Amendments to a plaint are permissible to correct factual inaccuracies without changing the nature of the case, ensuring proper adjudication without causing undue prejudice to the opposing party.

JUDGMENT

Jayant Nath, J. (Oral)

IA No. 543/2021

This is an application filed by the defendants seeking condonation of delay of 89 days in filing the written statement and affidavit of admission/denial of documents on behalf of the defendants.

This application is strongly opposed by the learned counsel for the plaintiff.

Keeping in view the judgment of the judgment of the Supreme Court in the case of Suo Moto Writ (Civil) 3/2020, dated 06.05.2020, the present application is allowed.

Written statement is taken on record.

IA No. 6945/2020

1. This application is filed under Order 6 Rule 17 CPC seeking amendment of the plaint.

2. The plaintiff has filed the accompanying suit for permanent injunction restraining infringement of the trade mark, passing off, delivery up, rendition of accounts and damages. It is stated that the suit was listed on 05.08.2020 on which date an interim injunction was granted in favour of the plaintiff. It is stated that during the above-mentioned hearing, the plaintiff became aware about an inadvertent error in the paint regarding the status of the plaintiff's trade mark applications bearing Nos. 1200579 and 1200578. The plaintiff had inadvertently pleaded in the plaint that the said marks are registered whereas the applications for registration were pending. In the light of the same, the plaintiff seeks leave of this court to amend para 19 of the plaint to reflect the factually correct status of the trademarks which are registered and which are pending registration.

3. Learned counsel for the defendants has strongly opposed the present application stating that it changes the nature of the case. It is stated that the plaintiff had wrongly misled the court to pass an interim order mentioning wrong facts in the plaint. He also states that proceedings under Section 340 Cr.P.C. have been initiated being Crl.M.A. No. 12062/2020 in which, notice was issued to the plaintiff.

4. What the plaintiff seeks to do is to correct the factual mistakes in the plaint. I do not see how correction of factual mistakes will in any manner change the nature of the suit. The suit will remain a suit seeking injunction of the trade mark of the plaintiff and passing off. Needless to add, the amendment will not in any manner affect the merits, or otherwise, of Crl.M.A.No. 12062/2020 of which notice was issued by this court on 02.09.2020.

5. Reference may be had to the judgment of the Supreme Court in the case of Rajesh Kumar Aggarwal and Others vs. K.K. Modi and Others, (2006) 4 SCC 385 where the Supreme Court held as follows:

"19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."

6. Reference may also be had to the judgment of the Supreme Court in the case of Revajeetu Builders and Developers vs. Narayanswamy and Sons and Ors., MANU/SC/1724/2009, where the Supreme Court held as follows:

"67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and

(6) As a general rule, the cou