Advance Magazine Publishers Inc ... vs M/S Just Lifestyle Pvt Ltd
2011 Latest Caselaw 5546 Del

.*               HIGH COURT OF DELHI: NEW DELHI

                                            Judgment pronounced on: 18.11.2011

+             I.A. No.6309/2010 in CS (OS) No.2157/2009


ADVANCE MAGAZINE PUBLISHERS INC AND ANOTHER
                                           ..... Plaintiffs
             Through     Mr. Sandeep Sethi, Sr. Adv. with
                         Ms. Anuradha Salhotra &
                         Mr. Amritesh Mishra, Advs.
             versus


M/S JUST LIFESTYLE PVT LTD                                       ..... Defendant
                 Through                        Mr. Rajiv Nayar, Sr. Adv. with
                                                Ms. Manmeet Arora &
                                                Ms. Fareha A. Khan, Advs.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?                            Yes

3. Whether the judgment should be reported                       Yes
   in the Digest?

MANMOHAN SINGH, J.

1. By this order, I propose to decide the application being I.A.

No.6309/2010 filed by the plaintiffs under Order VI Rule 17 read with

Section 151 of the Code of Civil Procedure, 1908 for amendment of the

plaint and Order 1 Rule 10(2) CPC for impleadment of M/s. Priority

Marketing Pvt. Ltd. as defendant No.2.

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.1 of 24

2. The two plaintiffs, namely, Advance Magazine Publishers

Inc., USA and Conde Nast India Private Limited, New Delhi, have filed

the present suit for permanent injunction against the defendant M/s Just

Lifestyle Private Limited, Mumbai, inter-alia, infringement of

trademark and passing off in relation to the mark "VOGUE".

3. The suit as well as interim application was first time listed

before the Court on 13.11.2009 when the summons were issued in the

main suit and notice in the interim application being I.A.

No.14609/2009, the Court also restrained from using the registered

trademark "VOGUE" as part of its trademark "JUST IN VOGUE" or

any other deceptively similar trademark in relation to its goods and

service.

4. The said order was challenged by the defendant by filing of

an appeal being FAO (OS) No.559/2009 before the Division Bench who

stayed the operation of the impugned order dated 13.11.2009.

5. The plaintiffs thereafter filed a Special Leave Petition

against the order of the Division Bench. The Supreme Court vide order

dated 14.12.2009 set-aside both the interim orders passed by the Single

Bench and later on staying the order by the Division Bench and directed

the learned Single Judge to decide afresh the application for injunction

within six weeks and the suit itself expeditiously and preferably within

a period of four months.

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.2 of 24

6. In view of the order passed by the Supreme Court, the

defendant later on withdrew the appeal which was filed before the

Division Bench, on 23.12.2009.

7. The learned Single Judge issued a direction for filing the

reply to the interim application on behalf of the defendant as well as for

rejoinder, if any, by the plaintiffs and listed the application for hearing

on 14.01.2010.

8. Both the parties agreed that the arguments in the interim

application would, more or less, replicate those that would be made at

the time of final hearing of the suit. In view thereof, a suggestion was

made that the suit be finally disposed of and the parties were willing to

abide by the methodology recorded in the order dated 14.01.2010. In

view of the consent order, admittedly, the plaintiffs did not produced

any evidence by way of affidavit(s).

9. The court thereafter framed issues on 4.3.2010. Issue No.1

was about the territorial jurisdiction of this Court. The suit as well as

the interim application were also partly heard on the said date and also

on subsequent dates.

10. However, it appears from the order dated 18.02.2010 that the

schedule fixed by the Court in order dated 14.01.2010 was not followed

by the parties, rather the defendant filed five applications; i.e., a) I.A.

No.343/2010 under Order 1 Rule 10 CPC read with Section 151 CPC

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.3 of 24 for deletion of plaintiff No.2 from the array of the parties, b) IA

No.344/2010 under Order 7 Rule 10(1) CPC for return of plaint, c) I.A.

No.2588/2010 under Order VI Rule 16 read with Section 151 CPC, d)

I.A. No.2589/2010 under Order XI Rule 12 read with Section 151 CPC

and e) I.A. No.5440/2010 under Order 13 Rule 8 CPC for impounding

the document. Thus, the hearing on the main suit was not conducted.

