Haldiram (India) Pvt. Ltd. & Ors. vs M/S. Haldiram Bhujiawala & Anr.
2009 Latest Caselaw 1235 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CM(M) No.146/2009 & CM Nos.2769/09, 3094/09 &
      3333/09

                              Reserved on: April 02, 2009

%                         Date of Decision: April 08, 2009


HALDIRAM (INDIA) PVT. LTD. & ORS.        ..... Petitioners
                         Through:        Mr. Sandeep Sethi,
                                         Senior Advocate with
                                         Mr. Mahender Rana,Mr.
                                         Mohit Bakshi,
                                         Mr. Sindhu Sinha &
                                         Nikhil Bhalla, Advocates



                             Versus

M/S. HALDIRAM BHUJIAWALA & ANR.        ..... Respondents
                       Through: Mr. C. Mukund, Advocate
                                 with Mr. Ashok Jain,
                                 Mr. Pankaj Jain, Mr.
                                 Amit Kasera, Mr.
                                 Auneesh Garg, Mr.
                                 Shashank Sharma and
                                 Ms. Vandana Anand,
                                 Advocates




CORAM:
HON'BLE MR. JUSTICE MANMOHAN


1. Whether the Reporters of local papers may be allowed to see the
judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes




CM(M) No. 146 of 2009                                  Page 1 of 9
                           JUDGMENT

MANMOHAN, J

1. Present petition has been filed under Article 227 of

Constitution of India impugning the order of trial Court dated

21st February, 2009 to the extent that it did not permit

petitioners-plaintiffs to file an amended plaint, even though trial

Court by virtue of impugned order had allowed petitioners-

plaintiffs' application for amendment dated 20th May, 2004.

2. Mr. Sandeep Sethi, learned senior counsel for petitioners-

plaintiffs stated that on 15th November, 1995, petitioners had

moved I.A. No.12420/95 under Order 22 Rule 10 CPC for

recording assignment of subject trade mark in favour of a

company "Haldiram (India) Pvt. Ltd." and for allowing

consequential amendment in the plaint. Mr. Sethi, stated that

by order dated 27th August, 2001, trial Court allowed the said

application and directed an amended plaint to be filed. On 14th

December, 2001, petitioners-plaintiffs even filed an amended

plaint.

3. However, on 20th May, 2004, petitioners moved an

application for amendment of plaint on the ground that in the

amended plaint filed on 14th December, 2001, paragraphs 11(b)

and 15(2) were left out and paras 14 and 15 were not correctly

reproduced. According to Mr. Sethi, petitioners' steno-typist

while preparing amended plaint added the amendments allowed

by order dated 27th August, 2001 not to the existing plaint as on

that date but to an earlier plaint dated 21st January, 1992.

Therefore, by 2004 amendment application, petitioners only

sought correction of typographical errors with respect to

amendments earlier allowed and which order had become final.

Along with 2004 amendment application, a copy of amended

plaint was annexed. However, according to Mr. Sethi, the

annexed amended plaint was not signed and verified by

petitioners-plaintiffs, though it was signed by their counsel.

4. Unfortunately, the said application remained pending for

almost five years. In the meanwhile, trial Court heard and

decided respondents-defendants application for amendment and

for vacation of interim order. It was only on 10th February, 2009

that petitioners-plaintiffs moved an application under Section

151 CPC for filing an affidavit of petitioners in support of the

amended plaint as required by amendment in Civil Procedure

Code in 2002. In the said application, it was averred that

inadvertently, the said affidavit had not been filed with the

amended plaint.

5. Mr. Sethi, stated that it was only during the course of

arguments of the said applications that petitioners-plaintiffs

realized that amended plaint annexed with the amendment

application had not been signed by plaintiffs. He stated that

petitioners-plaintiffs had always believed that amended plaint

annexed with the application dated 20th May, 2004 was

complete in all respects including with respect to signatures of

petitioners-plaintiffs.

6. Mr. Sethi stated that by impugned order, petitioners-

plaintiffs' amendment application as well as its application

under Section 151 CPC permitting the petitioners to file

affidavit in support of plaint was rightly allowed. However,

petitioners-plaintiffs were aggrieved by trial Court's direction

that, "it is made clear that the plaintiffs shall not insist for filing

an amended plaint in consequence of this order."

7. Mr. Sethi, submitted that the last direction of trial Court

was liable to be set aside as it was wholly unreasoned as well as

contrary to Order 6 Rule 18 CPC which gave the party, which is

allowed to amend its pleading, a period of fourteen days to bring

the amended pleading on record. He submitted that trial Court

failed to appreciate that procedure is the handmaid of justice

and intent of all Courts is to render substantial justice. In this

connection Mr. Sethi relied upon a judgment of this Court in the

case of Asman Industries v. K.L. Juneja reported in 1998

RLR 297. He further stated that trial Court failed to appreciate

that a number of duly signed and verified plaints existed on

record and by virtue of amended plaint, petitioners-plaintiffs

had only corrected typographical errors.

