K.M. Mehta, J.@mdashM/s. Bhandari Products, petitioner, original defendant No. 1, has filed this petition under Article 227 of the Constitution of India with a prayer that this Court may issue writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned judgement and order below Chamber Summons Application Exh. 55 in Regular Civil Suit No. 988 of 2005 passed by the learned Judge, Court No. 9, City Civil Court, Ahmedabad, on 27.11.2006 and further prayed that this Court may dismiss the amendment application at Exh. 55 in the Suit which has been filed by the original plaintiff.
1.1 This petition was filed on 18.12.2006. The matter was placed for hearing on 22.12.2006 and thereafter on 26.12.2006 and also on 27.12.2006. Thereafter, the matter has been placed for hearing today. I have heard Mr. Jasani, learned advocate for the petitioner. I have also heard Mr. Y.J. Trivedi, learned advocate, on behalf of the respondent No. 1.
2. The facts giving rise to this petition are as under:
2.1 M/s. Giriraj Enterprises, respondent No. 1, original plaintiff has filed Regular Civil Suit No. 988 of 2005 in the City Civil Court at Ahmedabad for passing off action u/s 27 of the Trade Marks Act, 1999 (hereinafter referred to as ''the Act'') as well as infringement of Copyright Act particularly Section 51 of the Copyright Act, 1957). The plaintiff further prayed for account of profit and damage against Mr. Rajendra Maru, sole proprietor of M/s. Bhandari Products, defendant No. 1 in the main Suit. Defendant No. 1 is a registered Partnership Firm having its office at 132, 1st Floor, Ratnamani Complex, Nagarsheth Wando, Gheekanta, Ahmedabad. The Suit was filed on 8.6.2005.
2.1A In the suit filed for passing off action as well as infringement of Copyright Act the plaintiff has submitted in para 5 that the plaintiff has applied for registration of copyright and obtained copyright registration certificate in 2004. Hence the plaintiff is the exclusive proprietor of the said artwork/label and therefore the suit for infringement of copyright is maintainable at law.
2.1B In paragraph No. 6 of the Suit the plaintiff has submitted that the plaintiff has adopted and used the trademark/label containing and consisting trademark LAXMI with a device of goddess LAXMI for the last more than three decades and to acquire statutory rights with respect to the said mark, plaintiff has applied for registration of the said mark under the provisions of the Act on 8.5.1990. The plaintiff stated that the trademark registration application was accepted and advertised in the trademark journal and the same is opposed by defendant No. 1, the said opposition abandoned by the competent authority. The time to file review or appeal is expired. Hence the application is due for registration and plaintiff is likely to receive the certificate of registration within short time. However, the fact remains that on the date of filing of suit namely 8.6.1990 the plaintiff did not receive the registration of trademark and therefore the present suit has been filed u/s 27 of the Act namely for passing off action. In the said para it is specifically stated as under:
The plaintiff further submits that the plaintiff craves leave to amend the plaint on issue of infringment of trademark as and when the plaintiff receives the registration certificate.
2.1C The plaintiff also further submitted in the said suit that the plaintiff Giriraj Enterprise is first adopter and has first used the trademark/label containing and consisting trademark LAXMI with a device of Goddess LAXMI openly, extensively, continuously and uninterrupted in the Indian markets and have acquired very good reputation and goodwill and thereby they have acquired common law right to restrain any other person, firm or company from using the said trademark/label containing and consisting trademark LAXMI with a device of goddess LAXMI and/or any mark which may be identical and/or deceptively similar for same goods and thereby enable them to pass off its goods as and for the goods of the plaintiff sold under the mark LAXMI. The plaintiff relies on a copy of opposition filed by defendant No. 1 with separate list to prove the admission of deceptively similarity between the mark and use of identical mark, which is subsequent in adoption of use the said mark. It is further stated that the plaintiff is not only manufacturing and marketing the said goods under the said mark in India but plaintiff is exporting the products in foreign market. The plaintiff states that the plaintiff has spent considerable amount for advertisement and promotional expenses. In view of the other averments made in the suit, in para 21 the plaintiff has prayed for the following reliefs:
21(A) The defendants, their servants, agents, dealers, distributors, stockists, retailers etc. be restrained by an order of permanent injunction from manufacturing and marketing sta-isabgul being laxative products under the trademark/label containing and consisting trademark LAXMI with a device of Goddess LAXMI and/or any other mark/label which is identical and/or deceptively similar to the plaintiffs trademark/label containing and consisting trademark LAXMI with a device of Goddess LAXMI thereby restrain them from committing an act of passing off.
