Friends Colour Images Pvt. Ltd vs Friends Photo Copy Centre & Ors.
2010 Latest Caselaw 2676 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CS(OS) No.1273/2002

                                            Date of Decision : 20.05.2010

Friends Colour Images Pvt. Ltd.                          ......Plaintiff
                         Through:                  Mr. Saurabh Srivastava,
                                                   Advocate.

                                         Versus

Friends Photo Copy Centre & Ors.                          ...... Defendants
                         Through:                  Mr.   Sushant   Singh,
                                                   Advocate.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?
2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be reported
       in the Digest ?

V.K. SHALI, J. (Oral)

I.A. No. 6833/2010

1. This is an application filed by the plaintiff under Order VI

Rule 17 read with section 151 for amendment of the plaint.

2. Briefly stated the facts of the case are that the plaintiff has

filed the present suit for permanent injunction for

restraining the defendants from passing off its goods as

that of the plaintiff and rendition of accounts of profits etc.

It is alleged in the plaint that the plaintiff is the proprietor

of the trade mark „Friends‟ in respect of book-binding

material, stationary, printed matter, office requisites other

than furniture, photocopying laser digital printing, graphic

designing, engineering drawings, colour and black and

white typesetting etc. It is alleged that the during the

pendency of the aforesaid suit the plaintiff‟s trade mark

application no. 1097119 for registration of its trade mark

„Friends‟ in Class 16 was processed for registration. This

application was submitted by a partnership firm styled as

„Friends Typewriter Company‟ with „Friends‟ as their logo

which was initially applied on 25.08.2006. During the

pendency of the application the partnership firm was

converted into private limited company and the present

plaintiff which is a private limited company took over the

entire business including all the goodwill invested in the

trade mark „Friends‟ under registration no. 1097119

conferring exclusive statutory rights on the plaintiff which

further substantiates the plaintiff‟s proprietorship of the

trade mark.

3. Thus on the basis of the aforesaid facts it is contended by

the learned counsel for the plaintiff that as the trademark

„Friends‟ was registered on 11.5.2006, therefore, he would

like to make consequential amendments in the present

plaint including prayer clause so as to seek a restraint

order against the defendant for the infringement action

also. The details of the paragraphs which were sought to

be incorporated are mentioned in the application and the

amended plaint which is also filed along with the

application.

4. I have heard the learned counsel for the plaintiff. He has

relied upon two authorities in support of his application

seeking amendment. The first is a case titled Usha

International and Anr. Vs. Usha Television Limited 2002

(25) PTC 184 (Del) where the Division Bench of this Court

had permitted amendment with a view to avoid multiplicity

of cases. The learned counsel has also relied upon in a

case titled Sarbjyot Kaur Saluja & Ors. Vs. Rajender

Singh Saluja 148 (2008) DLT 650 of a Single Bench

Judgment of this Court wherein it was observed that mere

delay is not a ground for refusing a prayer for amendment.

5. I have carefully considered the submissions made by the

learned counsel for the plaintiff. At the outset, it is stated

that so far as the judgment in Usha International (Supra)

is concerned the same was passed on 19.03.2002 and the

order for amendment in that case was passed by the

learned Single Judge on 23.11.1995 much before the Order

VI Rule 17 CPC was amended. After 01.07.2002 Order VI

Rule 17 CPC has been amended and the same reads as as

under:

"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."

6. A perusal of the aforesaid provision clearly shows that

amendment of the pleadings can be allowed at any stage of

the proceedings and on such terms and conditions as may

be considered just and reasonable. However, the proviso to

Order VI Rule 17 CPC specifically lays down that when the

trial has such application cannot be allowed unless the

Court comes to the conclusion that in spite of due diligence

the party could not have raised a matter before the

commencement of the trial.

7. A perusal of the aforesaid provision thus clearly shows that

so far as the Division Bench judgment in Usha

International (Supra) is concerned that was passed before

the amendment to Order VI Rule 17 and therefore, it is

distinguishable from the facts of the present case. In the

instant case, the issues were framed on 05.04.2005 and

the affidavit by way of evidence was filed by the plaintiff on

19.08.2005, and therefore, it can well be concluded that

the trial in the instant case has already started. The

plaintiff of his own has admitted in the application that the

application for registration of the trade mark was allowed

on 11.05.2006. There is not even an iota of averment in

the application that the aforesaid fact could have been

brought on record by the plaintiff despite the trial having

commenced despite due diligence. It is in this context that

the delay in filing the application for amendment after a

lapse of almost five years is fatal to the case of the plaintiff

in allowing the application. The judgment which has been

relied upon by the learned counsel for the plaintiff in case

titled Sarbjyot Kaur Saluja (Supra) does contain

observations that mere delay is not a ground for refusing

the prayer. But these observations were passed by the

learned Single Judge in a case pertaining to domestic

violence Act and thus the facts of the said case are

distinguishable from the facts of the present case on that

score.

8. For the reasons mentioned above, I am of the considered

opinion that since the trial has begun and there is no

averment made in the application that despite due diligence

the aforesaid fact of registration of trade mark could not be

brought on record, the amendment application of the

plaintiff is highly belated and misconceived accordingly the

same is dismissed.

CS(OS)No. 1273/2002

List on 30.07.2010 before the learned Joint Registrar.

V.K. SHALI, J.

MAY 20, 2010 KP