Manmohan Singh, J.

1. By this order 1 shall dispose of the application being IA. No. 4329/08 under Order 6 Rule 17 read with Section 151CPC seeking amendment of the plaint.

2. The plaintiff has filed the instant suit for permanent injunction restraining passing off, damages, rendition of accounts etc against the defendant in the month of May 2002. Issues in the matter have been framed on 8th August 2007. The matter is now ripe for plaintiffs evidence.

3. It is averred in the application that during the pendency of the suit, the trade mark Vatika was registered in favour of Vatika Township Pvt. Ltd on 11th May 2006 bearing No. 1043034 in Class 16 and by virtue of the amendment made in the trade mark when the application was pending the said trade mark was registered in the name of Vatika: Landbase Pvt Ltd and the said name was changed to Vatika Ltd who is the now the registered proprietor of the trademark Vatika. Meanwhile on 20th February, 2008 Vatika Ltd assigned the said trademark to the plaintiff by way of Assignment Deed alongwith goodwill and necessary request on Form TM-23 which has been filed by the plaintiff for assignment of the said trademark. It is further contended that as a result of the said assignment, valuable statutory rights have come to vest in the plaintiff which the plaintiff did not have at the time -of institution of the suit. In view thereof, the plaintiff has made the prayer to amend the plaint as per the details given in Para 9 of the application.

4. The application of the plaintiff has been opposed by the learned counsel for the defendant on various grounds, the details of which are given as under:

(a). That the defendant is the prior user of the trade mark Vatika in relation to Restaurant and Banquet Hall Services and the said name has been used continuously since 1992 and the plaintiff is trying to undermine the proprietory rights of the defendant in relation to the said mark by adopting the back door entry approach on the basis of assignment deed executed in its favour by one of the sister concerns.

(b) That when the issues were framed, the plaintiff was given time to produce the evidence which was not produced by the plaintiff within the time granted by the court and this application has been filed to stall the progress of the suit.

(c) That the registration is granted only in Class 16 and, therefore, the plaintiffs suit is not maintainable for infringement of trade mark as the relevant clause dealing with Hospitality Services is Class 42 and not Class 16. The plaintiff cannot restrain the defendant for infringement of trade mark on the basis of the registration granted in Class 16 as on the date of filing of the suit, the 'new Trade Mark Act, 1999 was not in existence and under the old Act the suit for infringement in relation to different category or goods was not maintainable in view of Section 29 of the Trade and Merchandise Mark Act, 1958.

5. I have heard learned counsel for the parties and have also considered the decisions given by various courts on this aspect of the matter. No doubt the amendment cannot be allowed which would have the effect of substituting one cause of action for another or changing the subject matter of the suit. The amendment sought would also not be allowed which would deprive the other party of a legal right accrued by lapse of time. But it is the duty of the court to allow amendment of the pleadings when it is necessary for the purpose of determining the real question of controversy in the suit. It is the duty which has been cast upon the courts so that substantial justice may be done for which the court exist.

6. In the present case, it is an undisputed fact that the plaintiff has filed the suit for permanent injunction, passing off etc. seeking the injunction from using the mark Vatika against the defendant. The trade mark Vatika on the date of filing of the suit was not registered/assigned in favour of the plaintiff. The said trade mark was registered and assigne