The court should be liberal in allowing amendments to pleadings when it is necessary for the purpose of determining the real questions in controversy in the suit.

Lokeshwar Prasad, J.

( 1 ) THIS Order will dispose of plaintiff s application filed under Order VI Rule 17, Order XXII Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC ). The facts relevant for the disposal of the above mentioned application briefly stated are that the plaintiff as the sole proprietress of the trade mark minda , registered under Trade Mark No. 241844 in Class 9 and 357811 in Class 12 and also as proprietress of the artistic work entitled- minda , alleged to have been duly registered at No. A-47612/85 under the Indian Copyright Act, 1957, filed a suit under Sections 105 and 106 of the Trade and Merchandise Marks Act, 1958 as well as under Section 55 of the Indian Copyright Act,1957 for the relief of permanent injunction and rendition of accounts etc. against the defendant named above. The defendant resisted the claim of the plaintiff and filed a written statement inter-alia contending that the plaintiff has no subsisting right to file the present suit and unless the deed of assignment is executed under the relevant statutory provisions, on which reliance is being placed by the plaintiff, no cause of action can be said to have arisen in favour of the plaintiff. On merits it is contended that the alleged assignment deed dated the 10th May, 1993 is yet to receive legal validity and as such the plaintiff cannot base her claim on the basis of assignment deed dated the 10th May, 1993. in the written statement the defendant has also denied the other averments of the plaint. The plaintiff filed a replication controverting the contentions raised in the written statement and re-iterating the averments made in the plaint.

( 2 ) ON the pleadings of the parties and the material on record the learned Predecessor of this Court vide order dated 26. 10. 94 framed the following issues :

1. Whether the Deed of Assignment assigning the trade mark in question in favour of plaintiff is legal and valid? OFF 2. Whether Delhi Courts have territorial jurisdiction to try the suit? 3. Whether plaintiff is entitled to relief of rendition of accounts? 4. Whether defendant has infringed the trade mark and copyright of the plaintiff? If so, its effect? 5. Whether defendants have passed off their goods as those of the plaintiff, as alleged? If so, its effect? 6. Whether plaintiff is the owner of trade mark and the copyright, as alleged? 7. Relief.

( 3 ) ON 2. 2. 95 the learned Counsel for both the parties agreed to have the evidence on affidavits and the parties were directed to file the affidavits of their witnesses within four weeks and within two weeks thereafter they were directed to file affidavits by way of evidence in rebuttal. The present application (IA 327/96) with the prayer to allow the suit to be amended and also to allow the suit to be continued by M/s Minda Industries Ltd. having its registered office at 36-A, Rajasthan Udyog Nagar, Delhi has been filed on behalf of the plaintiff-on 9. 1. 96.

( 4 ). In the above said application it has been stated that the plaintiff vide deed of assignment dated the 19th January, 1995 executed between herself and M/s Minda Industries Ltd. , a Company incorporated under the Companies Act, 1956, having its registered office at 36-A, Rajasthan Udyog Nagar, Delhi has assigned the trade marks minda together with the goodwill of the business on the goods for which the said trade marks are being used to said M/s Minda Industries Ltd. It is also averred in the application that the plaintiff also filed a request in Form No. TM 24 dated the 6th June, 1995 before the Registrar of Trade Marks for the purpose of recording the assignment and to bring the subsequent proprietors on record. It is alleged that the Registrar of Trade Marks vide order dated 11. 7. 95 has allowed the said request and has allowed the said registration under Nos. 241844 and 357811 in favour of M/s Minda Industries Ltd. and necessary entries to that effect have been made in the

Click Here to Read the rest of this document