COMMENT: In this case Hon’ble High Court of Gujarat at Ahmedabad has
returned the following findings.
THIS CASE DEALS WITH THE ISSUE OF AMENDMENT OF
PLAINT WHICH IS NECESSITATED BECAUSE OF EVENTS, WHICH OCCURRED DURING PENDENCY
OF THE SUIT PROCEEDING.
1. The amendment prayed for is in continuation
of the pleadings in the pleadings and the facts have a linkage. In other words,
amendment prayed for is merely an addition of pleadings of facts which are
subsequent happening. It could not be said that amendment prayed for introduces
facts which are totally foreign to the controversy. They are in the nature of
supplementary facts relating to subsequent developments. Amendment does not
change the nature of suit at all. The amendment is necessary for wholesome
adjudication of the controversy between the parties
COMPLETE TEXT OF JUDGEMENT:
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (OJ) NO. 342 of 2012
In CIVIL SUITS NO. 2 of 2012
=======================================================
ATLAS PLASTIC....Applicant(s)
Versus
C G ENTERPRISE....Respondent(s)
=======================================================
Appearance:
MR HARSHIL SHAH, ADVOCATE for the Applicant(s)
No. 1
MR MITUL K SHELAT WITH MR KALPESH C PATEL,
ADVOCATE for the======================================================
CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 27/02/2015
CAV ORDER Learned advocate Mr.R.R. Shah appears
for the applicant. Learned advocate Mr.Mitul Shelat for learned advocate
Mr.Kalpesh Patel appeared and made submissions on behalf of the respondent. The
present Application was considered and heard along with another Civil
Application (OJ) No.589 of 2014 which was also for amendment. Both these
Applications are interconnected arising from the same Suit proceedings and were
heard together.
2. The present Application by the applicant-
original plaintiff is filed under Order VI Rule 17 of the Code of Civil
Procedure, 1908 praying for O/OJCA/342/2012 CAV ORDER amendment in the
plaint.
3. The applicant-plaintiff instituted Civil Suit
No.04 of 2011 for declaration, permanent injunction restraining infringement of
design, rendition of accounts and delivery up of offending material under the
Designs Act, 2000. The Suit was originally instituted before the District
Court, Ahmedabad (Rural) at Mirzapur. The same came to be transferred to this
Court by order below Exhibit 29 dated 08th February, 2012 in view of provisions
of Section 22(4) and Section 90 of the Designs Act, 2000. The Suit came to be
re-numbered as Civil Suit No.02 of 2012 as registered before this Court.
3.1 In the Suit, it is the case of the plaintiff
stated in nutshell is that it is a sole proprietary concern and has created
various designs having novel shapes and configuration of the various types of
plastic seals for use in electric meters, gas meters, taxi meters, pay phones,
petrol tankers, calibrations, valves, cash box, drums, transformers, etc., and
that the plaintiff is the first original creator. It is the case that the
defendant is engaged in the business of manufacturing and marketing of locking
for closing device and that it is a subsequent registered proprietor of the
impugned design No.218986 dated 06th October, 2008 in Class 08-07. The
plaintiff has filed cancellation application dated 30th May, 2011 before the
Controller of Designs, Kolkatta which is pending. In the Suit, the plaintiff
has complained against the sets of passing of design committed by the defendant O/OJCA/342/2012
CAV ORDER by adopting and using the design of the plaintiff and the Suit is
also for infringement of plaintiff's registered design No.205868. According to
the plaintiff, it commenced the manufacturing of plastic seals in June 1999,
prior thereto he was doing job work of various plastic works since 1989. It is
the case of the Controller of Designs, Kolkatta has issued statutory protection
to said unique design of plastics seal being registered No.205868. It was
registered on 01st September, 2006 under the Designs Act.
3.2 The plaintiff has given details of the
registrations obtained by it in respect of different types of plastic seals
with different designs, shapes and configurations as per the list reproduced
hereinbelow.
Sr. Design Design Class Date of
No. Regd.
No. Registration
1. Plastic Seal
179570 03 27.05.1999
2. Plastic Seal
182371 03 17.05.2000
3. Plastic Seal
182372 03 17.05.2000
4. Plastic Seal
193033 03 28.08.2003
5. Plastic Seal
205868 08-07 01.09.2006
6. Plastic Seal
205869 08-07 01.09.2006
7. Plastic Seal
205870 08-07 01.09.2006
8.
