Bush Boake Allen (India) Ltd. vs Red Club Products Corporation
1988 Latest Caselaw 104 Del

JUDGMENT

Jagdisli Chandra, J.

(1) This order shall dispose of the plaintiff's application moved under Order 6 Rule 17 of the Code of Civil Procedure for the amendment in the plaint. At present the defendant in the suit is "Red Club Products Corporation" which is a partnership firm having its principal place of business at premises 19/21,Shakti Nagar, Delhi-110007. In para No. 2 of the plaint the plaintiff expressed its ignorance about the names and other particulars of the partners of the defendant firm and so filed an application, along with the plaint, under Order 30 Rule 1 of the Code of Civil Procedure calling upon the defendant to furnish a statement of the names and addresses of its partners. Consequently, the defendant firm provided the plaintiff with a copy of its partnership deed from which the plaintiff learnt the names and addresses of the partners of the defendant. The plaintiff, thus, wants to implead all the four partners, namely; (a) Smt. Man Mohan Kaur. (b) Miss Harleen Chhabra, (c) Shri Sanjeev Singh and (d) Master Gurnish Singh (Minor) (through Shri Sohinder Singh, father and natural guardian) as co-defendants in the suit as also in the application moved under Order 39 Rules 1 and 2 of the Code of Civil Procedure.

(2) The plaintiff also wants to implead as a co-defendant M/s. Sher-e-Punjab Trading Company through its proprietor Suhinder Singh alleging that the defendant distributes its products through M/s. Sher-e-Punjab which was also the distributor of the plaintiff's products up to the year 1978, but the plaintiff terminated the distributorship agreement with M/s. Sher-e-Punjab on account of non-payment of dues by the said distributor.

(3) The suit of the plaintiff against the defendant-firm is one for perpetual injunction seeking to restrain the defendant-firm, its servants and agents from using the trade mark 'RED STAR' and device of a 'Star' and/or any other trade mark deceptively similar to the plaintiff's registered trade mark 'STAR BRAND' and/or any other mark deceptively similar thereto. Perpetual injunction is also sought against the defendant-firm, its servants and agents from passing off its goods as and for the goods of the plaintiff by using the infringing trade mark 'RED 'STAR' and the infringing device of a 'Star'. Rendition of accounts of profits made by the defendant-firm by the sale of its products under the infringing trade mark 'RED STAR' and infringing device of a 'Star' has also been sought against the defendant-firm.

(4) Now the same remedies and prayers are sought against all the four partners of the defendant-firm as also against the defendant's products distributor M/s. Sher-e-Punjab after the amendment of the plaint.

(5) This application has been resisted by the defendant.

(6) It was argued by Mr. Swatantar Kumar learned counsel for the defendant that the proposed amendment should not be allowed as by this amendment the plaintiff seeks to set up a new case which was neither pleaded nor was a basis of the claim in the plaint. This contention is obviously unfounded because, as already pointed out above, the plaintiff sought permanent injunction against the defendant from using the infringing trade mark 'RED STAR' and the infringing device of a 'STAR' as also from passing off its goods as the goods of the plaintiff, as the plaintiff had its registered trade mark 'STAR BRAND'. This very case of the plaintiff remains intact as also this claim and there is no effort on the part of the plaintiff to set up any deviated case or an entirely new case by seeking to implead the partners of the defendant firm and the distributor of the defendant firm's products. As a matter of fact by seeking to implead these persons as co-defendants the the plaintiff simply wants to have its claim or relief already set out in the plaint, to be extended even against the partners and the distributor of the defendant firm, and this can, by no stretch of imagination, be called setting up of a new case.

(7) Order 1 Rule 10, sub-rule (5) of Civil Procedure Code . provides as follows :-

"10(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."

(8) Section 22 of the Limitation Act, 1908 provided that where a new plaintiff or defendant was added or substituted, the suit would, as regards him, be deemed to have been instituted when he was so made a party, meaning thereby that in cases governed by that Act when a new plaintiff was substituted for the plaintiff on record after the period of limitation prescribed for that suit, it must be dismissed and if on the addition of a new defendant the suit was barred against him, the suit would be dismissed as against him and this was so whether the addition or substitution was under sub-rule (1) or sub-rule (2) of Order I Rule 10 of the Code of Civil Procedure. Now section 21 of the Limitation Act, 1963 has taken the place of section 22 of the Limitation Act, 1908. The present section 21 is a verbatim reproduction of section 22 of the Limitation Act, 1908, except that a proviso has been added to sub-section (1) which engrafts an exception on the said sub-section, and the effect of this change is that the court may, when the omission to include a plaintiff or defendant is due to mistake made in good faith, direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Section 21 of the Limitation Act, 1963 is reproduced below :-

"21. Effect of substituting or adding new plaintiff or defendant-(1) Where after the institution of a suit. a new plaintiff or defendant is substituted or added, the suit shall, as regards him be deemed to have been instituted when he was so made a party :

Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.

(2)XX Xx Xx Xx "

(9) It was contended by the learned counsel for the defendant that the suit was governed by Article 88 of the Limitation Act, 1963 which provided a period of three years from the date of infringement for bringing a suit for compensation for infringing copy right or any other exclusive privilege, and that the suit would now be barred by limitation if the partners and the distributor of the defendant-firm are now allowed to be added as co-defendants.