21(B) The defendants, their servants, agents, dealers, distributors, and retailers be further restrained by an order of permanent injunction from printing, publishing and using the said trademark/label containing and consisting trademark LAXMI with a device of Goddess LAXMI label having the same colour scheme and similar get up and arrangements of the plaintiff''s trademark/label containing and consisting trademark LAXMI with a device of Goddess LAXMI label and thereby restrain them from committing act of infringement of the plaintiff''s copyright.
4. Along with the Suit the plaintiff also filed Notice of Motion before the learned City Civil Judge and the learned trial Judge issued notice on the same day i.e. on Exh. 5.
5. As the learned Judge did not give any ex-parte ad-interim injunction as prayed for by the plaintiffs, the plaintiffs filed Exh. 10 application on the same day stating that the learned Judge may give reasons as to why the learned Judge has not given ex-parte injunction as prayed for by the plaintiff. In view of the same, the learned Judge has given reasons for refusing the interim injunction on the same day on Exh. 10.
6. Being aggrieved by and dissatisfied with the order of the learned trial Judge refusing to grant interim injunction the plaintiff filed Appeal from Order No. 247 of 2005 before this Court. The matter was heard by my learned brother Hon''ble Mr. Justice S.R. Brahmbhatt and my learned brother after hearing passed the following order in paragraph Nos. 2 and 3:
2. Shri Tolia has urged that the trial Court has refused to record reasons and decline to grant ex-parte interim injunction in a trade mark matter. He has placed reliance upon the decisions of the Hon''ble Supreme Court in
3. In view of this, notice returnable on 28.6.2005. In the meantime, the trial Court is directed to decide Exh. 5 application as soon as possible and in any case, by the returnable date i.e. 28.6.2005. It is also necessary to mention that the defendant No. 1 is at liberty to move this Court prior to the returnable date in case of any difficulty. Direct service is permitted.
7. Pursuant to the said order, it appears that though the defendant was served, however for the reasons which the defendant has subsequently stated, the defendant could not appear before the learned trial Judge. However, the learned trial Judge heard the Notice of Motion in absence of the representative of the defendant and granted the interim injunction by order dated 16.6.2005
8. Being aggrieved and dissatisfied with the said order of the learned trial Judge, the petitioner filed Appeal from Order No. 259 of 2005 before this Court. The said matter reached hearing before this Court and this Court (Coram: D.H. Waghela, J) passed order on 1.7.2005. In 3, my learned brother Mr. Justice Waghela has passed the following directions:
(a) The appellant shall make an application under Order 39 Rule within a period of one week from today and the same shall be heard and disposed, as far as practicable, within two weeks of filing of the application.
(b) If the hearing of the application proposed to be filed by the appellant is prolonged beyond two weeks and the delay is attributable to a particular party, the trial Court shall have the power to make appropriate orders granting or modifying the interim relief.
[c] Learned advocates for the parties shall co-operate in the earliest possible disposal of the application proposed to be filed by the appellant and shall not ask for any unnecessary adjournment.
(d) The trial Court shall hear and dispose the application proposed to be filed by the appellant on its own merits without being influenced by the earlier orders, including this order.
5. Upon the above understanding being recorded and the directions being issued, the appeal stands disposed. Direct service is permitted.
