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2005 Supreme(Bom) 119
IN THE HIGH COURT OF BOMBAY
RASIKLAL MANIKCHAND DHARIWAL
Versus
KISHORE WASHWANI
Decided on : FEBRUARY 2, 2005
Headnote:Trade Marks Act, 1999 - Section 34 - Civil Procedure Code, Order VI, Rule 17 - Admission of plaintiff in plaint that he was user of trade mark "Manikchand" in respect of tobacco product only from 1961 - Proposed defendant No. 2 claimed user of trade mark "Manikchand" since 1959 - Plaintiff by proposed amendment sought to alter case of user of trade mark "Manikchand" from 1961 to 1958 - Amendment seeks to defeat vested right of defendant No. 2 - Amendment of plaint to that extent rejected. - The plaintiffs have by making averments in the plaint as made in paragraphs 5, 6 and 22 of the plaint has admitted that the user of the trade mark "Manikchand" in respect of the tobacco product was only from 1961. Once the said averment is made, it is not open for the plaintiff to go back on the said averment and thereafter now contend that it is not from 1961 but much prior thereto. This is significant because the proposed defendant No. 2 in a suit filed in District Court, Mandaleshwar, in State of Madhya Pradesh has specifically made a plea that the user by them is from 1959 i.e. prior in point of time than the user by the plaintiff herein. In light of the averments made by the proposed defendant No. 2, the plaintiffs are sought to amend the suit by going further back in time to 1958. The statement made in the plaint on oath is the statement on solemn affirmation and it is treated as a statement of fact which is an admission of the particular set of facts the plaintiff in the plaint and it is this case which is required to be proved by the plaintiff at the trial of the suit and the defendants are required to meet. Once substitution of the paragraph which contains admission that the user of the mark was from 1961 then obviously the plaintiff will be entitled to go back to 1958 and defeat the right which is created in favour of the proposed defendant No. 2 to contend that they are prior user of the mark in point of time. The plaintiff cannot be permitted to amend the chamber summons as set out in the schedule thereto insofar as paragraphs 5 and 6 thereof are concerned.
S. U. KAMDAR, J.
( 1 ) THE present chamber summons has been taken out by the plaintiff under Order 6, Rule 17 of the Civil Procedure Code for carrying out amendment to the plaint.
( 2 ) SOME of the material facts in the present case briefly stated are as under:
( 3 ) ORIGINALLY a suit was filed by the plaintiff against Mr. Kishore washwani in his capacity as the proprietor of a business known as Messrs M. S. S. Food Products. The said suit was filed for the purpose of perpetual order and injunction restraining the defendant from passing off or selling or attempting to sell or offering for sale or from distributing or attempting to distribute or dealing in or attempiing to deal in Supari Mix or goods of similar description bearing mark "malikchand" or any mark or label identical with and/or deceptively similar to the plaintiffs Trade Mark "manikchand". Further reliefs are sought of accounts and/or other consequential and incidental reliefs. The said suit came to be filed on 3-2-2004 and an ex-parte application was moved for interim orders being Notice of Motion No. 606 of 2004. However, during the pendency of the suit, the plaintiffs were informed that the trade mark "malikchand" has been assigned by the defendant in favour of his nephew Mr. Nitesh Ashok Wadhwani of Messrs M. S. S. Food Products. The plaintiffs thereafter withdrew the said notice of motion with liberty to take out fresh proceedings.
( 4 ) IN or about March, 2004, the said Nitesh Wadhwani, the proposed defendant No. 2 filed a suit being Civil Suit No. 8a of 2004 before the District judge, Mandaleshwar in the State of Madhya Pradesh. The said suit is filed by the proposed Defendant No. 2 against the plaintiff herein inter alia claiming that the plaintiff are passing off the goods by using the trade mark "manickchand" which is deceptively similar trade mark to that of the proposed defendant No. 2 i. e. Malikchand. In the said suit it has been claimed that the proposed defendant No. 2 has prior user of their mark "malikchand" in relation to their goods which are tobacco products and by virtue of such prior user they are entitled to various reliefs in the suit. An ad-interim application was moved on 16-3-2004 ex-parte in the said Mandaleshwar Court and the said Court granted an ad-interim order against the plaintiff herein. Against the said order on 22-3-2004, the plaintiff filed an appeal before the High Court of Madhya pradesh, Indore Bench which was disposed of by directing the trial Court to hear the interim injunction application expeditiously. On 31-3-2004, the district ludge of Mandaleshwar confirmed the interim injunction against the plaintiff herein and an appeal preferred therefrom by the plaintiff in the High court of Madhya Pradesh was dismissed on 11-5-2004. I am informed that against the said order of the Indore Bench of Madhya Pradesh High Court, a special Leave Petition has been filed in the Apex Court being Special Leave to appeal (Civil) No. 14862 of 2004. The said SLP has been heard finally and orders thereon are awaited.
( 5 ) IN the meantime the plaintiffs have sought to move the present application for amendment of the plaint under Order 6, Rule 17 of the Civil procedure Code inter alia seeking to add the respondent being proposed defendant No. 2 as party defendant No. 2 to the suit and also sought various other amendments inter alia seeking to amend substantial part of the plaint. One of the amendment which is sought to be inserted and covered by paragraphs 5 and 6 of the plaint in which the plaintiffs are seeking to put forward a case that they have conceived and adopted the trade mark in relation to tobacco products consisting of bidi and commenced using the same on a commercial scale in or about 1958 and it is their case that the plaint erroneously indicates that the mark was conceived and adopted ir, 1961.
( 6 ) THE other amendments which are sought to be added in the suit pertaining to the addition of the defendant No. 2 and consequ