11. Later on the plaintiffs also have filed two applications; one

being I.A. No.6308/2010 under Order VII Rule 14(3) CPC, and the

other being I.A. No.6309/2010 under Order VI Rule 17 CPC for

amendment of plaint readwith Order 1 Rule 10(2) CPC for

impleadment of M/s. Priority Marketing Pvt. Ltd. as defendant No.2.

The notices were issued and the matter was sent before the Joint

Registrar for completion of pleadings on 08.07.2010. The matter was

adjourned from time to time for completion of pleadings in the pending

applications and for admission/denial of the documents. Record shows

that instead of hearing of the case as directed by the Apex Court, both

the parties filed applications, therefore, hearing was postponed on one

reason or the other.

12. As decision of I.A. No.6309/2010 under Order 6 Rule 17

will have bearing on the other pending applications, therefore, both the

parties have argued the application at the first instance.

13. By virtue of this application, the plaintiffs want to amend the

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.4 of 24 paragraphs-12, 14 & 33 of the plaint and to incorporate paragraph-29A

in the plaint.

14. The following reasons have been given by the plaintiffs :

(a) That the defendant in the written statement has pleaded that

it neither carries on its business in Delhi nor effects sale of any of its

products in Delhi, therefore, no cause of action has arisen in Delhi. The

burden on this issue was put upon the defendant.

(b) That in the month of April, 2010, they learnt that the

aforesaid statement of the defendant was false to the knowledge of the

defendant and in fact, the defendant was carrying on its business,

particularly, at shop premises being No.132-A, DLF Mall, Saket, New

Delhi from where watches and other timepieces are being sold and the

plaintiffs‟ representative made a purchase from the said shop on

10.04.2010.

(c) The said shop is being operated under the name and style of

„Just Watches". An invoice was made out for the purchase made at the

said shop from where the plaintiffs‟ representative purchased a watch

on 10.04.2010 and the said watch was packed in a packet with the name

of "JUST IN VOGUE", though the visiting card was issued in the name

of "Just Watches" purporting that the said business was being carried

on by the company known as "Priority Marketing Pvt. Ltd."

(d) On the inspection, it was transpired to the plaintiffs that the

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.5 of 24 company "Just Lifestyle Pvt. Ltd." was earlier known as "Priority One

Marketing Pvt. Ltd." and further, the "Priority Marketing Pvt. Ltd." is

the holding of "Priority One Marketing Pvt. Ltd." and now known as

"Just Lifestyle". Mr. Ashok Sinker who has signed the written

statement is the authorized representative of M/s Priority Marketing

Pvt. Ltd. The said company is doing business in Delhi.

15. In view thereof, the prayer is also made by the plaintiffs in

the application that the said concern M/s Priority Marketing Pvt. Ltd. is

a necessary party to the present suit and the same be impleaded as

defendant No.2, as the defendant is carrying on its business and work

for gain in Delhi under the mark "VOGUE" through proposed

defendant No.2 also.

16. It is alleged in the application that the defendant has not

made full and complete disclosure in the written statement and the

defendant, in fact, took a false and dishonest plea that it was not

carrying on business, in order to overreach and misled the Court. It is

also stated that since the said facts have come to the knowledge of the

plaintiffs after framing of the issues, therefore, the plaintiffs have filed

the present application under Order VI Rule 17 CPC. Therefore, the

amendment as well as impleadment of defendant No.2 sought by the

plaintiffs are necessary in order to determine the real question in

controversy between the parties.

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.6 of 24

17. It is also alleged in the application that the defendant cannot

deny the fact that the defendant is carrying on business from a store at

Central Mall, Gurgaon where the said goods under the name of "JUST

IN VOGUE" are also available to the customers in Delhi through its

store.

18. The plaintiff also sought an amendment in the plaint that

plaintiff No.2 has its office in Delhi who is carrying on advertisement

sales, circulation sales and editorial activities. The exclusive distributor

of VOGUE INDIA Magazine in India is Living Media India Ltd. which

has its registered office at 9K, Connaught Circus, New Delhi and in the

calendar year, 2009, eighty thousand and eighty five copies of the

VOGUE INDIA Magazine were sold in Delhi.

