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Judgment
S. Usha, J
All these five appeals pertain to different applications but an identical order regarding amendment has been passed by the joint Registrar.
The details of the applications are-Trademark "" Komax
The above said applications were advertised in the Trade Marks Journal and the appellants herein opposed the registration of the impugned trade mark
Komax"". After the pleadings were completed, the matters were set down for hearing on a particular date. But due to various reasons, the matters
were adjourned. The matters were finally set down for hearing on 22/03/2006. On 20/03/2006, the appellant herein filed a request on Form TM 16 for
amendment of the notice of opposition. The amendments included the list of their registrations and few orders in various other opposition proceedings.
The respondent opposed the request for amendment.
The 2nd respondent herein heard both the counsel and rejected the request on the finding that the amendment sought to be made is merely technical
and useless. The same is not necessary for determining the real issues. The proposed amendment cannot be permitted because they would be allowed
to set up a new case. The third party decisions will not be binding in other proceedings as each case depends upon its own facts. The TM 16 does not
disclose the matter that whatever is now sought to be brought on record was not well within their knowledge at the time of filing the opposition. The
request on Form TM 16 is only to delay the proceedings and to harass the respondents. The request on Form 16 was dismissed.
Being aggrieved by the impugned order, the appellants filed the appeals on the ground that they are the registered proprietors of various trade mark
like Max, Climax, New Max etc. The impugned trade mark Komex is deceptively similar and that the registration would cause confusion and
deception among the public. The amendment sought before the registrar was necessary and that the Registrar was wrong in rejecting the request. The
amendment was to include the list of registrations, list of decisions decided in favour of the appellants to amend the verification column as per the new
Act.
The 1st respondent though were served with the appeal papers did not enter appearance nor did they file their counter statement. On the date of
hearing Shri C.R. Bakshi advocate appeared and filed the vakalath. The counsel was directed to file his written submissions. The counter statement
could not be filed as there was a delay of more than six years.
We heard both the counsel.
The learned counsel for the appellant relied on the judgments passed by this Board in matters where there were identical issues and submitted that
the appeals be allowed and the matter be remanded back to the Registrar for further hearing based on the earlier orders of this Board.
The learned counsel for the respondent vehemently opposed. The respondents in their written submissions have opposed and have submitted that
the request on Form TM 16 is filed only to drag the proceedings and to delay the grant of registration.
The appellants have filed a batch of appeals numbering OA/62-69/2006/TM/KOL. Out of the eight appeals three appeals have already been
decided by this Board. The respondents are different but the appellants is the same in all the appeals. The facts are identical and the impugned order is
also identical in all the matters. We therefore think it fit to quote the principles laid by the Hon'ble Supreme Court and various High Courts & our
observations in already decided connected appeals. In ""Mex Switchgears Pvt. Ltd. v. LG Electronics Inc, Goldstar Co. Ltd. & Ors.""- 2011 (46) PTC
366 (IPAB), the issue has been elaborately dealt with and held as under:
It is worthwhile to quote the observations of the Hon'ble Supreme Court in the case reported in 2009 (10) SCC 84--Ravajeetu Builders and
Developers v. Narayanaswamy and Sons & Ors.
If we carefully examine all the cases, the statement of law declared by the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC
249 has been consistently accepted by the courts till date as correct statement of law. The Privy Council observed:
All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be
made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but
nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment,
the subject-matter of the suit.
The general principle is that courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on
such terms as may be just and all those amendments must be allowed which are imperative for determining the real question in controversy between
the parties. The basic principles of grant or refusal of amendment articulated almost 125 years ago are still considered to be correct statement of law
and our courts have been following the basic principles laid down in those cases.
In the leading English case of Cropper v. Smith, (1884) 29 Ch D 700, the object underlying amendment of pleadings has been laid down by
Browen, L.J. in the following words:
It is a well established principle that the object of the courts is to decide the rights of the parties and not punish them for mistakes they make in the
conduct in their cases by deciding otherwise than in accordance with their rights..... I know of no kind of error or mistake which, if not fraudulent or
intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline
but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace..... it seems to me that as
soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter
of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right.