8. Mr. C. Mukund, learned Counsel appearing for

respondents stated that it was never the case of petitioners-

plaintiffs that they wanted to file an amended plaint. He stated

that the consistent and repeated plea of petitioners-plaintiffs

before trial Court was that the amended plaint already stands

filed on 20th May, 2004. He pointed out that petitioners by their

application under Section 151 CPC filed on 10th February, 2009

only wanted to file an affidavit in support of amended plaint

which was allowed by trial Court. He contended that for the

first time before this Court, petitioners-plaintiffs advanced a

plea that along with amendment application filed in 2004,

petitioners-plaintiffs had only filed a draft plaint. He submitted

that this contention of petitioners-plaintiffs was contrary to trial

Court record and amounted to changing their case - which was

not permissible in law.

9. He further submitted that petitioners were not entitled to

any relief due to non-disclosure and/or incomplete reproduction

of material facts and non-filing of relevant and necessary orders

passed by trial Court in the present petition. He stated that

neither the order of Hon'ble Supreme Court of India dated 01st

October, 2008 directing disposal of present suit preferably

within six months from date of its order was highlighted nor

other orders passed by trial Court on the same date as the

impugned order dismissing other applications filed by

petitioners-plaintiffs were disclosed to this Court. He stated

that by order dated 21st February, 2009, while dismissing two

other applications filed by the petitioners under Order 7 Rule 14

CPC the trial Court had passed strictures on petitioners-

plaintiffs for delaying the suit proceedings. Mr. C. Mukund

submitted that due to dishonest and fraudulent conduct of

petitioners-plaintiffs, no relief should be given to petitioners

under Article 227 of Constitution.

10. Mr. C. Mukund, also stated that respondents had an

apprehension that in case this Court were to allow the

petitioners-plaintiffs to file an amended plaint, petitioners-

plaintiffs would use this order to further delay the proceedings

by claiming a right to file additional documents and by asking

for additional issues to be framed. He submitted that the intent

in filing the present petition was to somehow delay the disposal

of the suit filed by petitioners despite a categorical direction by

Hon'ble Supreme Court to conclude the same expeditiously.

11. In rejoinder, Mr. Mahender Rana, Advocate, for

petitioners, stated that petitioners had annexed a copy of

Hon'ble Supreme Court's order dated 01st October, 2008 and

further petitioners had averred in the present petition that their

other applications had been dismissed by trial Court on the

same date the impugned order had been passed. He further

stated that petitioners had made it clear that they would be

independently challenging the other orders. Mr. Mahender

Rana, further submitted that it was the respondents who had

suppressed and concealed facts. In this connection he drew my

attention to order passed by this Court in Anand Kumar

Deepak Kumar & Anr. v. Haldiram Bhujia Wala & Anr.

reported in 1999 V AD (Delhi) 41 wherein this Court had

observed, "otherwise it would be a deliberate attempt on his

(respondent) part to have concealed a material fact to obtain

registration in the latter's (respondent) name."

12. After having heard the parties, I am of the view that in the

present case, petitioners-plaintiffs have been remiss in not

realizing that their plaint annexed with the amendment

application dated 20th May, 2004 was neither signed nor

verified. But in my opinion, the said mistake is neither a part of

a design by petitioners-plaintiffs to delay the suit proceedings

nor is it a result of gross negligence. In fact, non-signing and

non-verification of the plaint seems to be an inadvertent mistake

or oversight on the part of petitioners-plaintiffs and their

counsel.

13. Moreover, though I find merit in the argument of

respondents that it was never the case of petitioners before trial

Court that only a draft plaint had been filed with the

amendment application, I am of the opinion that substantive

rights of a party cannot be allowed to be defeated on account of

either procedural irregularity or mistake by a party which is

curable. After all, the rules of procedure are meant to advance

cause of justice and not to thwart them.

14. Undoubtedly, Article 227 is a discretionary and an

equitable remedy. A party which suppresses facts or which

does not make a complete disclosure is not entitled any relief

from this Court. In the present case, I find that petitioners have

mentioned the relevant facts but have done them in a guarded

and passing manner. For instance, though order of Hon'ble

Supreme Court dated 01st October, 2008 was mentioned but it

was not sufficiently highlighted either in the list of dates or on

the dates when the matter was heard ex parte. Accordingly, I

am of the opinion that though disclosure has been made by

petitioners-plaintiffs but the same had not been done in a

forthright manner. Consequently, in my view, the ends of

justice would be met if petitioners are warned to be careful in

future and costs are imposed while disposing of present

petition. In any event, dismissal of petitioners' present petition

on this short ground would be imposing a disproportionate and

too harsh penalty /punishment.

15. Consequently, petitioners-plaintiffs are allowed to sign

and verify the plaint annexed with their amendment application

dated 20th May, 2004. Petitioners-plaintiffs are further allowed

to strike out para 6(a) of their plaint as undertaken by them

before this Court vide their affidavit dated 23rd March, 2009.

However, it is made clear that verification and signing of the

plaint on record would not vest any right in the petitioners-

plaintiffs for filing any additional document or for seeking

reframing of issues or for filing of fresh pleadings or

applications. However, as petitioners-plaintiffs have been

remiss in not realizing that their plaint was not signed and

verified, they are allowed to rectify their mistake subject to

payment of costs of Rs.50,000/- to Prime Minister Relief Fund.

16. With aforesaid observations, present petition is partially

allowed and pending applications are disposed of. The interim

order dated February 26, 2009 is vacated and the trial Court is

directed to expeditiously dispose of petitioners' suit as directed

by Hon'ble Supreme Court of India. The parties are directed to

appear before the trial Court on 13th April, 2009.

MANMOHAN, J April 08, 2009 js