It is alleged that the said averments by oversight were not

incorporated in the original plaint which are necessary to be

incorporated in the plaint. It is argued by the plaintiffs that in case the

amendment is allowed, it does not in any manner affect the nature of the

suit and no prejudice could be caused to the defendant and the

application filed by the plaintiffs is not filed with malafide intention.

There is no interim order against the defendant, no prejudice would be

caused if the same is allowed. The present case is also a case of

infringement of trademarks. The cause of action is continuous one,

therefore, there is no harm incase the subsequent events are taken on

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.7 of 24 record.

19. The amendments sought by the plaintiffs in paragraphs-

12,14 & 33 of the plaint and by adding paragraph-29A, read as under:-

"12. That the plaintiff‟s magazine published under the trademark VOGUE is sold/circulated in around 145 countries round the world, including India and Delhi. There are subscribers to the magazine who reside in Delhi. The magazine under the said trademark has been available/sold in India including Delhi since at least the last two decades and has established enormous and enviable reputation and goodwill in India, among other countries. The trademark VOGUE was first used in India in the year 1939 and India and Indians have been regularly featured in the said magazine. That the first plaintiff is internationally well-known and is the registered proprietor of the trademark VOGUE in around 145 countries including India.

14. That the second plaintiff is publishing a magazine under the trademark VOGUE INDIA in Mumbai. The second plaintiff has a branch office in Delhi at the address 1st Floor, Southern Park, Unit No.15, Plot No.D-2, DDA District Centre, Saket, New Delhi. From its office in New Delhi, the second plaintiff sells advertisements, has circulation sales and carries on editorial activities. The Associate Advertising Director, the Circulation Sales Manager, a Fashion and Internet Editor of the magazine Vogue India are stationed at the second plaintiff‟s said Delhi office. The distribution of the said magazine is done through the second plaintiff‟s exclusive/sole distributor Living Media India Ltd. which has its registered office at 9K, Connaught Circus, New Delhi-110001. Around 80,000 issues of the VOGUE INDIA magazine were sold in Delhi in the calendar year 2009.

33. That this Hon‟ble Court has jurisdiction to entertain and try the present suit for the following reasons:

 the first plaintiff through its wholly owned subsidiary

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.8 of 24 and exclusive licensee the second plaintiff is carrying on business within the jurisdiction of this Hon‟ble Court. The second plaintiff has its branch office within the jurisdiction of this Court and its magazines under the trademark VOGUE are freely available within the jurisdiction of this Hon‟ble Court.

 The defendant is servicing customers in Delhi through its store named JUST IN VOGUE in the Central Mall, Gurgaon which is a part of the National Capital Region. The cause of action has therefore arisen within the jurisdiction of this Hon‟ble Court.

 The defendant is carrying on business at DLF PLACE MALL, Saket within the jurisdiction of this Hon‟ble Court. The defendant is also using bags carrying the trademark VOGUE at its said store and the cause of action has therefore arisen within the jurisdiction of this Hon‟ble Court.

29A. That the plaintiffs learnt that the defendants were carrying on business at Delhi particularly at shop premises being No.132-A, DLF Mall, Saket, New Delhi. From the said shop watches and other timepieces are being sold. The said shop is being operated under the name and style of "Just Watches" and the said business was being carried on by company known as "Priority Marketing Pvt. Ltd." which is the holding of Priority One Marketing Pvt. Ltd. (now known as "Just Lifestyle", which is the defendant herein). A fortiori, the defendant company is "held" by the company operating the shop premises above referred at Delhi.

The defendant is also carrying on business in Gurgaon. The defendant‟s store in Gurgaon is situated in the Central Mall. A number of persons staying in Gurgaon work in Delhi and a number of persons staying in Delhi work in Gurgaon. Persons working or staying in Delhi therefore shop at the defendants Gurgaon store and the services of the defendant under the JUST IN VOGUE mark are available to customers in Delhi. The defendant is therefore carrying on business within the jurisdiction of

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.9 of 24 this Court and the cause of action has also arisen within the jurisdiction of this Hon‟ble Court.

