Stp Limited vs Shalimar Tar Products P. Ltd.
2001 Latest Caselaw 1757 Del

JUDGMENT

O.P. Dwivedi, J.

1. By this order I propose to dispose of application being IA.No. 73/2001, under Order VI Rule 17 CPC filed by the plaintiff. The defendants has opposed the application.

2. I have heard learned counsel for the parties and perused the record.

3. The plaintiff has filed the suit seeking permanent injunction restraining the defendants from infringing plaintiff's registered trade mark "Shalimar Tar" and from passing off their goods as that of the plaintiff. A decree for rendition of the profit earned by the defendants by misuse of the trade mark of the plaintiff is also claimed besides a decree for delivery of all products an materials, commercial literature, stationery etc. for destruction. Para 28 of the plaint which deals with valuation of the suit for court fee reads as under:-

"The plaintiff values the Suit for the purpose of court fee and jurisdiction as under:-

(a) for infringement of plaintiff's registered trade mark, which is valued for purposes of Court fees and jurisdiction at Rs. 150/- and a Court fee of Rs. 15 is paid.

(b) for restraining the defendants from using the offending trade name under the mark Shalimar Tar Products Pvt. Ltd., the plaint is valued for the purposes of the court fee and jurisdiction at Rs. 150/- and a court fee of Rs. 15 is paid.

(c) for passing off the defendant's goods under the offending trade mark and trade name, 'Shalimar Tar' by the defendants as the goods and name of the plaintiff, the plaint is valued for the purposes of court fee and jurisdiction at Rs. 150/- and a court fee of Rs. 15/- is paid.

(d) for delivery upon affidavit to the plaintiff by the defendant of the offending goods, trade mark, labels, dies, stickers, stationeries and advertising material, bearing the offending trade mark and trade name. The plaint is valued for the purpose of court fees and jurisdiction at Rs. 150/- and court fee of Rs. 15 is paid.

(e) for rendition of accounts into the profits earned by he defendants, in relation to the sale of the offending goods, the plaint is valued for the purpose of court fees and jurisdiction at Rs. 1000/- and court fee of Rs. 150/- is paid.

4. The reliefs are valued for the purposes of jurisdiction at rs. 10,00,000/- as the plaintiff estimates that an amount shall be found due to it on rendition of the accounts by the defendants. The plaintiff undertakes to pay full court fee as and when the amount found due from the defendants.

5. The total Court fee paid is Rs. 210/- and the jurisdictional value of this suit is fixed at Rs. 10,00,000/-.

6. Now by the proposed amendments the plaintiff wants to amend para 28(e). It is contended that the relief regarding the rendition of accounts was to be valued for the purpose of court fee at Rs. 1000/- whereas for the purpose of jurisdiction it was to be valued Rs. 10,00,000/- but in the para (e) relating to the valuation of the said relief for the purpose of court fee the words "and jurisdiction" have been inadvertently added so by the proposed amendment words "and jurisdiction" are sought to be deleted from the said para. Sub para of para 28(e) separately gives the valuation of relief of rendition of accounts for the purpose of jurisdiction at Rs. 10,00,000/-. Except for the deletion of words "and jurisdiction" from para 28(e) no other amendment is sought in the plaint.

