Friends Colour Images Pvt. Ltd. vs Friends Photo Copy Centre and Others

V.K. Shali, J. (Oral)

I.A. No. 6833/2010

This is an application filed by the Plaintiff under Order VI Rule 17 read with Section 151 for amendment of the plaint.

Briefly stated the facts of the case are that the Plaintiff has filed the present suit for permanent injunction for restraining the Defendants from passing off its goods as that of the Plaintiff and rendition of accounts of profits etc. It is alleged in the plaint that the Plaintiff is the proprietor of the trade mark. ''Friends'' in respect of book-binding material, stationary, printed matter, office requisites other than furniture, photocopying laser digital printing, graphic designing, engineering drawings, colour and black and white typesetting etc. It is alleged that the during the pendency of the aforesaid suit the Plaintiffs trade mark application No. 1097119 for registration of its trade mark ''Friends'' in Class 16 was processed for registration. This application was submitted by a partnership firm styled as ''Friends Typewriter Company'' with ''Friends'' as their logo which was initially applied on 25.08.2006. During the pendency of the application the partnership firm was converted into private limited company and the present Plaintiff which is a private limited company took over the entire business including all the goodwill invested in the trade mark ''Friends'' under registration No. 1097119 conferring exclusive statutory rights on the Plaintiff which further substantiates the Plaintiffs proprietorship of the trade mark.

Thus on the basis of the aforesaid facts it is contended by the Learned Counsel for the Plaintiff that as the trademark ''Friends'' was registered on 11.5.2006, therefore, he would like to make consequential amendments in the present plaint including prayer clause so as to seek a restraint order against the Defendant for the infringement action also. The details-of the paragraphs which were sought to be incorporated are mentioned in the application and the amended plaint which is also filed along with the application.

I have heard the Learned Counsel for the Plaintiff. He has relied upon two authorities in support of his application seeking amendment. The first is a case titled Usha International and Another Vs. Usha Television Limited, where the Division Bench of this Court had permitted amendment with a view to avoid multiplicity of cases. The Learned Counsel has also relied upon in a case titled Sarbjyot Kaur Saluja and Others Vs. Rajender Singh Saluja, of a Single Bench judgment of this Court wherein it was observed that mere delay is not a ground for refusing a prayer for amendment.

I have carefully considered the submissions made by the Learned Counsel for the Plaintiff. At the outset, it is stated that so far as the judgment in Usha International (Supra) is concerned the same was passed on 19.03.2002 and the order for amendment in that case was passed by the learned Single Judge on 23.11.1995 much before the Order VI Rule 17 CPC was amended. After 01.07.2002 Order VI Rule 17 CPC has been amended and the same reads as under:

Amendment of pleadings.-- the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

A perusal of the aforesaid provision clearly shows that amendment of the pleadings can be allowed at any stage of the proceedings and on such terms and conditions as may be considered just and reasonable. However, the proviso to Order VI Rule 17 CPC specifically lays down that when the trial has such application cannot be allowed unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised a matter before the commencement of the trial.

A perusal of the aforesaid provision thus clearly shows that so far as the Division Bench judgment in Usha International (Supra) is concerned that was passed before the amendment to Order VI Rule 17 and therefore, it is distinguishable from the facts of the present case. In the instant case, the issues were framed on 05.04.2005 and the affidavit by way of evidence was filed by the Plaintiff on 19.08.2005, and therefore, it can well be concluded that the trial in the instant case has already started. The Plaintiff of his own has admitted in the application that the application for registration of the trade mark was allowed on 11.05.2006. There is not even an iota of averment in the application that the aforesaid fact could have been brought on record by the Plaintiff despite the trial having commenced despite due diligence. It is in this context that the delay in filing the application for amendment after a lapse of almost five years is fatal to the case of the Plaintiff in allowing the application. The judgment which has been relied upon by the Learned Counsel for the Plaintiff in case titled Sarbjyot Kaur Saluja (Supra) does contain observations that mere delay is not a ground for refusing the prayer. But these observations were passed by the learned Single Judge in a case pertaining to domestic violence Act and thus the facts of the said case are distinguishable from the facts of the present case on that score.

For the reasons mentioned above, I am of the considered opinion that since the trial has begun and there is no averment made in the application that despite due diligence the aforesaid fact of registration of trade mark could not be brought on record, the amendment application of the Plaintiff is highly belated and misconceived accordingly the same is dismissed.

CS (QS) No. 1273/2002

List on 30.07.2010 before the learned Joint Registrar