Glaxo Smithkline Pharmaceuticals vs Eudora Laboratries Pvt. Ltd

Indermeet Kaur, J

The order impugned before this Court is the order dated 14.1.2009 wherein the application filed by the plaintiff seeking amendment of his plaint

under Order 6 Rule 17 of the CPC (hereinafter referred to as the ''Code'') had been dismissed. The present suit had been filed on 27.8.1997; it

was a suit for infringement of trade mark, passing of, rendition of accounts. Issues had been framed on 27.1.1998. The matter was initially being

tried by the High Court and thereafter because of enhancement of pecuniary jurisdiction of the subordinate Courts, the matter stood transferred to

the District Courts. This was on 31.10.2003. On 29.3.2006, the present application under Order 6 Rule 17 of the Code had been filed. By way of

this application, the plaintiff had sought enhancement of accounts which were to be rendered by the defendant; initial amount of Rs. 5 lacs was

sought to be enhanced to Rs. 20 lacs corresponding amendments in the paragraphs relating to cause of action and relief were accordingly sought to

be amended.

The primary defence of the defendant was that the application was filed belatedly; it cannot be allowed in view of proviso to Order 6 Rule 17 of

the Code; it was pointed out that the affidavit by way of evidence of the petitioner had also been filed prior to the date of filing of the application;

these contentions of the defendant found favour with the Court and the present under Order 6 Rule 17 of the Code was accordingly dismissed.

Order 6 Rule 17 of the Code 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.

Learned Counsel for the respondent has pointed out that in view of the judgment of the Apex Court reported in Ajendraprasadji N. Pande and

Another Vs. Swami Keshavprakeshdasji N. and Others, I (2008) SLT 159 = I (2008) CLT 65 (SC), the amendment cannot be allowed after the

trial has commenced and the trial is purported to have commenced when the issues are framed which in this case was 27.1.1998.

Learned Counsel for the petitioner in rebuttal has cited the judgment reported in Link Engineers (P) Limited Vs. Asea Brown Boveri Limited

and Others, Link Engineers (P) Ltd. v. M/s. Asea Brown Boveri Limited & Others where the judgment of Ajendraprasadji N. Pandey (supra) had

also been considered. The expression ''commencement of trial'' had come up for consideration. It was noted that in the peculiar facts of that case

of Ajendraprasadji N. Pandey the date of settlement of issues in that case was the date of commencement of trial or in the alternative the date of

filing of affidavit of the examination-in-chief. The Court in Link Engineers (P) Ltd., had noted the observation in the case of Baldev Singh & Others

v. Manohar Singh & Another, VI (2006) SLT 54 had in this context noted herein as under:

The Conspectus of the aforesaid pronouncements and definitions as to when a commencement of trial takes places leaves no manner of doubt

that it refers to a stage after framing of issues and after the hiatus period thereafter where steps have to be taken to start the trial by examination of

witnesses whether in the form of filing of affidavit; of otherwise.

In the case of Link Engineers (P) Ltd., issues had been framed on 28.8.2006; affidavit by way of evidence had been filed on 23.10.2006;

application for amendment had been filed thereafter but before the appearance of the witnesses. In this factual scenario, the Court had permitted

the amendment.

The instant case borders on similar facts. Issues had been framed in this case on 27.1.1998; as noted supra, on 31.10.2003 the matter had been

transferred from the High Court to the District Court; present application seeking amendment of the plaint had been filed under Order 6 Rule 17 of

the Code on 29.3.2006; affidavit by way of evidence had already been filed but admittedly the witness has not come into the witness box for his

cross-examination. There is no other opposition to the application for amendment except this period of delay on the part of the plaintiff.

Keeping in view the ratio of the judgment in Link Engineers (P) Ltd., as also the observations made by the Apex Court time and again that a

party should not be shut out merely because of delay and procedural laws ""are being only handmaid of justice; they have to aid and abet the

dispensation of justice. Keeping in view this factual scenario, it is a fit case where the amendment sought should be allowed. As already noted

supra, the defendant has contested the application only on the ground of delay; no argument has been urged on merits. Parties are yet to go to trial

and to establish and prove their case. No prejudice would be suffered if this amendment is allowed. Respondent can be compensated with costs;

amended written statement be filed in four weeks with advance copy to the plaintiff who file replication in two weeks thereafter. Application is

allowed subject to payment of costs of Rs. 10,000/-. Petition disposed of.