Principles governing amendment of plaint.

The petitioner before me is the plaintiff in the lower Court. The plaintiff instituted a suit on the ground that the defendant is passing off his trade mark and in particular asked for a permanent injunction restraining the defendant from manufacturing or marketing the goods under a mark which is deceptively similar to the plaintiff’s mark. The suit was instituted on 24th September, 1962 Two days after the institution of the suit, the plaintiff secured registration of his trade mark under the Trade Marks Act, and after obtaining such rights and before the case was taken up for trial, he filed I.A. No. 62 of 1965 in O.S. No. 3 of 1962 on. the file of the District Judge of North Arcot for amending the plaint incorporating therein two paragraphs which are extracted in the petition. One of those paragraphs really sets out the fact that the petitioner has secured registration of the trade mark under consideration under the Trade and Merchandise Marks Act of 1958, and the other paragraph relates to the prayer portion and in effect is an enlargement of the prayer already on record by asking for a permanent injunction restraining the defendant from manufacturing, using, passing off and marketing the beedies with the wrappers design, marked as 1, 2 and 3 in the plaint schedule as being an infringement of the plaintiff’s registered trade marks. On the above facts, the learned District Judge was of the view that the plaintiff is attempting to claim an independent relief which is inconsistent with the one already claimed by him. He was also of the opinion that the original cause of action, as disclosed in the pleadings, is different from the cause of action sought to be introduced by this amendment. In his judgment if the amendment is allowed, the plaintiff should be deemed to have been permitted to change his front and it would put the defendant to such prejudice that even compensation by terms could not set right events. I do not agree with this view.

The suit was originally laid as if it was a passing off action. An amendment is sought after the plaintiff secured registration of his trade mark under the Trade and Merchandise Marks Act of 1958. This later right secured by him is a statutory right which he can avail himself of, as against a person who, according to the plaintiff, is marketing beedies with a mark which is deceptively similar to that of his. Whether it is deceptively similar or not is a matter to be decided on trial. But the plaintiff is anxious to introduce into the original pleadings an additional paragraph setting forth the statutory right secured by him under the Trade and Merchandise Marks Act, 1958. As far as I am aware, the statute law relating to infrigement of trade marks is based on the same fundamental idea as the law relating to passing off. There are certain procedural differences between the two But in substance and in effect, an action for passing off can easily be telescoped into an action for infringement and vice versa. In fact, Rajagopala Ayyangar, J., in C.S.No. 385 of 1954 (Original Side High Court Madras) held that the law relating to infringement and passing off are fundamentally similar in its scope and application.

Another contention raised before me by the learned Counsel for the respondent and which was accepted by the learned District Judge was that the amendment would change the cause of action, and as the amendment is based on supervening facts, such an amendment ought not to be allowed unless the circumstances so require. In Subramaniam v. Sundaram1, a Full Bench of our High Court had to consider the propriety of a Court taking note of subsequent events. It is no doubt true that a suit has to be decided on the facts and circumstances existing on the date of its institution, but circumstances do warrant a Court taking into consideration super-vening events as well provided the justice of the case requires. In the above decision, the Full Bench observed:

“The discretion of the Court, under