Plastic Seal 205871 08-07 01.09.2006
3.3
It may be stated that in this Application it is further averred by
the applicant that
due to inadvertence, a bona fide
mistake has crept in not mentioning the registered design No.205871 along with
registered design No.205868 in paragraphs 3,5,11,12,13,15,17 and 27(b) of the
plaint and paragraphs 3,5,11,12,13,15,17 and 29(a) of the injunction application
and accordingly the application for amendment of plaint and injunction
application has O/OJCA/342/2012 CAV ORDER been filed on 02nd January, 2012
before the District Court of Ahmedabad (Rural) at Ahmedabad in Civil Suit No.04
of 2011, which has been transferred to this Court and re-numbered as Civil Suit
No.02 of 2012. It is stated that the said amendment application is pending for
hearing before this Court. It may be noted that the said Civil Application
No.589 of 2014 was also kept for orders and the order therein is pronounced
today.
3.4 As far as the present Application is
concerned, applicant has prayed to incorporate the following averments by
inserting paragraph 23.1 after paragraph 23 in the plaint.
"23.1 The said cancellation application of the plaintiff
pending before the Hon'ble Controller of Designs, Kolkata and the final hearing
of the said cancellation petition was held on 27.01.2012. It is further
submitted that the plaintiff herein has received the order dated 27.09.2012
allowing the cancellation petition filed by the plaintiff in respect of
Registered Design No.218986 of the defendant along with forwarding letter
No.218986- D/Cancel dated 27.09.2012 from the Assistant controller of Patents
& Designs, Kolkata. Copy of the said order dated 27.09.2012 with its
forwarding letter are annexed hereto with the list."
3.5 Respondent has contested the prayer for
amendment by filing its reply and it is objected. Affidavit-in-rejoinder is
also filed.
4. Heard learned advocate Mr.R.R. Shah for the applicant
and learned advocate Mr.Mitul Shelat with learned advocate Mr.Kalpesh Patel for
the respondent.
5. From the contents of the aforesaid amendment
prayed for, it could be seen that the averments are O/OJCA/342/2012 CAV
ORDER sought to be added in the pleadings which are in the nature of subsequent
developments. Paragraph 23 existing in the plaint whereafter aforesaid new
paragraph is sought to be added reads as under.
"23. The cause of action has arisen when the plaintiff came
to know for the first time in the last week of May, 2011 about the registration
of the impugned design under No.218986 in class 08-07 by the defendant and
immediately thereafter, the plaintiff has filed cancellation petiton thereof
before the Controller of Designs, Kolkata. Further the cause of action in the
present suit has arisen recently when the plaintiff came across the defendant's
suit product under the same design being sold in the market of Ahmedabad and
elsewhere in the month of November, 2011. The plaintiff has got knowledge that
the defendant is manufacturing and marketing Plastic Seal/Locking For Closing
Device under the impugned suit design in a clandestine and surreptitious manner
and as such the cause of action is continuous and subsisting against the
defendants from day to day till the defendant is restrained from using the said
design and selling the said Plastic Seal/Locking for Closing Device in the open
market. Moreover, the defendant has also infringed plaintiff's Regd. design by
using the same or deceptively similar design and are also guilty of passing off
by their design as and for the plaintiff's suit product and thus the defendant
is guilty of infringement of plaintiff's Regd. Design under the provisions of
Designs Act, 2000 and under section 20 of the Code of Civil Procedure, 1908.
the cause of action is continuous and recurring day to day."
6. Therefore the amendment prayed for is in
continuation of the pleadings in paragraph 23 and the facts have a linkage. In
other words, amendment prayed for is merely an addition of pleadings of facts
which are subsequent happening. It could not be said that amendment prayed for
introduces facts which are totally foreign to the controversy. They are in the
nature of supplementary facts relating to subsequent developments. Amendment
does not change the nature of suit at all. The amendment is necessary for
wholesome adjudication of the controversy between the parties.
O/OJCA/342/2012 CAV ORDER Therefore, the same
could be granted.
7. Accordingly the amendment is granted by allowing
the present Application in terms of paragraph 5(A).
(N.V.ANJARIA, J.) Anup