20. The application is strongly opposed by the defendant. It is

stated by the defendant that the said application has been filed with

malafide intention in order to avoid the haring of the main suit. Since

the issues in the matter have been framed and the parties have also

argued the main suit itself from time to time before the Court with

respect to the preliminary issue of the territorial jurisdiction, therefore,

at the final stage of arguments, the filing of the present application is

not bonafide and the amendment cannot be allowed for the reasons

stated in the application. It is stated that the plaintiff could have raised

the aforesaid pleas before the commencement of final arguments, as the

details about the advertisement of the trademark "VOGUE" were

available with the plaintiffs at the time of filing of the suit. Even the

averment in respect of plaintiff No.2 was also within the knowledge of

the plaintiffs at that time when the suit was filed. Therefore, the

question of now allowing the amendments at this stage does not arise.

21. As regards the carrying on business, particularly, at the shop

premises No.132-A, DLF Mall, Saket, New Delhi is concerned, the

defendant has specifically denied that it has ever sold watches under the

name & style of "Just Watches" to any customer in Delhi from the said

shop. As regards the impleadment of new defendant is concerned, it is

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.10 of 24 stated that the present defendant does not have any subsidiary under the

name & style of Priority Marketing Pvt. Ltd. and the defendant ceases

to remain the subsidiary of the same. The plaintiffs have moved the

present application for the said purpose at the belated stage in the

proceedings for amendment to incorporate pleas which are false to the

knowledge of the plaintiffs. It is also stated that the two companies are

distinct and separate entities, therefore, the operation of the retail store

by the purported holding company, i.e. Priority Marketing Pvt. Ltd.

under the name & style of "Just Watches" cannot be deemed to be the

business being carried on in the name of subsidiary of the defendant.

However, the defendant submits that the mere factum of commonality

of names and Directors of the company does not imply that the

defendant is a subsidiary of Priority Marketing Pvt. Ltd. However, it is

admitted that the said company holds a mere 3% of the equity shares in

the defendant and does not exercise any control over the composition of

the Board of Directors of the defendant. The defendant has also

admitted that M/s Just Watches came into existence more than three

months after the institution of the present suit. The plaintiffs, in the

garb of incorporating additional new pleas by way of the present

application, have also sought to delete certain portions of the plaint

without seeking leave of this Court. The prayer is made by the

defendant to reject the application.

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.11 of 24

22. Mr. Rajiv Nayar, learned Senior counsel appearing on behalf

of the defendant has argued that in the present case, one of the main

disputes is that this Court has no territorial jurisdiction. He argues that

the question as regards the jurisdiction of a Court is required to be

determined with reference to the date on which the suit is filed and

entertained and not with reference to the future date. He submits that

the plaintiff in the present case is curing the defect of territorial

jurisdiction by filing the present application, as the plaintiff was aware

on the date of filing the amendment application that this Court has no

territorial jurisdiction and on this objection, the matter was argued from

time to time and the plaintiff was not able to satisfy the objection of

jurisdiction, therefore, now the new pleas have been raised by the

plaintiff in order to cover the said objection. He argues that the

amendment of pleadings cannot be allowed after the commencement of

trial. His further submission is that the question of jurisdiction has to

be decided on the basis of the averment made in the original plaint. In

order to overcome and by taking the advantage of the provision of

Order VI, Rule 17 CPC, no additional documents can be allowed to be

produced once the trial begins. In support of his submissions, he refers

the following decisions:-

(i) Mohanakumaran Nair vs. Vijayakumaran Nair, reported in AIR 2008 SC 213 (relevant paragraphs 6, 8, 12, 14, 16-19)

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.12 of 24

(ii) Raj Kumar Gurawara vs. S.K.Sarawgi and Company Private Limited, reported in 2008 (14) SCC 364 (relevant paragraphs 10, 12, 13, 15-17)

(iii) Chander Kanta Bansal vs. Rajinder Singh Anand, reported in 2008 (5) SCC 117 (relevant paragraphs 11-13, 15-17)

(iv) Revajeetu Builder and Developers vs. Narayanswamy and Sons and others, reported in 2009 (10) SCC 84 (relevant paragraphs 10, 12, 13, 15-17)

(v) Archie Comic Publications Inc. vs. Purple Creations Private Limited, reported in 172 (2010) DLT 234 (DB)

23. As per the case of the defendant, the trial in a suit is deemed

to have commenced when the issues are settled. The issues, in the

present case, have been framed on 04.03.2010 and, therefore, the trial is

deemed to have commenced on the same date, i.e. 04.03.2010. The

defendant had already concluded its final arguments on the issue of

territorial jurisdiction and the plaintiffs were at the stage of rejoinder

arguments. In order to overcome the serious lacunae with respect to

jurisdiction, the plaintiffs filed an application for amendment of the

plaint as late as on 11.05.2010, at a stage when rejoinder arguments

were being addressed by the plaintiffs.

