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
