jain and Ors (CS (OS) No 167/2009), the Delhi High Court passed an Order laying down guidelines for filing a written synopsis of arguments where some very interesting observations were made by Honourable Mr Justice J R Midha. The judge noted in his order: "Lastly, keeping them brief is more helpful than giving a long mass of something which could even be incoherent. Structuring is more important. If an approach like this is followed, the Court gets full assistance, much lesser time of the Court is consumed and there is less likelihood of the Court falling into error."

Using technology

Lastly, with the advance of technology, internet printouts have become highly relevant in proceedings and at times play a pivotal role. The internet is a wide repository of information and provides a sea full of evidence.

In a decision rendered by the Delhi High Court in Société des Products Nestlé SA & Anr v Essar Industries & Ors (2006 (33) PTC 469 Del), the Court praised the legislature for inserting sections 65 A and B on the admissibility of computer generated evidence into the Evidence Act, in reaction to the rapid rise in IT in the last decade of the 20th century.

Originals or copies

In Aktiebolaget Volvo and Ors v R. Venkatachalam and Anr on May 18 2009, the judgment of the Delhi High Court established some important principles which have far-reaching implications not only in IP disputes, but also in general litigation. In that case, the question was whether it is permissible by law to permit a party to file only a photocopy of the document, exempt the party from placing the original document on the file of the court, only allow the opposite party to inspect this document at the time of admission or denial of documents and at the time of tendering the document into evidence and to put the exhibit mark again on a photocopy of the document in the file of the court.

After interpreting the meaning of the word document in connection with the Indian Evidence Act, the Indian Penal Code and the General Clauses Act, the Delhi High Court held that the scheme of the legislative provisions permits filing of copies and producing the respective originals only for the purposes of inspection. However, if the document is in doubt or the court requires the original on the file of the court for any other reason, the court can always instruct the party to file the original.

Arun Mohan, a senior advocate of the Delhi High court, has recently published two volumes of a book titled Justice, Courts and Delays. This book gives an insight into various aspects of the CPC and makes various recommendations on how delays can be avoided thereby resulting in the speedy disposal of a case.

The trend today is for faster justice with real practical solutions being offered. The courts prefer brief arguments, pleadings and the selection of the most important documents. Lengthy arguments and pleadings accompanied by piles of documents are frowned upon. This is primarily because courts are often burdened with enormous work pressure.