Arihant Tea Company vs Jayshree Tea & Industries Ltd.
2009 Latest Caselaw 1597 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       Date of Decision: April, 22,2009

+       CM(M) 903/2008 & CM 10911/2008


       ARIHANT TEA COMPANY                  ..... Petitioner
                     Through: Mr. Ajay Amitabh Suman, Adv.

                       versus


       JAYSHREE TEA & INDUSTRIES LTD              ..... Respondent
                     Through: Mr. Nitin Gupta, Advocate

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.


                                JUDGMENT

MANMOHAN, J : (Oral)

1. Present petition has been filed under Article 227 of the

Constitution of India challenging the order dated 4th June, 2008

whereby Additional District Judge dismissed petitioner/plaintiff's

application filed under Order 6 Rule 17 CPC.

2. Learned counsel for petitioner states that in view of coming into

force of new Trade Marks Act, 1999 with effect from 2003, petitioner

had applied for registration of its mark under class 35 in the category

of services. In July, 2007 petitioner/plaintiff received a new certificate

of registration under class 35 and consequently, in November, 2007 it

filed an application under Order 6 Rule 17 CPC for adding relief of

infringement in an already pending passing off suit. He submitted that

by way of the amendment application, petitioner/plaintiff wanted to

bring on record the said subsequent event and at this stage, trial court

could not have gone into merits or demerits of the proposed

amendment - as it did.

CM(M) 903/2008 page 1 of 3

3. Learned counsel for respondent/defendant, however, submitted

that if the amendment were to be allowed, it would amount to

introducing a new cause of action. In this context, he relied upon a

judgment of Hon'ble Supreme Court in the case of Alka Puri

Cooperative Housing Society Ltd. v. Jayantibhai (deceased) Thr.

LRs. reported in I (2009) SLT 692. He further stated that though

petitioner/plaintiff claims to have filed its application for registration in

the year 2004, it did not bring this fact to the knowledge of the trial

court till November, 2007. He lastly submitted that as trial had already

commenced in the matter, present amendment application should not

be allowed.

4. It is well-settled that Order 6 Rule 17 CPC gives power to the

Court to allow such amendments which are necessary for the purpose

of determining the real question in controversy between the parties. In

the present case, petitioner/plaintiff is claiming protection of its mark

and by virtue of the amendment application, petitioner/plaintiff only

wants to bring on record subsequent event that its mark has been

registered under class 35 of new Trade Marks Act, 1999. In my

opinion, the amendment sought for is necessary for adjudication of the

matter in controversy between the parties. The proposed amendment

would also prevent multiplicity of litigation between the same parties.

Moreover, the aforesaid judgment of Hon'ble Supreme Court cited by

respondent/defendant is inapplicable as I am of the view that by way of

proposed amendment, there will be no change in the fundamental/basic

character of the suit which is primarily aimed at protecting

petitioner/plaintiff's mark 'Birla Tea'.

5. As far as respondent/defendant's submission that petitioner

should have earlier brought to the notice of trial court that it had

CM(M) 903/2008 page 2 of 3 applied for registration under class 35, I am of the view that there is a

separate statutory procedure provided for registration of a mark.

Under the said procedure there is no requirement or obligation on the

part of petitioner/plaintiff to bring the fact of it having applied for

registration to the notice or knowledge of trial court. In any event, it is

pertinent to mention that before a registration certificate is issued,

statutory procedure provides for an advertisement in a trade mark

journal. Therefore, I am of the view that this objection is meaningless.

6. Respondent's other objection that amendment cannot be allowed

at this stage as trial has commenced is untenable in law, as I am of the

view that after the 2002 amendment of CPC, court has power to allow

amendment after trial has commenced if the court comes to the

conclusion that in spite of due diligence a party could not have raised

the matter before commencement of trial. Since in the present case,

petitioner/plaintiff has applied for amendment within four months of it

having received a registration certificate, I am of the view that there is

no delay in filing amendment application and consequently, this

objection of respondent/defendant is misconceived.

7. Consequently, in view of the aforesaid discussion, present

petition is allowed and petitioner/plaintiff is directed to file an amended

plaint within a period of four weeks from today. Trial court will permit

defendant/respondent herein to file an amended written statement

within a further period of six weeks. With the aforesaid observations,

present petition and pending application stand disposed of.

                                                       MANMOHAN,J
APRIL 22, 2009
NG




CM(M) 903/2008                                                page 3 of 3