7. The amendment was opposed by the learned counsel for the defendants on the ground that para 28(e) values the relief for rendition of accounts for the purpose of court fee and jurisdiction at rs. 1000/- and this taken together with the valuation of other reliefs as given in para 28 (a) to (d) the total valuation of the suit for the purpose of court fee and jurisdiction falls below Rs. 5 lacs and therefore the suit itself falls below the pecuniary limit of this court's jurisdiction. Since the pecuniary jurisdiction on the original side of this Court begins at Rs. 5 lacs this suit is not maintainable in this court. It is, therefore, contended that since the suit itself is not friable by this Court no amendment which seek to raise the pecuniary valuation for the purpose of court fee and jurisdiction can be allowed. Learned counsel for the defendant relied upon an unreported decision of this Court in the case of Hans Raj Kalra and Ors. v. Kishan Lal Kalra, IA.NO. 2392/76 in S.No. 150/73 decided on 18th March, 1977. Inn that case the valuation of the suit as originally instituted was below the pecuniary limit of the jurisdiction of this court and the same was sought to be enhanced by filing the amendment application. The court disallowed the proposed amendment with the observations that when the suit itself cannot be tried by the Court for want of jurisdiction the question of allowing amendment does not arise. Similarly in the case of Lok Kalyan Samiti v. Jagdish Prakash Saiuni and Ors. - and in the case of Anil Goel v. Sardari Lal - , this Court had declined the prayer for amendment whereby valuation of the suit was sought to be raised to above Rs. 5 lacs so as to bring the valuation within the pecuniary limits of this Court's jurisdiction. There can be no dispute with the proposition of law that when the Court has no jurisdiction to try a particular suit for want of pecuniary jurisdiction, the amendment with a view to enhance the valuation so as to bring it within the pecuniary jurisdiction of the Court cannot be allowed. But at the same time the Court cannot ignore a specific averment regarding valuation for the purpose of court fee and jurisdiction contained in the original plaint. The valuation clause in the present case differs from the valuation clauses in the three cases referred to above. Sub para of para 28 (e) gives a separate valuation for the relief of rendition of accounts for the purpose of jurisdiction at Rs. 10 lacs. Learned counsel for the defendant vehemently contended that para 28 (e) itself gives the valuation for the purpose of court fee and jurisdiction at Rs. 1000/-. Therefore, sub para becomes redundant and superfluous. Thus according to the learned counsel for the defendant sub para of para 28 (e) which separately gives the valuation for the purpose of jurisdiction at Rs. 10 lacs need not be read. To my mind, this will be patently wrong approach to the question. For ascertaining the valuation of suit for the purpose of court fee and jurisdiction the valuation clause will have to be read as a whole. A selective reading according to the convenience of the either party may lead to wrong conclusion and even injustice. If para 28 (e) is read as a whole it become clear that the plaintiff wanted give separate valuation for the purpose of court fee and jurisdiction regarding the relief of rendition of account. The sub para contains specific assertion that this relief for the purpose of jurisdiction is valued at Rs. 10 lacs. Obviously, para 28 (e) was intended to give the valuation of the said relief for the purposes of court fee only at Rs. 1000/- but by clerical mistake the words "and jurisdiction" was typed in original para 28 (e). When there is a separate sub para giving valuation for the purpose of jurisdiction at Rs. 10 lacs, there was no occasion for using the words "and jurisdiction" in the para 28 (e) which was actually indicating the valuation for the purpose of court fee only at Rs. 1000/-. So the case in hand is distinguishable from the three cases cited by learned counsel for the defendant. In all the three cases cited by learned counsel for the defendant, the suit as initially valued did not fall within the pecuniary limits of this court's jurisdiction. therefore,e the court declined amendments to raise the valuation but that is not the case here. In the present case sub para 28 (e) of the plaint clearly gives the valuation for the purpose of jurisdiction in respect of relief of the rendition of accounts at Rs. 10 lacs which is within the pecuniary limits of jurisdiction of this Court.

8. I am, therefore, inclined to accept the explanation offered by learned counsel for the plaintiff that the word "and jurisdiction" occurring in para 28 (e) is really a typing mistake. If the said figure of Rs. 1000/- was intended to represent the valuation for the purpose of jurisdiction also then there was no need to add sub para wherein the valuation for the purpose of jurisdiction has ben specifically mentioned at Rs. 10 lacs. It, therefore, cannot be said that by the proposed amendment the plaintiff is trying the enhance the valuation for the purpose of jurisdiction to Rs. 10 lacs. The said valuation is already mentioned in sub para 28 (e) of the plaint. The proposed amendment is only for correction of a typing mistake viz. for deletion of the words "and jurisdiction" from para 28 (e). In the case of Vabakktha Gopalpillai Vasudeva Pillai v. National Small Industries Corporation Ltd., it was found that the plaintiff's lawyer omitted to value the suit for two reliefs. On the contrary he valued the suit on a non-existent and/or imaginary basis at Rs. 1050/-. The pleadings for damage and prayer for damages were already in the plaint. What was lacking is the plaintiff's assessment of the damages. It was held that this is a pure case of blunder or omission by the draftsman and not a case of lack of inherent jurisdiction of Court. Plaintiff's application for the amendment of the plaint by valuing the suit was allowed. In the case of Jai Jai Ram Manohar lal v. National Building Material Supply, Gurgaon - . Supreme Court observed that 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.

9. Having considered the request for amendment in the totality of the circumstances of the case, I think the same should be allowed as it is made in good faith. Correction of a clerical or arithmetical mistake cannot be said to be an exercise in bad faith.

10. Accordingly IA.No. 73/2001 is allowed, of course subject to payment of costs of Rs. 1000/- as it has certainly delayed the progress of the suit.

S.No. 153/2001

11. Pleadings in the suit are already complete. Let the documents be filed by the parties within four weeks.

12. Put up before Joint Registrar on 5th February, 2002 for the admission/denial of the documents.

13. Put up before the Court on 10th April, 2002 for the framing of issues and also for the disposal of pending application, if any.