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IN THE
HIGH COURT OF DELHI AT NEW DELHI
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Reserved on: 21st September, 2017
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Pronounced on: 25th September, 2017
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CS(COMM) 1418/2016
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MOHD
ANESUR RAHAMAN
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..... Plaintiff
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Through : Mr.Ajay |
Amitabh
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Suman,
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Mr.Pankaj
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Kumar,
Mr.Kapil Giri
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and
Mr.Vijay Shukla, Advocates.
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versus
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MOSARRAF
HOSSAIN AND ORS
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..... Defendants
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Through :
Mr.Devesh Kr Malan and Ms.Usha
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Mahant,
Advocates.
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CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
IA No.843/2017
1.
This application under Order 6
Rule 17 CPC is moved for amendment in the plaint. The learned counsel for
plaintiff/ applicant alleges when the suit was filed, the plaintiff had applied
for the registration of the trademark / label ANDAZ BIRI NO.205 LABEL/ ANDAZ BIRI
in relation to adverting, distribution, marketing, wholesale and retail
services relating to Bidi falling in class No.35 of the IVth Schedule attached
to the Trademarks Act, 1999.
2.
However during the pendency of
this suit, the ANDAZ BIRI NO.205 LABEL has been registered by the Trade Mark
Registry on
IA No.843/2017 in CS (COMM) No.1418/2016 Page 1 of
3
04.07.2016 and the copy of the registration
certificate is annexed. Since, now the registration has been effected the
plaintiff intends to pursue against the defendant for infringement of the
plaintiff’s registered trademark/ ANDAZ BIRI NO.205 LABEL in relation to the
alleged impugned activity of the defendant already pleaded in the plaint.
Hence, the plaintiff intends to add para No.5A in the plaint just after para
No.5 and also intends to incorporate sub para (iv) to para No.28A qua the
relief of infringement of the registered trademark ANDAZ BIRI NO.205 LABEL
No.2144329 in class No.35.
3.
Further, he intends to add sub
para (c) to para No.22 in the heading of infringement of copyright to be
amended as infringement of trademark and copyright and sub para (c) in para
No.22 to be read as “Infringement
of Plaintiff’s trademark ANDAZ
BIRI NO.205 LABEL registered under No.2144329 in class 35.”
4.
The learned counsel for the
defendants, though has filed reply, but did not seriously challenge the
amendment. Even otherwise, the facts necessitated amendment are effectuated by
the subsequent events and hence there is no impediment as to why it should not
be allowed since is necessary to resolve the controversy involved.
5.
This Court in Usha International & Another vs. Usha
Television Limited 2002 (25) PTC
184 (Del) (DB) has held as under:-
“15. The rule of amendment of
pleadings has to be governed on the basic rule of justice, equity and goods
conscience. When this principle is applied, the amendment as prayed has to be
allowed. We are satisfied that the alternative plea that is sought to be raised
by the appellant in the amendment
IA No.843/2017 in CS (COMM) No.1418/2016 Page 2 of
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application is only by way of
expatiating his rights which he has secured by a statute. Apart from this, the
main consideration for allowing the application is to avoid multiplicity of
proceedings which means saving of precious judicial time and saving of
avoidable expenses for the litigants.”
6.
In view of above, the application
of plaintiff is allowed. The amended plaint is taken on the record. No order as
to cost.
CS(COMM) 1418/2016
7.
Let defendants file the written
statements to the amended plaint, if any, within four weeks from today with an
advance copy thereof to the learned counsel for the plaintiff. Replication
thereto, if any, be also filed within two weeks thereafter.
8.
List for completion of the
pleadings, admission/denial of the documents before the Joint Registrar on
14.02.2018.
9.
Only upon completion of pleadings matter be listed
in Court.
YOGESH KHANNA, J
SEPTEMBER 25, 2017
M
IA No.843/2017 in CS (COMM) No.1418/2016 Page 3 of
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