JUDGMENT C.K. Mahajan, J.
1. By way of this application, the plaintiff seeks to amend the plaint to include paragraphs 20A and 20B as set out in paragraph 5 of the application.
2. Briefly the facts are that the plaintiff is running a television channel under the trademark HBO/HOME BOX OFFICE since November 1972. In March 1996, plaintiff learnt that defendant No. 2 proposed to launch a cable television programming service under the mark CBO/CABLE BOX OFFICE. Accordingly, the plaintiff filed the present suit for permanent injunction, passing off, etc. against the defendants.
3. It is stated that during the pendency of the suit, the plaintiff launched HBO channel in India in March 2000. At the time of institution of the suit, the channel of the plaintiff was not available on cable television in India. Therefore, the plaintiff seeks leave to amend its plaint by inserting paragraphs 20A and 20B in the plaint as set out in the application.
4. The amendments sought for are opposed by the defendants No. 1 and 2. It is stated that the present application has been filed by the plaintiff to delay the disposal of the suit after having obtained an injunction in its favor. The application has been filed after a delay of more than 2 years. The delay is unexplained. An application for amendment of the issues before the date of trial was allowed and Issue No. 5 was reframed.
5. The present suit has been filed on trans border reputation as it existed on the day of institution of the suit and any subsequent development or enhancement in the reputation of the trade mark in India is of no consequence and therefore is not necessary for determining the real controversy between the parties. The amendments seek to change the nature of the claim which is impermissible. The subsequent launch of the HBO channel in India was nothing to do with trans border reputation or reputation as existed on the date the suit was filed.
6. In rejoinder, the plaintiff has stated that transborder reputation is an element of passing off as is the actual use of the trademark in India and therefore the present amendment does not change the nature of the suit. The actual use of a trademark in India is another element of passing off and by way of the present application, the plaintiff seeks to include the actual use of the plaintiff's mark in India.
7. I have heard learned counsel for the parties.
Rule 17 of Order VI of the Code of Civil Procedure reads as under:-
"17. 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."
8. An amendment may be allowed at any stage of the proceedings. An amendment application can be entertained even after the close of the case for judgment and before judgment is pronounced. It is also a settled law that all amendments of the pleadings should be allowed which are necessary for determination of the real question in controversy between the parties in the suit provided the proposed amendment does not alter or substitute a new cause of action. The proposed amendments should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. Hypertechnical approach should not be adopted and instead a liberal approach should be the general rule. A prayer for amendment can be rejected if the same is not bona fide.
9. In view of the settled position of law, to my mind, the amendments are necessary for the purpose of determining the real questions in controversy and would not cause any prejudice to the defendants if the same are allowed. The amendments as sought for in para 5 of the application have been necessitated because of the introduction of the HBO channel in India which was not within the knowledge of the plaintiff when the suit was filed.
10. The proposed amendments sought to be made in the plaint do not change the nature of the suit. The plea of the defendants that any subsequent development or enhancement in the reputation of the trade mark in India is of no consequence and therefore is not necessary for determining the real controversy between the parties is untenable.
11. Mere delay and laches in making the application for amendment is no ground for refusal of the amendment. Amendment is a discretionary matter and although amendment at a late stage is not to be granted as a matter of course, the court must bear in favor of doing full and complete justice in the case where the party against whom the amendment is to be allowed can be compensated by cost or otherwise. In a given case amendment was allowed even after a delay of seven years. If subsequent developments and altered circumstances are relevant in adjudging the nature and character of the claim made, the Court should permit amendment bringing such subsequent developments and altered circumstances on the record.
12. Learned counsel for the defendants has placed reliance on a judgment of this Court in Jai Kishan Khanna v. Mela Ram Properties Pvt. Ltd. wherein the Court disallowed the second application for amendment on the ground that the application was moved three years after the evidence had been led and that the amendment sought for was not relevant to the controversy.
13. The judgment cited by the respondent is distinguishable on facts. In the present case, evidence is still to be led. Moreover, the amendments have been necessitated because of subsequent events and are necessary for proper adjudication of the disputes between the parties.
14. In these circumstances, the application is allowed.
I.A. 7920/2002
15. By way of this application, plaintiff seeks to lead evidence by way of affidavit in lieu of examination-in-chief. It is stated that some of the witnesses of the plaintiff do not reside in India and the time period and expenses would be considerably reduced if the plaintiff is permitted to lead evidence by way of affidavits.
16. Reply to this application has not been filed despite opportunity having been given on 6th September 2002. Right to file reply is closed.
Heard.
17. For the reasons stated in the application, the same is allowed.
S. No. 2116/96
18. The Joint Registrar attached to this Court is appointed as Local Commissioner to record the evidence of the parties.
19. Plaintiff to file evidence by way of affidavits of its witnesses within four weeks. After cross-examination of plaintiff's witnesses is complete, the defendant shall file evidence by way of affidavits of its witnesses.
20. List before the Joint Registrar for recording evidence of the parties on 27.1.2003.