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DELHI HIGH COURT
R.K. Gauba, J.
Khushi Ram Behari Lal —Appellant
versus
Whitefields International
Pvt. Ltd. and Anr. —Respondents
Civil Miscellaneous (M) No.283 of 2016
Decided on 11.4.2018
S K Bansal, Advocate, Vinay Kumar Shukla, Advocate, Ajay Amitabh Saran, Advocate, Akhil Sibal, Advocate, Akhil Schar, Advocate, Nikhil Chawla, Advocate, Gayatri Nandwani, Advocates
IMPORTANT POINT
Amendment in plaint—Amendments are necessary for effectual and complete determination of controversy raised by suit must be allowed.
Headnote:Civil Procedure Code, 1908—Order VI Rule 17—Amendment in plaint—Suit for permanent injunction—It is not that petitioner is withdrawing existing pleadings—Existing pleadings are being retained and alongside the same, facts of earlier period, as brought to notice of trial court by defendants, are being brought on record—Application for amendment does not make out a new case not the least to bring a new cause of action—Amendments would not alter nature of suit—Apprehension of respondents that petitioner, after this amendment, would be in a position to reclaim ad interim injunction by creating an impression that there has been no suppression of facts is wholly misplaced—Previous proceedings would always be there for defendants to show to trial court chronology of events in proper light—Amendments are necessary for effectual and complete determination of controversy raised by suit— impugned order is set aside. The permission to amend the plaint is granted. (Paras 8 to 12)
Result: Petition allowed.
R.K. Gauba, J.—The petitioner is the plaintiff of the civil suit (TM 07/2013) which was filed sometime in 2013 initially against the first respondent for reliefs in the nature of permanent injunction for restraint order against passing off or infringement of the trademark and the copyright of the plaintiff besides other reliefs in the nature of delivery up, rendition of accounts etc., the cause of action claimed being with regard to the use of trademark/label “Taj Mahal” with device of Taj Mahal of copyright whereof the plaintiff claims to be the owner. As per the pleadings set out in the plaint, the plaintiff had come across trading by the respondent in the impugned goods under the trademark/ device of Taj Mahal sometime in the week of April, 2013, its inquiries having revealed the respondent having started the impugned activity “recently”, such use being clandestine, surreptitious, sporadic restricted and minimal.
2. The petition at hand has been filed against the order dated 20.10.2015 whereby the application of the plaintiff seeking permission to amend the plaint invoking the provision contained in Order VI Rule 17 of the Code of Civil Procedure, 1908, was dismissed.
3. Some background facts need to be noted briefly at this stage. On 14.09.2006, the first respondent had filed a trademark application bearing application no. 1487304 for registration of the trademark “India Crown” (label). The said application was advertised in the trademark journal no. 1402 on 16.10.2008. The petitioner submitted an opposition to the said application for registration of trademark on 29.01.2009. On 06.07.2010, the petitioner had issued and served on the first respondent notice to “cease and desist” against use of the impugned device Taj Mahal.
4. In the suit from which the present proceedings arise, instituted on 26.05.2013, the petitioner had prayed for ad interim injunction. The trial court by its orders dated 27.05.2013 and 03.07.2013, had granted such ad interim injunction. Meanwhile, the second respondent had also come to be added as the second defendant in the suit. On an application moved on 03.08.2013 by the second respondent under Order XXXIX Rule 4 CPC, the matter was reconsidered and by order dated 10.09.2013 the ad interim injunction was vacated. Pertinent to note, the second defendant had pointed out to the trial Court at that stage, the suppression of certain facts by the petitioner/plaintiff of the suit, the same concerning the opposition to the application of the first respondent for registration of trademark, as submitted on 29.01.2009, and the notice to cease and desist issued and served on 06.07.2010.
5. It is immediately after the vacation of the stay by the aforementioned order that the petitioner moved the application for amendment under Order VI Rule 17 CPC. The application proposed certain additions to existing paras 34 and 35 of the plaint. Though the application would state that the petitioner wanted the existing paras to be “substituted”, it has been confirmed at the hearing that the existing pleadings in the corresponding paras are intended to be retained, facts concerning the trademark application of the first respondent and the notice of opposition filed by the petitioner are proposed to be added to para 34 and similarly retaining the existing pleadings in para 35, the petitioners seek to bring on record the service of cease and desist notice dated 06.07.2010 explaining background facts concerning therewith.
6. The trial Judge has rejected the prayer for amendment on the ground it would introduce “new facts” which are not “subsequent events”, the absence of such pleadings at the inception creating doubts about the intent of the plaintiff. In the view of the trial Court, the permission to amend would add a “new cause of action”, the effort to fill in lacunae after “substantial decision by the court” being impermissible.
7. The learned senior counsel for the respondents has placed reliance on judgments titled as
