2009(110)DRJ401,
2009(40)PTC267(Del)
IN THE HIGH COURT OF DELHI
Decided On: 22.04.2009
Appellants: Arihant
Tea Company
Vs.
Respondent: Jayshree Tea and Industries Ltd.
Judges/Coram:
Counsels:
For Appellant/Petitioner/plaintiff: Ajay Amitabh Suman, Adv
For Respondents/Defendant: Nitin
Gupta, Adv.
JUDGMENT
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. 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.
4. 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'.
5. 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.
6. 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.
7. 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.
