The court emphasized that additional pleadings must be in line with the original statement and that parties must provide a valid explanation for not raising the contention earlier.

ORDER :

R. Karuppiah, J.

1. Heard the learned counsel for the applicants/defendants and the respondent/plaintiff. The applicants have filed earlier two applications namely A. Nos. 4820 and 4821 of 2012 to permit them to file additional documents and to recall DW1 witness to file additional proof affidavit and additional documents. Later, the same applicants filed A. No. 756 of 2013 to permit them to file the additional written statement in the suit.

2. The suit is filed by the respondent/plaintiff against the applicants/defendants for infringement of trademark and the above said suit is in part heard stage and is posted for further evidence of defendants. In the said circumstances, the applicants/defendants have filed these three applications A. Nos. 4820 & 4821 of 2012 and A. No. 756 of 2013 to receive the additional documents, to recall DW1 witness and to mark the above said documents and also to receive additional written statement. In the said applications, it is stated that earlier the jewellery business was joint family business and they had started their business under the name and style of 'New Jewellery' in the name of defendants' brother one S. Kumar. It is also stated that initially the 2nd applicant/2nd defendant run the business under the name and style as "Vino Jewellery" and he used the name of 'New Jewellery' with the mark of "NEW" as his business symbol. The first applicant/first defendant is running the business under the name of "Sarojini Jewellery" business using "SARO" on the top of the symbol. As the defendants are using their trade mark as stated above, the question of infringement does not arise at all and to prove the same, the applicants seeking permission to file additional written statement, to receive additional documents and to recall DW1 witness to file additional proof affidavit.

3. The respondents have filed common counter in A. Nos. 4820 and 4821 of 2012 and separate counter in A. No. 756 of 2013. In both the counters, the respondent/plaintiff mainly contended that the same applicants/defendants have already filed A. No. 1632 of 2012 seeking permission to file additional documents. In the interest of justice, the respondent/plaintiff did not object the same. Therefore, the said application was ordered on 29.03.2012. Since, the applicants/defendants are well aware that they have no case on merits, they have filed the present applications without assigning any reason as to why these documents were not filed at the earliest point of time, atleast when the earlier application was filed. It is further stated that a perusal of the contention raised in the additional written statement reveals that the applicants have pleaded new facts, which were not pleaded in the original written statement. Therefore, the above said applications to receive additional written statement cannot be allowed. If the additional written statement is not received, no question of receiving additional documents and recall witness will arise and therefore prayed for dismissing of the applications.

4. Heard the learned counsel appearing for both sides.

5. The learned counsel for the respondent/plaintiff contended that originally, the written statement was filed as early as on February 2010 and no explanation was given in the instant application as to why the said allegation sought for herein was not raised in the original written statement itself. It is further contended that if the application for receiving additional written statement is allowed, it is inconsistent with and at variance with the original written statement and completely changing the nature of the suit. The said allegation does not find place even in the proof affidavit of the defendants and in the subsequent oral evidence. The averments made in the additional written statement is an afterthought and concocted to fill up the lacuna in the defendants' case. Therefore, learned counsel for the respondent strongly objected for allowing this applications.

6. It is further