The discretion to allow additional written statements under Order VIII Rule 9 CPC is broad, particularly when trial has not commenced, aimed at advancing justice.

JUDGMENT :

MINI PUSHKARNA, J.

I.A. 10756/2024 (Application seeking leave to file additional written  statement)

1. The instant suit has been filed by the plaintiffs seeking permanent injunction restraining the infringement of plaintiff no.1‟s Indian Patent No. 276026 (IN'026) , rendition of accounts/ damages and delivery up, etc.

2. The present application has been filed under Order VIII Rule 9 of the Code of Civil Procedure, 1908 (“CPC”) , by the defendant seeking leave to file additional written statement. The defendant seeks to bring on record the pleadings and grounds related to the Divisional Application, i.e. IN 5338/DELNP/2014  (IN'5338) filed by the plaintiffs to the Parent Application 3951/DELNP/2009 , which resulted in grant of IN‟ 26. It is the case of the defendant that the plaintiffs have suppressed documents pertaining to the Divisional Application which came to the knowledge of the defendant recently.

3. The present application came to be filed during the pendency ofanother application of the defendant, i.e. I.A. 4636/2023 under Order XXXIX Rule 4 CPC, seeking vacation of the interim injunction allowed in favour of the plaintiffs vide judgment dated 09^th January, 2023. The said application for vacation of stay filed by the defendant, was subsequently dismissed vide judgment dated 09^th April, 2024. Appeals against both the orders dated 09^th January, 2023 and 09^th April, 2024, are currently pending before the Division Bench.

4. Submissions made on behalf of defendant, are as follows:

4.1 The Division Application and its knowledge thereof, is a subsequent event and material to the adjudication of the suit.

4.2 The rules guiding filing of an additional written statement are similar to the rules guiding amendment of pleadings under Order VI Rule 17 CPC. On account of a subsequent development, where trial is yet to commence, the application is bonafide and prima facie of concern to the suit.

4.3 The discretion to allow or disallow the additional written statement, lies with the Court, and such discretion can be invited upon by an application of a party.

4.4 Under Order XI Rule 1 (12) CPC, both parties have a continuing obligation to disclose the facts which are material to the suit. Since the plaintiffs consciously chose to remain silent on the filing of Divisional Application and its outcome, the defendant is constrained to bring it to the Court‟s attention through the proposed additional written statement.

4.5 The plaintiffs are advancing mutually destructive arguments. On the one hand, plaintiffs are stating that additional written statement can only be filed within the period of One Hundred and Twenty (120) days, as stipulated under Order VIII Rule 1 CPC. On the other hand, it is the stand of the plaintiffs that additional written statement can only be filed in response to new facts/ pleadings in replication.

4.6 The judgments dated 09^th January, 2023 and 09^th April, 2024 are not conclusive in nature. Therefore, the same have not finally decided the issues sought to be raised in the additional written statement.

4.7 Rule pertaining to filing of written statement within One Hundred and Twenty (120) days, does not extend to provisions of Order VIII Rule 9 CPC.

4.8 Claims in the Divisional Application are identical to the Parent Application. Further, prior art was cited by the Controller of Patents and the Divisional Application of the plaintiffs was rejected by the Controller of Patents on 16^th December, 2022. Therefore, by way of the additional written statement, the defendant seeks to bring on record the conduct of the plaintiffs.

4.9 Defendant wishes to place on record the fact of rejection of Divisional Application. The defendant will not travel beyond the submissions that have been made by the defendant in the application under Order XXXIX Rule 4 CPC.

4.10 Framing of issues are yet to take place. Issues pertaining to the Division Application can be framed only if it is so pleaded in the written statement. Therefore, there