9. In view the aforesaid development, the matter was pending before the trial judge for hearing Notice of Motion.
10. During the pendency of the proceedings, it appears that it has been stated that the plaintiff''s application for for trade mark under No. 529272 dated 8.5.1990 is registered with the Registrar of Trade Marks and the Registrar of Trade Marks was pleased to issue Registration Certificate No. 387994 dated 14.6.2005. The said Registration Certificate is valid and is in existence. It was stated that the said registration is in respect of the trade mark effective from 8.5.1990 which is prior to the date of filing of the suit, hence the plaintiff is entitled to take infringement action against the defendant for use of identical and/or deceptively similar trademark as that of the plaintiff registered trademark device of LAXMI. The said certificate was also produced along with the amendment application. In view of the same, the plaintiff filed amendment application under Order 6 Rule 17 on 7.8.2006 and in the said amendment application, the plaintiff has sought for amendment of the plaint by inserting para No. 6(a) after para No. 6 and by inserting prayer 21(AA) after prayer 21(A) in paragraph No. 21 in the plaint. Prayer 21(AA) reads as under:
21(AA) The defendants, their servants, agents, dealers, distributors, stockists, retailers, etc., be restrained by an order of permanent injunction from manufacturing and marketing sat-isabgul being laxative products under the trademark/label containing and consisting trademark LAXMI with a device of Goddess LAXMI and/or any other mark/label which is identical and/or deceptively similar to the plaintiffs trademark/label containing and consisting trademark LAXMI with a device of Goddess LAXMI thereby, restrain them from committing an act of infringement of the registered trademark of the plaintiff.
11. The defendant filed reply to the said application on 1.9.2006 pointing out several objections before the trial Court. The said reply is on pages 71 to 87 i.e. Exh. 52 before the trial Court.
12. The learned trial Judge has heard the amendment application and the learned trial Judge passed judgement and order dated 27.11.2006 and in para 13 the learned trial Judge has given the following reasons and ultimately allowed the application for amendment of the Suit.
para 13 - I have heard L.A. Shri Jasani at length and his objections. However, in this case, it has been stated in the plaint at the time of institution of the Suit that the procedure of registration is pending and now, the plaintiff has availed it. So, the said facts the plaintiff requires to amend it under Order 6 Rule 17, the amendment is permissible at this stage. The legal objections of L.A. Shri Jasani that nature of the Suit will be changed in such circumstance, the plaintiff will not entitle to get the relief as prayed for or in consequences, the Suit may be dismissed. However, the amendment application cannot be rejected or disallowed. So I pass the following order.
13. Being aggrieved and dissatisfied with the said judgment and order of the trial Court the original defendant has filed the present petition. Mr. Jasani, learned advocate for the petitioner has vehemently contended that the learned trial Judge has not properly considered the provisions of the Trade Mark particularly Section 28(3) read with Section 30(2)(e) of the Trade Marks Act, 1999.
14. He has also relied on the judgement of the Hon''ble Supreme Court in the case of
para 15. The object of the rule is that the Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
14.1 In support of the same, he has also relied on the judgment of the Delhi High Court in the case of P.M. Diesels Private Limited v. Thukral Mechanical Works reported in PTC (Suppl)(2) 863 (Del) decided by the Court (Coram: B.N. Kirpal, J (as he was then) on 19.1.1988 (AIR 1988 Delhi 288).