In the said case, Pollock, J. quoting with approval the observation of Bremwell, L.J. rightly observed:
The test as to whether the amendment should be allowed is, whether or not the defendants can amend without placing the plaintiff in such a position
that he cannot be recouped, as it were, by any allowance of costs, or otherwise. According to him such an amendment ought not to be allowed.
In Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala and Ors. AIR 1964 SC 11, the defendant's prayer for amendment by treating
a counter claim as cross-suit was objected to by the plaintiff inter alia on the ground of limitation. The amendment, however, was allowed.
When the matter reached this Court, while affirming the order of the High Court, the majority stated:
... It is, no doubt, true that, save in exceptional cases, leave to amend under Order 6, Rule 17 of the Code will ordinarily be refused when the effect of
the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either
fresh allegations are added or fresh reliefs sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an
existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be
considered in allowing such clarification of a matter already contained in the original pleading.
The Court further observed that since there was no addition to the averments or relief, it was not possible to uphold the contention of the plaintiff
that by conversion of written statement, into a plaint in a cross-suit, a fresh claim was made or a new relief was sought. To the facts of the present
case, therefore, the decisions, holding that amendments could not ordinarily be allowed beyond the period of limitation and the limited exceptions to that
rule have no application.
Reversing the order of the High Court, this Court (per Shah, J., as he then was) made the following oft -quoted observations:
Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some
mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless
it is satisfied that the party applying, was acting malafide, or that by his blunder, he had caused injury to his opponent which may not be compensated
for by an order of costs. However negligent or careless may have been the first omission and however late the proposed amendment, the amendment
may be allowed if it can be made without injustice to the other side.
In Haridas Aildas Thadani and Ors. v. Godraj Rustom Kermnani, (1984) 1 SCC 668 this Court said that ""It is well settled that the court should be
extremely liberal in granting prayer for amendment of pleading unless serious injustice or irreparable loss is caused to the other side. It is also clear
that a revisional court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling
circumstances.
In B.K. Narayana Pillai v. Parameshwaram Pillai and Anr., (2000) 1 SCC 712, a suit was filed by A for recovery of possession from B alleging
that B was a licensee. In the written statement B contended that he was a lessee. After the trial began, he applied for amendment of the written
statement by adding an alternative plea that in case B is held to be a licensee, the licence was irrevocable. The amendment was refused.
Setting aside the orders refusing amendment, this Court stated:
The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be
just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of
guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all
circumstances. But it is equally true that the courts while deciding such prayers should not adopt hyper-technical approach. Liberal approach should be
the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper
the courts in, the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.
WHETHER AMENDMENT IS NECESSARY TO DECIDE REAL CONTROVERSY:
The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the
determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which
should govern the courts' discretion in grant or refusal of the amendment.
NO PREJUDICE OR INJUSTICE TO OTHER PARTY:
The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be
caused to other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to
the opposite side.
In Ganga Bai's case (supra), this Court has rightly observed:
The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation
notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater
ought to be the care and circumspection on the part of the court.
APPLICATIONS FOR AMENDMENTS:
On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing
or rejecting the application for amendment.
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?
(2) Whether the application for amendment is bonafide or malafide?
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money:
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and
(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of
application.
In view of the above observation made in the earlier connected matters we do not think it reasonable to have a different view. The amendments
sought for is to include the list of registrations and the oppositions and to include the verification column as per the New Act. In our considered view,
there is no material change or alternative in the pleadings which will cause injury to the respondent. We therefore direct the Registrar to allow the
appellant to amend the notice of opposition. The Registrar may also give sufficient time to the respondents to file their additional counter statement if
any. The Registrar is to decide the matters in accordance with law. There shall be no order as to costs. Consequently all MP's are closed