24. It is further submitted that each of the amendments, as

sought to be incorporated are pertained to the plaintiffs themselves and

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.13 of 24 have been in the knowledge of the plaintiffs much prior to the

institution of the suit. There can be no manner of doubt that had the

plaintiffs exercised the diligence, the aforesaid pleas could have been

incorporated in the original plaint itself. The plaintiffs have merely

given an explanation of an "oversight and bona fide error" in the

application for amendment. Thus, the plaintiffs have not been able to

satisfy the test as laid down in the proviso to Order VI, Rule 17 CPC

and, therefore, the plaintiffs cannot be permitted to incorporate pleas

which, with due diligence by the plaintiffs, could have been

incorporated in the original plaint itself.

25. It is alleged by the defendant that the second category of

amendments which pertain to the Defendant may be divided into the

following :

(a) amendments pertaining to the Defendant carrying on

business in Gurgaon (paragraphs 29A and 33 of the

amended plaint)

(b) amendments pertaining to the operation of the shop "Just

Watches" at Saket, Delhi (paragraphs 29A and 33 of the

amended plaint)

26. It is submitted that the plaintiffs by way of an amendment

has averred that the operation of a store by the Defendant in Gurgaon

confers jurisdiction on this Hon‟ble Court as the goods sold in the

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.14 of 24 retail store at Gurgaon are available to persons though residing in

Delhi come to work in Gurgaon. The factum of the existence of the

Defendant‟s shop at Central Mall has been to the knowledge of the

plaintiff since on or about 20.11.2009, when the appeal paper book of

FAO(OS) No.559 of 2009 was received by the Plaintiffs. The

Defendant, in the said appeal, had enlisted a list of stores run by the

Defendant in India, which included the store at Gurgaon. The said list

of stores was also filed by the Defendant before this Hon‟ble Court on

12.01.2010 alongwith its reply to Order XXXIX Rule 1 and 2.

27. It is also contended that M/s. Priority Marketing Pvt. Ltd. is

not the holding company of Priority One Marketing Pvt. Ltd. It has also

been specifically pleaded by the Defendant that Priority Marketing Pvt.

Ltd. is a mere 3% shareholder in Priority One Marketing Pvt. Ltd. The

Defendant in its reply dated 24.07.2009 to the Cease and Desist Notice,

disclosed the factum of change of name from Priority One Marketing

Pvt. Ltd to M/s. Just Lifestyle Pvt. Ltd. The Defendant does not carry

on business through "Just Watches" at Delhi, it is pertinent to state that

"Just Watches" commenced operations in Delhi only on 26.02.2010.

The present suit for infringement has been instituted by the Plaintiffs

as early as on 12.11.2009 when evidently, "Just Watches" was not even

in existence.

28. The defendant has also explained about the documents filed

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.15 of 24 by the plaintiffs in support of application. It is alleged that the said

trap transaction does not mean that the Defendant carries on business in

Delhi and does not confer jurisdiction on this Hon‟ble Court for the

following reasons :

(i) The receipt with respect to the purchase of the Kenneth

Cole watches was issued by the retail store of the

Defendant at Gurgaon.

(ii) The credit of the sale of the Kenneth Cole watches

purchased by the said customer is only to the account of

the Defendant. Priority Marketing Ltd., who is the

occupant of the store at Saket has drawn no benefit from

this transaction.

(iii) „Kenneth Cole Watches‟ is admittedly, not the subject

matter of dispute in the present proceedings and therefore,

the „sale‟ of Kenneth Cole watches does not confer

jurisdiction on this Hon‟ble Court.