15. On the other hand Mr. Y.J. Trivedi, learned Sr. advocate for the respondents has stated that in this case admittedly when the Suit was filed on 8.6.2005 the plaintiffs did not obtain registration under the provisions of the Trade Mark Act for the word ''LAXMI''. However, only subsequently on 14.6.2005 the Registrar of Trade Mark has issued registration certificate in favour of the plaintiff of trade mark ''LAXMI''. He therefore submitted that the amendment application is filed on the basis of the events which have been happened subsequent to the Suit. He submitted that originally the Suit was filed for passing off action. As he has now obtained registration certificate under the provisions of the Trade Marks Act, he can also pray for further relief for infringement of trade mark in the plaint and the Court can take notice of changed circumstances and by reasons of subsequent developments the plaintiff is entitled to additional reliefs over and above the reliefs which were already prayed earlier in the suit. He has also relied on the reasoning of the learned trial Judge where the learned trial Judge has also stated that at the time of institution of the suit that the procedure of registration is pending and now, the plaintiff has availed it. So, the said facts the plaintiff require to amend it under Order 6 Rule 17, the amendment is permissible at this stage and on that ground the amendment application cannot be disallowed. The learned trial Judge has given cogent and convincing reasons and this Court under Article 227 of the Constitution of India will not entertain the petition.
15.1 The learned Counsel has also relied on the judgment of the Hon''ble Supreme Court in the case of
15.2 In this case also the original suit filed was for passing off action. Once the plaintiff has obtained registration, naturally the plaintiff can file independent suit for infringement of Trade Marks also. On this analogy the amendment application ought to have been allowed.
16. As regards the principle of amendment he has also relied on the judgment of the Hon''ble Supreme Court in the case of Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. (supra) particularly where the Hon''ble Apex Court has held in para 15 that the object of the rule is that the Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties and the cause of action arose during the pendency of the suit and the proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed and once the plaintiff can file independent suit why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. The learned Counsel further submitted that as per the said judgment the real controversy test is the basic and cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed. The present case falls within the ratio of the said judgment particularly in para 15 of the said judgment of the Hon''ble Supreme Court in the case of Rajesh Kumar Aggarwal v. K.K. Modi (supra) and in fact the said judgment helps the case of the plaintiff. He has also relied on paragraph Nos. 17 and 19 of the said judgment and also he has relied on paragraph No. 28 on page 398 which reads as under:
Since the Court has entered into a discussion into the correctness or falsity of the case in the amendment, we have no other option but to interfere with the order passed by the High Court. Since it is settled law that the merits of the amendment sought to be incorporate by way of amendment are not to be adjudged at the stage of allowing prayer for amendment, the order passed by the High Court is not sustainable in law as observed by this Court in
17. The learned Counsel submitted that while the argument has entered into the merits of the matter it is not permissible while considering the amendment application and paragraph No. 28 of the said judgment of the Hon''ble Supreme Court in the case of Rajesh Kumar Aggarwal (supra) completely answers the contention of the learned Counsel for the original defendant herein.
FINDINGS AND CONCLUSIONS:
18. I have considered the aforesaid facts of the case. In this case the suit was filed on 8.6.2005 on the ground of passing off a trade mark and infringement of copyright because on that day the plaintiff did not obtain registration of trade mark. However, as contended in the amendment application the Registrar of Trade Mark has granted registration certificate of trade mark only on 14.6.2005 and therefore the present amendment can be allowed on the basis of the events which have happened subsequent to the suit. This Court, therefore, in the interest of justice has to take notice of subsequent events and grant appropriate relief because in the trade mark suit the relief of passing off as well as infringement are very vital reliefs to be prayed by the plaintiff.
19. This Court also refers to the judgment of the Hon''ble Supreme Court in the case of
19.1 The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts.
SUBSEQUENT EVENTS:
19.2 The basic rule of every litigation is that the rights of the parties must be determined on the basis of the date of filing of the Suit.
19.3 The Court may, however, take notice of subsequent events in order to shorten litigation, to preserve, protect and safeguard rights of both the parties and to subserve the ends of justice. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.
