Delhi High Court
M/S Cavalier Coaching & Security vs Maj. V.Ravindran (Retd.) State on 21 December, 2010
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) NO.1111/2007
Date of Decision : 21.12.2010
M/s Cavalier Coaching & Security ......Plaintiff
Through: Nemo
Versus
Maj. V.Ravindran (Retd.) STATE ...... Defendant
Through: Mr. Jogy Scaria, Advocate
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? YES
2. To be referred to the Reporter or not ? NO
3. Whether the judgment should be reported
in the Digest ? NO
V.K. SHALI, J.
IA No. 13156/2010
1. This order shall dispose of IA bearing no. 13156/2010 under
Order VI Rule 17 read with section 151 CPC seeking
amendment of the written statement.
2. Briefly stated the facts of the case are that the plaintiff has
filed a suit for permanent injunction, restraining the
defendant from infringing the trade mark of the plaintiff,
restraint against passing off, damages and delivery up etc.
The case which is set up in the plaint is that the plaintiff is
the registered owner of the trademark 'The cavalier' and its
logo in relation to education and training and other activities
in the State of Jammu & Kashmir, Punjab, Himachal
Pradesh, Haryana, Rajasthan, Uttar Pradesh, Uttaranchal,
Madhya Pradesh, Maharashtra, Bihar, West Bengal,
Jharkhand, Assam, State of Delhi and other North Eastern
States. It is alleged that the defendant is infringing the said
trade mark by using the impugned trade mark and its logo
owned by the plaintiff.
3. After completion of the pleadings on 09.11.2009 issues were
framed and the parties were directed to file the list of
witnesses within 15 days and the affidavits of its witnesses
within eight weeks. The plaintiff had filed his affidavit by
way of evidence and the matter was adjourned to 29.09.2010
for the purpose of cross-examination of the witnesses.
4. It was four days prior to 29.09.2010 that the defendant filed
the present application seeking amendment in the written
statement by contending that after framing of the issues, the
defendant realized that important legal as well as the factual
pleadings have been omitted from the written statement. It
is stated that these pleas which are allegedly omitted in the
written statement by the defendants, are that the suit is
defective, not maintainable and thus, the same is liable to be
dismissed. It is alleged that the agreement dated
28.01.2006 is devoid of any consideration and the plaintiff
does not have any exclusive right to use the trade mark 'The
Cavalier' and its logo. It is alleged that the suit is bad for
non-joinder of necessary parties. Lastly, it is alleged that the
agreement dated 28.01.2006 is purported to have entered
into by the Directors of the plaintiff company in their
individual capacity with the defendant, and therefore, the
present suit which is filed by the company is not
maintainable, as there is no privity of contract between the
plaintiff and the defendant. It is contended that the various
factual and allegedly legal points if are permitted to be taken
by way of amendment in the plaint would result in dismissal
of the suit. The paragraphs which are sought to be
incorporated in the written statement incorporating these
pleas are mentioned in paras 9 to 27 and 5A to 5C of the
amendment application.
5. I have heard the learned counsel for the defendant. I did not
have the opportunity to hear the submissions from the side of
the plaintiff as they were not represented. I have perused the
record.
6. The Order VI Rule 17 CPC reads as under:
"1. [R.17. Amendment of pleadings.- The Court may
at any stage of the proceedings allow either party
to alter or amend his pleadings in such manner and
on such terms as may be just, and all such
amendments shall be made as may be necessary
for the purpose of determining the real questions in
controversy between the parties:
Provided that no application for amendment shall
be allowed after the trial has commenced, unless
the Court comes to the conclusion that in spite of
due diligence, the party could not have raised the
matter before the commencement of trial]
7. Although the law regarding amendment of pleadings is very
liberal and the Courts have been permitting amendments, but
in the year 2002 an amendment to Order VI Rule 17 CPC was
carried out, whereby it was laid down that after the
commencement of trial no amendment shall be allowed
unless and until the Court comes to the conclusion that
despite due diligence the party could not have taken the plea
in the pleadings sought to be amended. There can be no
dispute that a trial can be said to have started in case issues
have been framed and the case is fixed for evidence. In case
the case is fixed for recording of cross examination that
means we have gone a step further.
8. In the instant case, it cannot be disputed that the trial of the
case has already begun as the issues between the parties
have been struck. The case was actually fixed for recording
of the cross examination of the witness and it is at this stage
that the present application for amendment was filed. There
is not even an iota of averment in the application that the
trial has not begun or that the pleas which are sought to be
raised by the defendant regarding lack of privity of contract,
mis-joinder/non-joinder of the parties etc. could not be taken
by him despite the due diligence. In the absence of these
averments, it cannot be said that the application is satisfying
the requirements of law. Therefore, the amendment sought
by the defendant is totally unwarranted and not maintainable
in the eyes of law. The very timing of the application just a
few days before the record of cross examination gives an
impression that it is actuated only to delay the disposal of the
suit. I, accordingly, dismiss the application of the defendant.
9. List the matter before the Joint Registrar for fixing of the
dates of cross examination on 07.02.2011.
V.K. SHALI, J.
December 21, 2010
KP