(iv) It has been expressly held by the Supreme Court in Dhodha

House v. S.K. Maingi reported at 2006 (9) SCC 41 that the

mere sale or availability of goods at a place would not

mean that a person carried on business at that place.

(v) Without prejudice to the submission that the Defendant

does not have any store in Delhi, assuming the store at

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.16 of 24 Saket is operated and managed by the Defendant, in view

of Section 20(a) and (c) of the Code of Civil Procedure and

the Explanation thereto in the absence of any cause of

action having arisen in Delhi, the mere fact that the

Defendant operates as store in Delhi will not confer any

jurisdiction on this Hon‟ble Court. Under Section 20(a) of

the Code of Civil Procedure a Defendant can only be sued

at the place where its registered office is situated, which in

this case is Mumbai.

29. The object for adding proviso to Order VI, Rule 17 CPC is

to curtail the delay and expedite the hearing of the case and to stall the

proceedings by filing of the frivolous application. However, it cannot

be an impediment and cannot bar in allowing the application if it

otherwise deserves on merits, otherwise, the proviso would be in direct

conflict to the expression "at any stage". The "trial" means here the

commencement of actual trial or adducing of evidence.

30. Ordinarily, a suit is tried in all its stages on the cause of

action as it existed on the date of its institution. But it is open to a

Court (including a court of appeal) to take notice of events which have

happened after the institution of the suit and afford relief to the parties

in the changed circumstances where it is shown that the relief claimed

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.17 of 24 originally has (1) by reason of subsequent change of circumstances

become inappropriate; or (2) where it is necessary to take notice of the

changed circumstances in order shorten the litigation, or (3) to do

complete justice between the parties.

31. The test to be applied while adjudicating an application

under Order VI Rule 17 of the Code has been laid down in the proviso

of the said provision in case the amendment is sought after the

commencement of trial. The proviso to Order VI Rule 17 of the Code

stipulates that no application for amendment shall be allowed after the

trial has commended, 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.

32. Despite of direction issued by the Supreme Court, it is the

defendant who have filed five applications. When the matter came up

before the Court on 14.01.2010 with the consent of the parties, it was

ordered that the suit may be finally heard rather to address the

arguments by the parties in the interim application. The parties also

agreed to rely upon the documents already filed. In the said order, the

parties have, in fact, waived trial and the matter was put up for final

arguments. Therefore, no evidence by way of affidavit has been filed

by the plaintiffs.

33. As far as the objection raised by the defendant about the

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.18 of 24 proviso of Order VI, Rule 17 CPC is concerned, I am of the considered

view that since the parties have already made a statement before the

Court not to lead the evidence in the matter and on the basis of the

pleadings the entire suit is to be decided, therefore, there is no warrant

for proposition raised by the defendant of the commencement of trial.

Hence, the decisions referred by the defendant in this regard are of no

consequence.

34. It is also a matter of fact that while disposing of the Special

Leave Petition filed by the plaintiff on 14.12.2009, the directions were

issued by the Supreme Court to decide the application for injunction

within six weeks and the suit preferably within a period of four months.

35. On 04.03.2010 the issues were framed including the issue of

territorial jurisdiction and the maintainability of the suit. The matter

was heard from time to time by the predecessor Courts. In April, 2010,

the plaintiff during the course of the arguments filed the present

application when the suggestion was made that the issue of territorial

jurisdiction be treated as preliminary issue.

36. The law of amendment of plaint is that the merit of the case

is immaterial and cannot be looked into while considering an

application for amendment.

37. It is further trite that the correctness and falsity of the

amendment cannot also be gone into at the stage of the amendment

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.19 of 24 (Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. (2006) 4

SCC 385.) Further, in Usha Devi v. Rijwan Ahmad and Ors. AIR 2008

SC 1147 it was held as follows:

"As to the submissions made on behalf of the respondents that the amendment will render the suit non- maintainable because it would not only materially change the suit property but also change the cause of action it has only to be pointed out that in order to allow the prayer for amendment the merit of the amendment is hardly a relevant consideration and it will be open to the defendants- respondents to raise their objection in regard to the amended plaint by making any corresponding amendments in their written statement."

