ARIHANT TEA COMPANY VS JAYSHREE TEA

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : CODE OF CIVIL PROCEDURE

Date of Decision: April, 22,2009

CM(M) 903/2008 & CM 10911/2008

ARIHANT TEA COMPANY ..... PetitionerThrough: Mr. Ajay Amitabh Suman, Adv.

versus

JAYSHREE TEA & INDUSTRIES LTD ..... Respondent Through: Mr. Nitin Gupta, Advocate

MANMOHAN, J : (Oral)

1                    Present petition has been filed under Article 227 of the Constitution of India challenging the order dated 4th June, 2008 whereby Additional District Judge dismissed petitioner/plaintiff’s application filed under Order 6 Rule 17 CPC.

2                    Learned counsel for petitioner states that in view of coming into force of new Trade Marks Act, 1999 with effect from 2003, petitioner had applied for registration of its mark under class 35 in the category of services. In July, 2007 petitioner/plaintiff received a new certificate of registration under class 35 and consequently, in November, 2007 it filed an application under Order 6 Rule 17 CPC for adding relief of infringement in an already pending passing off suit. He submitted that by way of the amendment application, petitioner/plaintiff wanted to bring on record the said subsequent event and at this stage, trial court could not have gone into merits or demerits of the proposed amendment – as it did.

                        3. Learned counsel for respondent/defendant, however, submitted that if the amendment were to be allowed, it would amount to introducing a new cause of action. In this context, he relied upon a judgment of Hon’ble Supreme Court in the case of Alka Puri Cooperative Housing Society Ltd. v. Jayantibhai (deceased) Thr.

                        LRs. reported in I (2009) SLT 692. He further stated that though petitioner/plaintiff claims to have filed its application for registration in the year 2004, it did not bring this fact to the knowledge of the trial court till November, 2007. He lastly submitted that as trial had already commenced in the matter, present amendment application should not be allowed.

3                    It is well-settled that Order 6 Rule 17 CPC gives power to the Court to allow such amendments which are necessary for the purpose of determining the real question in controversy between the parties. In the present case, petitioner/plaintiff is claiming protection of its mark and by virtue of the amendment application, petitioner/plaintiff only wants to bring on record subsequent event that its mark has been registered under class 35 of new Trade Marks Act, 1999. In my opinion, the amendment sought for is necessary for adjudication of the matter in controversy between the parties. The proposed amendment would also prevent multiplicity of litigation between the same parties. Moreover, the aforesaid judgment of Hon’ble Supreme Court cited by respondent/defendant is inapplicable as I am of the view that by way of proposed amendment, there will be no change in the fundamental/basic character of the suit which is primarily aimed at protecting petitioner/plaintiff’s mark ‘Birla Tea’.

4                    As far as respondent/defendant’s submission that petitioner should have earlier brought to the notice of trial court that it had applied for registration under class 35, I am of the view that there is a separate statutory procedure provided for registration of a mark. Under the said procedure there is no requirement or obligation on the part of petitioner/plaintiff to bring the fact of it having applied for registration to the notice or knowledge of trial court. In any event, it is pertinent to mention that before a registration certificate is issued, statutory procedure provides for an advertisement in a trade mark journal. Therefore, I am of the view that this objection is meaningless.

5                    Respondent’s other objection that amendment cannot be allowed at this stage as trial has commenced is untenable in law, as I am of the view that after the 2002 amendment of CPC, court has power to allow amendment after trial has commenced if the court comes to the conclusion that in spite of due diligence a party could not have raised the matter before commencement of trial. Since in the present case, petitioner/plaintiff has applied for amendment within four months of it having received a registration certificate, I am of the view that there is no delay in filing amendment application and consequently, this objection of respondent/defendant is misconceived.

6                    Consequently, in view of the aforesaid discussion, present petition is allowed and petitioner/plaintiff is directed to file an amended plaint within a period of four weeks from today. Trial court will permit defendant/respondent herein to file an amended written statement within a further period of six weeks. With the aforesaid observations, present petition and pending application stand disposed of.

Sd/-MANMOHAN,J