Mohd Anesur Rahaman vs Mosarraf Hossain And Ors

Yogesh Khanna, J

IA No.843/2017

This application under Order 6 Rule 17 CPC is moved for amendment in the plaint. The learned counsel for plaintiff/ applicant alleges when the suit

was filed, the plaintiff had applied for the registration of the trademark / label ANDAZ BIRI NO.205 LABEL/ ANDAZ BIRI in relation to adverting,

distribution, marketing, wholesale and retail services relating to Bidi falling in class No.35 of the IVth Schedule attached to the Trademarks Act, 1999.

However during the pendency of this suit, the ANDAZ BIRI NO.205 LABEL has been registered by the Trade Mark Registry on 04.07.2016 and

the copy of the registration certificate is annexed. Since, now the registration has been effected the plaintiff intends to pursue against the defendant

for infringement of the plaintiff’s registered trademark/ ANDAZ BIRI NO.205 LABEL in relation to the alleged impugned activity of the

defendant already pleaded in the plaint. Hence, the plaintiff intends to add para No.5A in the plaint just after para No.5 and also intends to incorporate

sub para (iv) to para No.28A qua the relief of infringement of the registered trademark ANDAZ BIRI NO.205 LABEL No.2144329 in class No.35.

Further, he intends to add sub para (c) to para No.22 in the heading of infringement of copyright to be amended as infringement of trademark and

copyright and sub para (c) in para No.22 to be read as “Infringement of Plaintiff’s trademark ANDAZ BIRI NO.205 LABEL registered under

No.2144329 in class 35.â€​

The learned counsel for the defendants, though has filed reply, but did not seriously challenge the amendment. Even otherwise, the facts

necessitated amendment are effectuated by the subsequent events and hence there is no impediment as to why it should not be allowed since is

necessary to resolve the controversy involved.

This Court in Usha International & Another vs. Usha Television Limited 2002 (25) PTC 184 (Del) (DB) has held as under:-

“15. The rule of amendment of pleadings has to be governed on the basic rule of justice, equity and goods conscience. When this

principle is applied, the amendment as prayed has to be allowed. We are satisfied that the alternative plea that is sought to be raised by the

appellant in the amendment application is only by way of expatiating his rights which he has secured by a statute. Apart from this, the main

consideration for allowing the application is to avoid multiplicity of proceedings which means saving of precious judicial time and saving of

avoidable expenses for the litigants.â€​

In view of above, the application of plaintiff is allowed. The amended plaint is taken on the record. No order as to cost.

CS(COMM) 1418/2016

Let defendants file the written statements to the amended plaint, if any, within four weeks from today with an advance copy thereof to the learned

counsel for the plaintiff. Replication thereto, if any, be also filed within two weeks thereafter.

List for completion of the pleadings, admission/denial of the documents before the Joint Registrar on 14.02.2018.

Only upon completion of pleadings matter be listed in Court.+