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IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided
on:- 11th April,
2018
+
CM (M) 283/2016
M/S KHUSHI RAM BEHARI LAL .....
Petitioner
Through: Mr. S.K. Bansal, Mr. Vinay
Kumar
Shukla & Mr. Ajay
Amitabh
Saran, Advs.
versus
M/S
WHITEFIELDS INTERNATIONAL PVT. LTD.
& ANR. .....
Respondents
Through: Mr. Akhil Sibal, Sr. Adv. with
Mr. Akhil Schar, Mr. Nikhil
Chawla
& Ms. Gayatri
Nandwani,
Advs.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1.
The petitioner is the plaintiff
of the civil suit (TM 07/2013) which was filed sometime in 2013 initially
against the first respondent for reliefs in the nature of permanent injunction
for restraint order against passing off or infringement of the trademark and
the copyright of the plaintiff besides other reliefs in the nature of delivery
up, rendition of accounts etc., the cause of action claimed being with regard
to the use of trademark/label “Taj Mahal” with device of Taj Mahal of copyright
whereof the plaintiff claims to be the owner. As per the pleadings set out in
the plaint, the plaintiff had come across trading by the respondent in the
impugned goods under the trademark/
CM
(M)No.283/2016 Page 1 of 5
device of Taj Mahal sometime in the week of April,
2013, its inquiries having revealed the respondent having started the impugned
activity “recently”, such use being clandestine, surreptitious, sporadic
restricted and minimal.
2.
The petition at hand has been
filed against the order dated 20.10.2015 whereby the application of the
plaintiff seeking permission to amend the plaint invoking the provision
contained in Order VI Rule
17 of the
Code of Civil Procedure, 1908, was dismissed.
3.
Some background facts need to be
noted briefly at this stage. On 14.09.2006, the first respondent had filed a
trademark application bearing application no. 1487304 for registration of the
trademark
“India Crown” (label). The said application was advertised in the
trademark journal no. 1402 on 16.10.2008. The petitioner submitted an
opposition to the said application for registration of trademark on 29.01.2009.
On 06.07.2010, the petitioner had issued and served on the first respondent
notice to “cease and desist” against use of the impugned device Taj Mahal.
4.
In the suit from which the
present proceedings arise, instituted on 26.05.2013, the petitioner had prayed
for ad interim injunction. The trial
court by its orders dated 27.05.2013 and 03.07.2013, had
granted such ad
interim injunction. Meanwhile, the second respondent had also come to be
added as the second defendant in the suit. On an application moved on
03.08.2013 by the second respondent under Order XXXIX Rule 4 CPC, the matter
was reconsidered and by order dated 10.09.2013 the ad interim injunction was vacated. Pertinent to note, the second
defendant had pointed out
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(M)No.283/2016 Page 2 of 5
to the trial Court at that stage, the suppression
of certain facts by the petitioner/plaintiff of the suit, the same concerning
the opposition to the application of the first respondent for registration of
trademark, as submitted on 29.01.2009, and the notice to cease and desist
issued and served on 06.07.2010.
5.
It is immediately after the
vacation of the stay by the afore-mentioned order that the petitioner moved the
application for amendment under Order VI Rule 17 CPC. The application proposed
certain additions to existing paras 34 and 35 of the plaint. Though the
application would state that the petitioner wanted the existing paras to
be “substituted”, it has been confirmed at the
hearing that the existing pleadings in the corresponding paras are intended to
be retained, facts concerning the trademark application of the first respondent
and the notice of opposition filed by the petitioner are proposed to be added
to para 34 and similarly retaining the existing pleadings in para 35, the
petitioners seek to bring on record the service of cease and desist notice
dated 06.07.2010 explaining background facts concerning therewith.
6.
The trial Judge has rejected the prayer for
amendment on the
ground it would introduce “new facts” which are not
“subsequent events”, the absence of such pleadings at the inception creating
doubts about the intent of the plaintiff. In the view of the trial Court, the
permission to amend would add a “new cause of action”, the effort to fill in lacunae
after “substantial decision by the court” being impermissible.
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(M)No.283/2016 Page 3 of 5
7.
The learned senior counsel for
the respondents has placed reliance on judgments titled as Surinder Kumar & Ors. vs. Swarn Singh 150 (2008) Delhi Law Times 294 (DB) and Revajeetu Builders & Developers vs. Narayanaswamy & Sons &
Ors. 2009 (13) SCALE
241
to argue that the amendment has
been rightly rejected by the trial court and this Court ought not interfere.
The thrust of his arguments was that the amendment is an abuse of the process
and that it does not pass the muster to hold the amendment being necessary for
determination of the real dispute between the parties.
8.
It does appear that the
petitioner has been found guilty of suppression of material facts at the time
of adjudication on the application under Order XXXIX Rule 4 CPC and resultantly
has already been denied the benefit of ad
interim injunction. But, it is inherent in the order whereby the
application under Order XXXIX Rule 4 CPC was allowed that the facts concerning
notice of opposition to the application for registration of the trademark and
the notice to cease and desist are material to the controversy. In this view of
the matter, it is not correct on the part of the respondents to now take an
about turn and argue that the facts sought to be added are not necessary for
determination of the real dispute between the parties. The relevancy of such
facts has been demonstrated by the respondents themselves and they cannot be
allowed to now speak otherwise.
9.
It is not that the petitioner is
withdrawing the existing pleadings so as to create the impression that the
cause of action with reference to the impugned activity, noticed in the first
week of April, 2013, is effaced. The existing pleadings are being retained and
alongside the
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(M)No.283/2016 Page 4 of 5
same, the facts of the earlier period, as brought
to the notice of the trial court by the defendants, are being brought on
record. The application for amendment does not make out a new case not the
least to bring a new cause of action. The amendments would not alter the nature
of the suit and there is no substantive decision taken by the trial court yet.
The issues are yet to be framed and the case is yet to enter the stage of
trial.
10.
The apprehension of the
respondents that the petitioner, after this amendment, would be in a position
to re-claim the ad interim
injunction by creating an impression that there has
been no suppression of facts is wholly misplaced. The previous proceedings would
always be there for the defendants to show to the trial court the chronology of
events in proper light.
11.
In the opinion of this Court, the
amendments are necessary for effectual and complete determination of the
controversy raised by the suit and, therefore, the impugned order cannot be
upheld.
12.
Thus, the petition is allowed.
The impugned order is set aside. The permission to amend the plaint is granted.
The amended plaint shall be taken on record by the trial Court. The respondents
have the liberty to file a written statement in answer to the amended plaint
for which the trial court will give appropriate opportunity.
R.K.GAUBA, J.
APRIL 11, 2018
nk
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(M)No.283/2016 Page 5 of 5
