Liberal approach in allowing amendments to pleadings and the necessity of amendments for determining the real questions in controversy.

( 1 ) BY way of this application, the plaintiff seeks to amend the plaint to include paragraphs 20a and 20b as set out in paragraph 5 of the application.

( 2 ) BRIEFLY the facts are that the plaintiff is running a television channel under the trademark HBO/home BOX OFFICE since November, 1972. In March, 1996, plaintiff learnt that defendant No. 2 proposed to launch a cable television programming service under the mark CBO/cable BOX OFFICE. Accordingly, the plaintiff filed the present suit for permanent injunction, passing off, etc. against the defendants.

( 3 ) IT is stated that during the pendency of the suit, the plaintiff launched HBO channel in India in March, 2000. At the time of institution of the suit, the channel of the plaintiff was not available on cable television in India. Therefore, the plaintiff seeks leave to amend its plaint by inserting paragraphs 20a and 20b in the plaint as set out in the application.

( 4 ) THE amendments sought for are opposed by the defendant Nos. 1 and 2. It is stated that the present application has been filed by the plaintiff to delay the disposal of the suit after having obtained an injunction in its favour. The application has been filed after a delay of more than 2 years. The delay is unexplained. An application for amendment of the issues before the date of trial was allowed and issue No. 5 was reframed.

( 5 ) THE present suit has been filed on trans border reputation as it existed on the day of institution of the suit and any subsequent development or enhancement in the reputation of the trade mark in India is of no consequence and therefore is not necessary for determining the real controversy between the parties. The amendments seek to change the nature of the claim which is impermissible. The subsequent launch of the HBO channel in India has nothing to do with trans border reputation or reputation as existed on the date the suit was filed.

( 6 ) IN rejoinder, the plaintiff has stated that trans border reputation is an element of passing off as is the actual use of the trademark in India and therefore, the present amendment does not change the nature of the suit. The actual use of a trademark in India is another element of passing off and by way of the present application, the plaintiff seeks to include the actual use of the plaintiff s mark in india.

( 7 ) HAVE heard learned Counsel for the parties. Rule 17 of Order VI of the Code of Civil Procedure reads as under:

"17. Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. "

( 8 ) AN amendment may be allowed at any stage of the proceedings. An amendment application can be entertained even after the close of the case for judgment and before judgment is pronounced. It is also a settled law that all amendments of the pleadings should be allowed which are necessary for determination of the real questions in controversy between the parties in the suit provided the proposed amendment does not alter or substitute a new cause of action. The proposed amendments should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. Hypertechnical approach should not be adopted and instead a liberal approach should be the general rule. A prayer for amendment can be rejected if the same is not bonafide.

( 9 ) IN view of the settled position of law, to my mind, the amendments are