The court emphasized the need to be liberal in allowing amendments to pleadings, especially in written statements, and ensuring that amendments are necessary for determining the real issues in controversy between the parties.

JUDGMENT :

C. Hari Shankar, J.

This is a petition under Article 227 of the Constitution of India, assailing order dated 20th March 2023, passed by the learned District Judge (Commercial) (“the learned Commercial Court”) in CS (Comm) 498/2020.

2. The issue in controversy is brief and no detailed recital of facts is necessary.

3. The present petitioner is the respondent before the learned Commercial Court. CS (Comm) 498/2020 was instituted by the respondent against the petitioner, alleging infringement, by the petitioner, of the respondent's mark BOOM BOOM in relation to chocolates, Aam Papad, Churan Goli, toffee, fruit balls, candies, puffs, Namkeen, spices and confectionery or other allied cognate goods as well as passing off, by the petitioner, of its products as those of the respondent.

4. Consequence to issuance of summons, the petitioner filed a written statement by way of response to the suit. In the written statement, one of the contentions urged by the petitioner was that the mark BOOM BOOM was being used by the petitioner, through his father Budhsen Gupta, as his predecessor in interest, with effect from 1st January 2001.

5. Replication was filed by the respondent. Trial in the suit is yet to commence.

6. The Petitioner-defendant thereafter moved an application under Order VI Rule 17, [17. Amendment of pleadings. - The Court may at any stage of the proceedings allow either party to alter or amend his pleading 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.] of the CPC, seeking to amend the written statement filed by it. Though amendments were sought in several of the paragraphs of the written statement, the amendments sought may fall into three categories, which were by way of

(i) change of the claim of the user of the impugned BOOM BOOM mark from 2000-2001, as claimed in the written statement, to 1999,

(ii) incorporation, in the written statement, of averments regarding sales figures and advertising and promotional expenses incurred by the defendant and

(iii) introduction, in the written statement, of various legal proceedings in which the defendant's mark is claimed to have been upheld and protected.

7. Para 11 of the application filed by the petitioner under Order VI Rule 17 sets out the amendments that the petitioner desired to incorporate in the written statement. For ease of reference, the entire paragraph may be reproduced thus:

“11. That accordingly on the basis of the documents traced by the defendant related to the trademark ‘BOOM BOOM’ which shows the user of said trademark in the year 1999 and also in order to explain the case of defendant in a better manner and cut short the trail, the defendant seeks to amend the written statement in the following manner:—

(a) The following lines be added at the end of paragraph 6 of the Preliminary Objection/Submission of the written statement;

“Further, the Defendant has also filed opposition to the application numbers 1650685, 3649474 and 3653300 of the Plaintiff for registration of the trademark/label “BOOM BOOM” before the Registrar of Trademarks Delhi-which proceedings are pending adjudication.”

(b) The word “2000-2001” appearing in line 8 of paragraph 8 of Preliminary Objection/Submission of the written statement be read as “1999”.

(c) That the following line be added after 17th line of paragraph 8 of Preliminary Objection/Submission of the written statement “The packaging, representation of trademark/packaging/label of the defendant are placed on record for kind perusal of this Hon'ble Court”.

(d) T