38. In the case of Savitri Minda vs. Minda Industries, 1997

PTC 257, this Court allowed the amendment of the plaint under Order

VI Rule 17 observing that the courts should be liberal in the matter of

allowing amendment unless serious injustice or irreparable loss is

caused to the other side. The Courts exist to decide the rights of the

parties and not to punish them for the mistake they make in the conduct

of their cases.

39. In the case of Shri Saif-ul-Islam Co. L.P. v. Roshan Lal

Arora, 2003 AIHC 2966 (2968) (Del), it was held that where pleadings

are defective, amendment would be allowed. It is also settled law that

amendments to plead material facts left by oversight and which does

not cause prejudice to other side would be allowed.

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.20 of 24

40. The Supreme Court, in Revajeetu Builders and Developers

v. Narayanaswamy , (2009) 10 SCC 84, observed in para 63 as under:

"Factors to be taken into consideration while dealing with applications for amendments-

63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment-

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and,

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

41. There is no dispute about the fact that the question of

jurisdiction has to be determined on the basis of the averments made in

the plaint as originally filed and in the absence of territorial jurisdiction

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.21 of 24 to entertain the plaint, the Court has no jurisdiction to entertain the

application under Order VI, Rule 17 CPC and to allow the amendment

if it finds that on the basis of averment made in the original plaint

shows that the court has no territorial jurisdiction. The defendant has

referred the judgment in the case of Archie Comic Publications Inc.

vs. Purple Creations Private Limited, reported in 172 (2010) DLT

234 (DB). However, the facts in the present case are materially

different. In the present case, in para 33 of the original plaint, the

plaintiffs have made the specific statement that the plaintiff No.1

through plaintiff No.2 carries on its business within the jurisdiction of

this Court. The plaintiff No.2 in the present case admittedly carries on

its business in Delhi. These facts were not there in the case of Archie

Comic (supra). There is no dispute that all the objections raised by the

defendant on merit of the case as well as on the point of territorial

jurisdiction have to be determined even if the application is allowed. In

the present case, this Court has not yet determined or made its mind as

to whether the court has or has not got the territorial jurisdiction on the

basis of averment made in the original plaint or the plaintiffs have or

not have any cause of action against the defendant in Delhi. Therefore,

in view of settled law, the points raised by the defendant about the

territorial jurisdiction can not be decided while dealing the present

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.22 of 24 application. Infact the plaintiffs by virtue of the present application

want to elaborates the facts already stated and wish to bring subsequent

events happened after filing the suit on record by also adding one more

party i.e. defendant No.2 which according to them has nexus with the

main defendant. This court is of the considered view that the plaintiffs

are entitled to bring the additional facts and improve its case by way of

amendment as it is clear that the cause of action remains the same and

nature of the suit would also not be changed if the amendment is

allowed.

42. In cases like this, the Court should also take notice of

subsequent events in order to shorten the litigation, to preserve and

safeguard the rights of both parties and to subserve the ends of justice.

If the aforesaid test is applied in the instant case, the amendment sought

could not be declined. The dominant purpose of allowing the

amendment is to minimize the litigation.

43. Since it is well settled law that the approach of the Court

while dealing with the application for amendment, should be liberal and

the said provision is designed to resolve the controversy between the

parties and in order to avoid the multiplicity of the litigation.

44. As far as the validity of the documents and affidavits filed by

the plaintiffs in order to show that the defendant‟s goods are available

within the jurisdiction of this Court and the material produced in

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.23 of 24 support of that, all the said questions and objections raised by the

defendant are to be considered when the matter is heard on merits.

45. Therefore, the present application is accordingly allowed as

prayed for. M/s. Priority Marketing Pvt. Ltd. is also impleaded as

defendant No.2.

The application is disposed of.

CS (OS) No.2157/2009

46. The amended plaint be filed by the plaintiff within two

weeks from today. Summons be issued to the defendant No.2 for the

next date i.e. 15.3.2012. Written statement to the amended plaint be

filed by both the defendants on or before the next date when the

remaining pending applications of the parties and arguments in the

main suit in terms of order dated 14.01.2010 will be heard.

MANMOHAN SINGH, J NOVEMBER 18, 2011 ka

I.A. No.6309/2010 in CS (OS) No.2157/2009 Page No.24 of 24