[(Re: paras 19.2 & 19.3 from C.P.C. - by Hon''ble Mr. Justice C.K. Thakkar (now judge of the Hon''ble Supreme Court), Volume 3, pages 482-483 Headnote No. 39 Subsequent Events - Under Order VI Rule 17)]
20. In this case I also rely on the judgement of this Court in the case of Ganchi Mohmadbhai Kaduji v. State of Gujarat in Special Civil Application No. 7962 of 2004 delivered on 16.11.2006 where this Court has in para 18 also considered the judgement of the Hon''ble Supreme Court in the case of Rajesh Kumar Aggarwal v. K.K. Modi (supra) and also relied on another judgement of the Hon''ble Apex Court in the case of Baldev Singh and Ors. v. Manohar Singh and Anr. reported in 2006(6) SCC 498 particularly paragraph Nos. 8 and 9 of the said judgment and ultimately in paragraph Nos. 25 to 25.6 this Court considered the principles of Order VI Rule 17 of the CPC and the principles in connection with the amendment of pleadings. The said paragraphs are reproduced as under:
25.1 The object of the Rule is that the courts should try the merits of the cases that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. (
25.2 Ultimately, courts exist for doing justice between the parties and not for punishing them, and they are empowered to grant amendments of pleadings in the larger interest of doing full and complete justice to the parties. (
25.3 If the amendment is necessary to decide the ''real controversy'' between the parties, the amendment should be allowed even though the court may think that the party seeking the amendment will not be able to prove the amended plea. This is the basic test which governs the courts'' unchartered powers of amendment of pleadings. No amendment should be allowed when it does not satisfy this cardinal test. (Per P.B. Mukharji, J. in
25.4 Power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be readily granted.
25.5. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties.
PRINCIPLES:
25.6 Provisions relating to amendment of pleadings must be liberally construed with a view to promote the ends of justice and not to defeat them. The purpose and object of the rules of pleadings is to decide the real controversy between the parties and not to punish them for their mistakes, negligence or shortcomings. The exercise of discretionary power must be governed by judicial considerations and the wider the discretion, the greater the care and circumspection. The following principles should be borne in mind in dealing with applications for amendment of pleadings:
(i) All amendments should be allowed which are necessary for determination of the real controversies in the suit;
(ii) The proposed amendment should not alter and be a substitute for the cause of action on the basis of which the original lies was raised;
(iii) Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated by means of amendment;
(iv) to (vi) xxxxxx
(vii) No party should suffer on account of the technicalities of law and the amendment should be allowed to minimize the litigation between the parties;
(viii) xxxxxx
(ix) Error or mistake, which if not fraudulent, should not be made a ground for rejecting the application for amendments of pleadings.
[Re: Para 25.6 Code of Civil Procedures, Vol.3, pages 473-474 by Hon''ble Mr. Justice C.K.THAKKER, (now Judge of the Hon''ble Supreme Court of India)].
21. The basic rule of every litigation is that the rights of the parties must be determined on the basis of the date of filing of the Suit. He has further submitted that the Court may take notice of subsequent events in order to shorten litigation, to preserve, protect and safeguard rights of both the parties and to subserve the ends of justice. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the before the Court.
22. The basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of the relief sought for by the plaintiff. In view of this fact, it is always open to the plaintiff to file a fresh suit. In view of this, this Court fails to understand, if it is permissible for the plaintiff to file an independent suit why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit by way of amendment. In the facts and circumstances of the present case allowing the amendment would curtail multiplicity of legal proceedings.
23. It is no doubt true that the trial Court has given reason for amendment but as far as this Court is concerned this Court confined only to certain aspect. In this case the Suit was filed on 8.6.2005 whereas the plaintiff has received registration subsequently. Therefore, on theory of subsequent event, the plaintiff is entitled to amendment of plaint. In this regard this Court relies on the judgement of the Hon''ble Supreme Court in the case of
24. In view of this, I reject the writ petition filed by the petitioner and this being the Suit of 2005 this Court requests the learned trial Judge to decide the Notice of Motion after considering the contention of defendants particularly u/s 28 and 30 of the Trade Mark Act and also in accordance with law and he is entitled to raise all the contentions which he has raised in the petition. The learned trial Judge is requested to consider the judgements of the Hon''ble Supreme Court relied on by the learned Counsel for the parties.
25. In the result the petition is rejected.
