WHERE THE DEFENCE FINDS ITS VOICE: THE SUPREME COURT ON THE LIMITS OF CROSS-EXAMINATION
In Shabu KN Achary v. Dharampal Premchand Limited, 2026 INSC 819, decided on 7 August 2026 by a Bench comprising Hon’ble Mr. Justice J.B. Pardiwala and Hon’ble Mr. Justice K. Vinod Chandran, the Supreme Court of India examined an important question concerning the scope of cross-examination in a civil suit. The Court considered whether a Defendant, whose written statement had not been taken on record, could nevertheless question the Plaintiff about the brand name forming the basis of the Plaintiff’s claim for trademark infringement and damages.
THE DISPUTE BEFORE THE COURT
The Suit involved several reliefs, including a permanent injunction restraining the Defendant from infringing the Plaintiff’s trade dress, a declaration concerning the Plaintiff’s trademarks under the Trade Marks Act, 1999 and a claim for damages. The Plaintiff alleged that the Defendant was using its brand name along with similar packaging and trade dress. The allegations also extended to infringement of the Plaintiff’s registered copyright and trademark.
During cross-examination, the Defendant sought to put a specific question to the Plaintiff: “Is it correct that you have no document to show that since when mark BABA is being used?”. The High Court treated this as a purely factual question which fell outside the permissible scope of cross-examination. Since the Defendant’s written statement had also not been taken on record, the question was expunged.
THE SUPREME COURT’S APPROACH
The Supreme Court did not agree with the High Court’s reasoning. The Court noted that the Plaintiff itself had asserted trademark infringement and had relied upon its rights in the relevant brand and trade dress. In such circumstances, the Defendant could not be prevented from questioning the Plaintiff about the documentary basis for claiming use of the mark from a particular point in time.
The Court, therefore, made an important distinction between putting forward an entirely new case through cross-examination and testing the factual foundation of the case already advanced by the Plaintiff. The question asked by the Defendant was not unrelated to the dispute. Rather, it sought to examine whether the Plaintiff possessed documents establishing when it had commenced using the mark “BABA”.
CROSS-EXAMINATION AS A TOOL OF TESTING EVIDENCE
The decision reinforces the fundamental role of cross-examination in a trial. Cross-examination is not simply a procedural formality; it provides the opposing party an opportunity to test the truth, reliability and evidentiary basis of assertions made by a witness.
In the present case, the question regarding the date from which the Plaintiff claimed to have used the mark was directly connected with the Plaintiff’s assertion of trademark rights. The fact that the Defendant’s written statement was not on record could not, by itself, completely shut out a question which arose from the Plaintiff’s own case.
This is particularly significant in intellectual property disputes. Claims concerning trademarks and trade dress often depend upon factual matters such as adoption, use and continuity of use. A party asserting such rights must necessarily be open to questions concerning the evidentiary foundation of those assertions.
NO FINDING ON THE MERITS
The Supreme Court was nevertheless careful not to express any opinion on the merits of the underlying trademark dispute. It confined its decision to the question of whether the defendant was entitled to put the disputed question to the Plaintiff.
The Court accordingly reversed the High Court’s Order and directed that the trial proceed after recalling the Plaintiff and recording the Plaintiff’s answer to the question. The Parties were left free to raise all their respective contentions during the trial.
A REMINDER ABOUT THE RIGHT TO TEST THE CASE
The significance of Shabu KN Achary lies beyond the particular trademark dispute before the Supreme Court. The Order serves as a reminder that procedural rules governing trials should not be applied in a manner that prevents a party from testing the very foundation of the case it is required to meet.
A Plaintiff who places a particular assertion before the Court cannot ordinarily claim immunity from legitimate questions directed towards testing that assertion. At the same time, the Judgment does not confer an unrestricted licence upon Defendants to introduce a new defence through cross-examination. The relevance of the question must still arise from the case and material before the Court.
Ultimately, the decision underscores a simple but important principle of adjudication: a fair opportunity to defend includes a fair opportunity to question the evidence on which the opposing party’s case rests. By restoring the Defendant’s opportunity to ask the disputed question, the Supreme Court reaffirmed the importance of meaningful cross-examination in the pursuit of a fair trial.
SARTHAK KALRA
Senior Legal Associate
The Indian Lawyer & Allied Services
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