Baldev Singh vs Godran Rubber Plastic Industries
1999 Latest Caselaw 385 Del

JUDGMENT

Dalveer Bhandari, J.

1. This application has been moved under Order 6, Rule 17 read with Section 151 CPC. In the application it is averred that the plaintiff adopted and conceived the design of footwear popularly known as Article No. 002 in the year 1989 and has been continuously using the same since then upto the present time. The plaintiff is thus keen to amend by incorporating the aforesaid, his date of adoption and user, exclusive rights, his sale figures. The plaintiff moved the following amendment to be carried out in the plaint:

"4.A. The plaintiff has exclusive rights to manufacture and sell the said article of footwear having the design, shape and surface pattern and distinctive features involved in the said design of footwear and the plaintiff also enjoys copyright in the said design on account of its prior adoption, senior and continuous user thereof since 1989. The plaintiff is also the proprietor of the said design on account of its prior and senior adoption and continuous user since 1989 till date. The sale figures of the plaintiffs are incorporated as per ANNEXURE- C-l."

2. It is mentioned that documents from 1989 were only found recently after a massive man-hunt was launched. It is for this that the said user was not claimed, just in case the plaintiff was unable to substantiate his claims. The plaintiff had even not specifically incorporated his user in the plaint.

3. Reply to this application has been filed by the defendant. The defendant has taken a preliminary objection that this application is not maintainable inasmuch as the amendment sought by the plaintiff is not necessary for the purpose of determining the real questions in controversy between the parties. It is also mentioned that the plaintiff is attempting to alter the initial cause of action on which the suit was originally filed and further to introduce a new and inconsistent cause of action which amounts to materially altering the case of the plaintiff to the prejudice of the defendant This application is liable to be dismissed on the ground that the said application intends to remove an admission made by the plaintiff in his replication.

4. It is mentioned that the plaintiff has primarily filed the present suit for the infringement of his Registered Design No. 167995 which is registered on 25.8.1994 in respect of the plaintiff's footwear known as Article No. 002. The very title of the plaint supports the said contentions of the defendant. It is also mentioned that a plain and simple reading of the plaint clearly establishes that the plaintiff is only relying on its registration which the plaintiff contends is validly registered under the provisions of the Design Act,1911 and therefore, by necessary implication the plaintiff is claiming to have propounded and originated footwear bearing Design No. 167995 on or about 25.8.1994. That further, in the replication filed by the plaintiff which was duly verified by the plaintiff it has been categorically stated in para 6 that the "Plaintiff denies that he himself sold and offered for sale his footwear bearing Article No. 002 prior to the date of his registration". The plaintiff again in reply to the cancellation petition bearing No. C.O. 2 of 1998 filed by the defendant against the grant of registration of the plaintiff's registered design bearing No. 167995 dated 25.8.1994 has stated in unambiguous terms in para 5 of the preliminary objections and in para 4 to the Reply on Merits and further in paras A, E, F, I & K of the Reply to Grounds that the plaintiff has not sold any goods bearing Article No, 002 bearing the impugned design prior to the 25th day of August, 1994. The written statement has been duly verified by Shri Baldev Singh sole proprietor of the plaintiff firm.

5. It is also mentioned in the reply that this has been the consistent stand of the plaintiff and he cannot now be permitted to amend the plaint by taking a contrary stand thereto. It is also mentioned that this amendment is mala fide. It is also mentioned that the statement of the plaintiff contained therein that initially the plaintiff firm was a partnership firm and only on its dissolution the present plaintiff became the sole proprietor and for this reason documents from the year 1989 were not found earlier is nothing but an afterthought.

6. Learned Counsel for the defendant submitted that neither in the plaint nor in the replication and even now in this application the plaintiff has deliberately suppressed before this Court as to when Shri Baldev Singh became the sole proprietor of the plaintiff firm, despite the defendant having taken such objection at the first instance in his written statement to the signing and filing of the suit by Shri Baldev Singh when the annexed registration certificate showed the names of two other persons as partners of Shri Baldev Singh. It is mentioned that the plaintiff has no respect for the truth and law and is deliberately and with full knowledge of the consequences thereof, signing and verifying false pleadings and affidavits and making false affidavits and contrary statements with impunity.

7. Learned Counsel for the plaintiff submitted that the Court should be liberal in permitting amendments and he cited several Judgments, but there is no need to reproduce those judgments here because there is no quarrel with the proposition that the Court should be liberal in permitting amendments to the plaint. Even the learned Counsel for the defendant is not disputing this proposition. He only submitted that any amendment which is not bona fide or which changes the basic character of the suit can not be permitted by the Court. He placed reliance on the Full Bench of the Madras High Court in Kumaraswami Gounder and Ors. v. D.R. Nanjappa Gounder (dead) and Ors., . The Court held that "when the amendment sought for sets up a totally different cause of action which ex facie cannot stand on a line with the original pleading, Courts cannot allow such application for amendment. A pleading could only be amended if it is to substantiate, elucidate and expand the pre-existing facts already contained in the original pleadings; but under the guise of an amendment a new cause and a case cannot be substituted and the Courts cannot be asked to adjudicate the alternative case instead of the original case. Though it is expedient under certain circumstances to take into consideration the supervening facts in the course of a litigation which is long drawn, yet the march and lapse of such time alone cannot be the foundation to mechanically accept the request for amendment because due to such passage of time, several events have happened and several matters have intervened. It would be hazardous to accept such an application for amendment to a plaint on the only ground of passage of time and change of circumstances. This is more so when the application for amendment is an afterthought and, therefore, lacks bona fides."

8. Mr. Sahni also placed reliance on a Division Bench Judgment of this Court in Mahinder Singh v. Iqbal Kaur, 1995 Rajdhani Law Reporter 469. In this case the Court observed that "a party is not entitled to amend written statement if it introduces inconsistent plea and seeks to withdraw admission. The basis for seeking amendment must inspire confidence and justification for same must be credible". Further while relying on Supreme Court's Judgment in Panchdeo Narain v. Km. Jyoti, , the Court observed that withdrawal of an admission can be permitted by an amendment, provided it can be satisfactorily explained as being the result of an inadvertant error or omission.

9. It may be pertinent to mention that in a recent Judgment of the Supreme Court in Heeralal v. Kalyan Mal and Ors., . In this Judgment their Lordships of the Supreme Court relied on a decision of a Bench of three learned Judges of the Supreme Court in Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram & Co., . In that case Ray, C.J., speaking for the Bench considered the question whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea which contained an admission in favour of the plaintiff. It was held that such an inconsistent plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed. If such amendments are allowed in the written statement the plaintiff would be irretrievably prejudiced by being denied the opportunity of extracting the admissions from the defendants.

10. I am of the considered view that the ratio of the aforesaid case applies to the facts of the case in hand. In case the amendment is now permitted, it would be contrary to and inconsistent with the averments in the plaint and the replication. This application for amendment is not bona fide. Therefore, the application deserves to be dismissed with costs, which is quantified as Rs. 5,000/-. I order accordingly.