Defendant Can Cross-Examine Plaintiff on Date of Brand Use Even Without Written Statement on Record: Supreme Court in Shabu KN Achary v. Dharampal Premchand Limited [2026 INSC 819]

In Shabu KN Achary v. Dharampal Premchand Limited (2026 INSC 819), the Supreme Court held that when the plaintiff affirms trademark infringement, the defendant is entitled to put a question asking the plaintiff for documents to show from when the brand name was used, even though the defendant's written statement is not on record (para 8). A Bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran reversed the High Court's order expunging the question, and directed that the trial proceed after recalling the plaintiff and recording his answer (paras 3, 9).

Status: High Court's order expunging the cross-examination question reversed; plaintiff to be recalled and his answer recorded; appeal allowed (paras 3, 9, 11).

Headnote: Cross-Examination in Trademark Suit Without Written Statement

Trade Marks Act, 1999 – Section 2(1)(zg) read with Section 11(6) – Suit for injunction against infringement of trade-dress and trademarks, declaration and damages – Cross-examination of plaintiff by defendant – Defendant's written statement not taken on record – Question on documents showing since when the brand name was used – Question expunged by High Court as beyond permissible cross-examination – Order reversed – Plaintiff to be recalled.

Held: (i) The short question was whether the defendant could put a question on the brand name asserted by the plaintiff, whose infringement was the foundation of the claim for damages (para 2).

(ii) The plaintiff's contention that the defendant could not put the question because his written statement was not on record was rejected (para 6).

(iii) The plaintiff's own affidavit with the injunction prayer alleged use of its brand name with similar packaging and trade-dress and infringement of its registered copyright and trademark (para 7).

(iv) When the plaintiff affirms trademark infringement, the defendant is entitled, even without a written statement on record, to ask the plaintiff for documents to substantiate the time from which the brand name was used (para 8).

(v) The High Court's order was reversed and the trial directed to proceed after recalling the plaintiff and recording his answer (para 9).

(vi) No observation was made on the merits, and the parties may raise all contentions at trial (para 10).

(paras 2–10)

Case Details: Shabu KN Achary v. Dharampal Premchand Limited (2026 INSC 819)

Final Outcome: Appeal allowed; High Court's order reversed; trial to proceed after recalling the plaintiff and recording his answer to the disputed question.

Case: Shabu KN Achary v. Dharampal Premchand Limited

Neutral Citation: 2026 INSC 819

Case No.: Civil Appeal No. 10260 of 2026 (arising out of SLP (C) No. 26887 of 2026)

Court: Supreme Court of India (Civil Appellate Jurisdiction) – Non-Reportable

Date of Decision: 7 August 2026

Bench: Justice J.B. Pardiwala and Justice K. Vinod Chandran (order; no named author)

Relevant Acts & Sections: Trade Marks Act, 1999 – Section 2(1)(zg) read with Section 11(6)

Impugned Order(s): Order of the High Court expunging the defendant's cross-examination question as a purely factual question beyond permissible cross-examination, since the written statement was not on record; the order does not name the High Court or give the date (para 3)

Counsel: Sri Ankur Chhibber, Senior Counsel, for the appellant; Sri Gagan Gupta, Senior Counsel, for the respondent (para 4)

Source: Supreme Court of India (official website)

Key Holdings of the Supreme Court

• A defendant whose written statement is not on record is not barred from cross-examining the plaintiff on the brand name whose infringement is alleged (paras 6, 8).
• The plaintiff's own pleadings and affidavit, alleging infringement of its trade-dress, copyright and trademark, made the question relevant (para 7).
• A question asking the plaintiff for documents showing since when the mark was used is a permissible question (paras 6, 8).
• The High Court erred in expunging the question; the plaintiff must be recalled and his answer recorded (paras 3, 9).
• The order does not decide the merits of the suit (para 10).

Brief Facts of the Case

The respondent, Dharampal Premchand Limited, was the plaintiff and the appellant was the defendant in a suit founded on infringement of a brand name, in which damages were claimed (para 2).

The prayers in the suit were multifarious. Among them, the plaintiff sought a permanent injunction restraining the defendant from infringing the trade-dress used for its product, a declaration that the two trademarks are its exclusive marks within the meaning of Section 2(1)(zg) read with Section 11(6) of the Trade Marks Act, 1999, and damages (para 5).

During cross-examination, the defendant asked the plaintiff: "Is it correct that you have no document to show that since when mark BABA is being used?" (para 6).

The High Court found this to be a purely factual question beyond permissible cross-examination and, since the defendant's written statement was not taken on record, expunged it from the record (para 3).

Issues Before the Supreme Court

1. Whether the defendant, whose written statement was not on record, was entitled to put a question on the brand name asserted by the plaintiff, whose infringement was the foundation of the claim for damages (paras 2, 6).