(10) SUB-RULE (2) of Order 1 Rule 10 of the Code of Civil Procedure provides for the addition or (i) necessary parties and (ii) proper parties. Necessary parties being parties who ought to be joined and without joining whom no decree at all can be passed but proper parties being those whose presence enables the court to adjudicate more effectually and completely the suit. In adding necessary parties, section 21 of Limitation Act, 1963 has to be taken into account, but in adding proper parties against whom no relief is sought, the provisions of this section do not apply (vide Mahadulal v. Chiranji Lal, . It has been held in Devidas & Ors. v. Shailappa & ors, as follows :--

"......FAILURE to join a person, who is a proper party but not a necessary party' does not affect the maintainability of the suit nor does it invite the application of section 22 of the Limitation Act. The rule that a person, who ought to have been joined as a plaintiff to the suit and is not made a party will entail dismissal of the suit, if the suit, as regards him, be barred by limitation when he is joined, has no application to non-joinder of proper parties...... If fresh parties are merely joined for the purpose of safeguarding the rights subsisting as between them and others claiming generally in the same interest, the determination of the date of the institution of the suit as regards such freshly joined parties does not ordinarily affect the right of the original plaintiff to continue the suit and will not attract the application of the general provisions of the Limitation Act."

(11) Where the added party is already constructively a party to the suit, as in the case of representative suits, it is really not a case of adding or substituting new parties and section 21 Limitation Act, 1963 does not apply in such a case. Instances of this principle are supplied by the authorities reported as Chetan Singh & anr v. Sartaj Singh & am, 1924 Allahabad 908(1) (D.B); Kishen Parshad and others v. Har Narain Singh and others, 38 Indian Appeals 45, and Mandhgouda Babaji Patil and others v. Halappa Halappa Patil Air 1934 Bombay 178. In the first of these cases all the adult members of a Joint Hindu Family were defendants, and addition of minor members of the Joint Hindu Family as co-defendants was sought and it was held that their addition after the expiry of the limitation, did not justify dismissal of the suit because the adult members of the Joint Hindu Family who were already there as defendants, were acting as Managers on behalf of themselves and all the minor members, though it was not formally so stated in the plaint. In the second case the Privy Council held that the first three plaintiffs, who as managing members of a Mitakshara Joint Hindu Family had concluded with the defendants the loan transactions the subject of the suit and bad agreed with them that the balance appearing was correct, due and payable, were competent to sue without joining the other members of the joint family as co-plaintiffs, and accordingly, joinder of the said co-plaintiffs after the statutory period had expired, being unnecessary, did not prevent the suit as originally constituted from being in time. In the third case, the defendant objected to the plaint on the ground of non-joinder of the other two brothers of the plaintiff, and alleged that the three constituted an Undivided Hindu Family and that, as a consequence, the suit as framed was not maintainable, whereupon the plaintiff filed an application for amendment of the plaint and prayed that he should be described in the plaint as the Manager of the Joint family consisting of himself and his minor brothers, and the defendant objected to the amendment asserting inter alia that it would be addition of parties after the period new of limitation for the suit was over. It was held that the Manager of a Joint Hindu Family may sue or be sued as representing the family in respect of a transaction entered into by him as Manager of the family or in respect of joint family properties. It was further held that such an amendment would not attract the operation of section 22 Limitation Act, 1908. The under-lying reason for these authorities is that the parties sought to be added later were constructively parties to the suit for which reason their subsequent addition was not an addition of any new parties within section 22 of the Limitation Act, 1908 (section 21 of the Limitation Act, 1963).

(12) Keeping in view this principle it can also be said that the partners of the defendant firm were constructively parties as defendants in the suit, inasmuch as defendant firm fully represented them and so the addition of the partners even at this stage is not an addition of any new parties within section 21 of the Limitation Act, 1963 and the suit is not barred by their being added as co-defendants under that provision of law.

(13) As regards the adding of M/s. Sher-e-Punjab as a co-defendant, it would be seen that the plaint seeks injunction not only against the defendant firm but also against its servants and agents from using the infringing trade mark 'RED STAR' and the infringing device of a 'Star'. M/s. Shere-e-Punjab, proprietor of which is Suhinder Singh, is alleged to be the distributor of the defendant firm for the products of the defendant firm. The allegation of infringement of the trade mark and the device of the plaintiff is made against M/s. Sher-e-Punjab only in its capacity as the distributor of defendant firm and not in its any capacity independent of the defendant firm and thus, adding M/s. Sher-e-Punjab as a co-defendant and seeking injunction against it is hardly different from the seeking of injunction against the servants and agents of the defendant firm which is already sought in the plaint and in this view of the matter the addition of M/s. Sher-e-Punjab as a co-defendant would not be an addition of any new party within the mischief of section 21 of the Limitation Act, 1963.

(14) In view of the aforesaid discussion, the addition of the partners of the defendant firm as also of its distributor M/s. Sher-e Punjab as codefendants would not make the suit barred by limitation against them and this objection of the learned counsel for the defendant fails.

(15) Consequently, in view of what has been stated above, the application for amendment is allowed subject, however, to payment of costs in the sum of Rs. 200.00.