Court's Findings and Reasoning

Plaintiff's objection (para 6): The specific contention was that, the defendant's written statement not being on record, he was not entitled to put the question. The Court was unable to agree.

Plaintiff's own case (para 7): The plaintiff's affidavit accompanying the prayer for injunction specifically spoke of the defendant using the plaintiff's brand name with similar packaging and trade-dress, identical to the plaintiff's unique trade dress and packaging. The averments also concerned infringement of the plaintiff's registered copyright and trademark.

Question permissible (para 8): When the plaintiff affirms trademark infringement, the defendant is entitled, even without a written statement on record, to ask the plaintiff about documents substantiating the time from which the brand name was used.

Relief (paras 9–10): The Court reversed the High Court's order and directed the trial to proceed after recalling the plaintiff and recording his answer, while making clear that it expressed no view on the merits.

Final Outcome and Directions

• The impugned order of the High Court is reversed (para 9).
• The trial shall proceed after recalling the plaintiff and recording his answer to the question (para 9).
• No observations on the merits; the parties may agitate their contentions at trial (para 10).
• Appeal allowed; pending applications disposed of (paras 11–12).

Legal Principle Laid Down

In a suit for trademark infringement, the plaintiff's assertion of the brand name and its use is part of the plaintiff's own case. A defendant may therefore cross-examine the plaintiff on documents showing since when the brand name has been used, even if the defendant's written statement is not on record. Such a question cannot be expunged as beyond permissible cross-examination.

Precedents Relied Upon

• No precedents were cited in the order; the Court decided the question on the plaintiff's pleadings and affidavit (paras 5–8).

Important Paragraphs of the Judgment

Verbatim extracts from the judgment. For the full text, refer to the judgment PDF below.

Para 2: "The short question arising in the above case is as to whether the defendant, the appellant herein, was entitled to put a question with respect to the brand name asserted by the plaintiff, infringement of which was the foundation of the relief of damages claimed by the plaintiff in the suit."

Para 6: "The specific contention raised was that the defendant’s written statement not being on record, he was not entitled to put that question. We are unable to agree."

Para 8: "When the plaintiff affirms trademark infringement, even if the written statement is not on record, the defendant is entitled to put the question which queries the plaintiff on the document, to substantiate the time from which such brand name was used by the plaintiff."

Para 9: "On the above reasoning, we reverse the impugned order of the High Court and direct the trial to be proceeded with after recalling the plaintiff and recording his answer."

Para 10: "We make it clear that we have not made any observations on the merits of the matter and the parties would be entitled to agitate their respective contentions in the trial."

Practical Impact of the Ruling

• For defendants in IP suits: Even without a written statement on record, a defendant can test the plaintiff's claim of prior use of a mark in cross-examination (para 8).
• For trademark owners: A plaintiff asserting infringement must be ready to show documents on the date from which the mark has been used (paras 7–8).
• For trial courts: Questions arising from the plaintiff's own pleadings and affidavit should not be expunged merely because the defendant has no written statement on record (paras 6–8).
• For litigants: The ruling is confined to the cross-examination question; the merits remain open at trial (para 10).

FAQs on Cross-Examination Without a Written Statement in Trademark Suits

1. What did the Supreme Court hold in Shabu KN Achary v. Dharampal Premchand Limited?

It held that the defendant could ask the plaintiff for documents showing since when the brand name was used, even though the defendant's written statement was not on record (para 8).

2. What was the question that the High Court expunged?

The question was: "Is it correct that you have no document to show that since when mark BABA is being used?" (para 6).

3. Why did the High Court expunge it?

It found the question purely factual and beyond permissible cross-examination, as the defendant's written statement was not on record (para 3).

4. Why did the Supreme Court allow the question?

Because the plaintiff's own affidavit and pleadings asserted infringement of its brand name, trade-dress and registered trademark, so the defendant could query the plaintiff on documents supporting that claim (paras 7–8).

5. What happens next in the suit?

The plaintiff will be recalled, his answer recorded, and the trial will proceed, with all contentions on merits left open (paras 9–10).

Keywords: 2026 INSC 819, Shabu KN Achary v. Dharampal Premchand Limited, trademark infringement suit, cross-examination of plaintiff, written statement not on record, expunging question, Section 2(1)(zg) Trade Marks Act, Section 11(6) Trade Marks Act, trade-dress, brand name use, recall of witness, Justice J.B. Pardiwala, Justice K. Vinod Chandran, Supreme Court non-reportable judgment

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Download Judgment PDF – Shabu KN Achary v. Dharampal Premchand Limited

Judgment PDF: 2026 INSC 819 – Shabu KN Achary v. Dharampal Premchand Limited (SLP (C) No. 26887 of 2026) – Download Judgment PDF

Source: Supreme Court of India (official website).