Hindustan Unilever Limited vs Naresh Arora & Ors.
2013 Latest Caselaw 512 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 1190/2012

       HINDUSTAN UNILEVER LIMITED        ..... Plaintiff
                      Through Mr. Manish Dhir, Advocate
               versus

       NARESH ARORA & ORS.            ..... Defendants
                   Through            Mr. Kaartickay Mathur, Advocate for
                                      D-1 and 4.
                                      Mr. Mohan Vidhani with Mr. Rahul
                                      Vidhani, Advocates for D-2 and 5.

%                              Date of Decision: 04th February, 2013.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                            JUDGMENT

MANMOHAN, J : (Oral)

I.A. 13276/2012 IN CS(OS) 1190/2012 [U/o. 6 Rule 17 CPC]

1. According to the plaintiff, present application for amendment has been necessitated in view of the findings of the Local Commissioners in their reports.

2. In the application it has been stated that when the Local Commissioners, appointed by this Court, visited the defendants' premises, they not only seized huge quantity of infringing goods forming subject matter of the present suit, but also found various other products infringing the product containers and packaging design of the plaintiffs, namely,

Lifebuoy and Vaseline.

3. On the other hand, Mr. Mohan Vidhani, learned counsel for the defendant nos. 2 and 5 contends that the Local Commissioners have not found any infringing material with regard to Lifebuoy. He further submits that if the amendment in the present instance is allowed, it would change the entire cause of action and nature of the suit. In this connection, he refers to Colgate-Palmolive Company & Ors. Vs. Rathod & Ors., 2008 (38) PTC 276 (Del.) wherein it has been held as under:-

"18. A plain reading of the above statutory provisions would show that the infringement of each registration would give rise to a separate cause of action which has to be specifically pleaded by the plaintiff who seeks to bring an action in Court for infringement of copyright in design registered under the Designs Act, 2000. Furthermore, the plaintiff has to specifically allege as to copyright in which particular design has been infringed by the defendants. Registration of each design gives rise to a separate cause of action. I am of the considered opinion that in case the plaintiffs seek to allege violation of copyright by the defendants in respect of its earlier designs registered under Registration Nos. 176343, 176344, 176345, 180362 then the plaintiffs have to file a separate suit for the said purpose. The designs under Registration Nos. 176343, 176344, 176345, 180362 by no means can be allowed to be incorporated in the suit originally filed only in respect of one design registered under Registration No. 185480 dated 9.5.2001. The amendment, if allowed, would change the entire cause of action and would cause a serious prejudice to the defendants that cannot be compensated in terms of costs. Hence, the amendment proposed to be made in the plaint cannot be allowed."

4. A perusal of the aforesaid judgment reveals that the same has not taken into account the judgment of the Supreme Court in Rajesh Kumar Aggarwal v. K.K. Modi, (2006) 4 SCC 385 wherein it has been held as

under:-

"17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.

18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. 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. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court.

19. While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."

(emphasis supplied)

5. Consequently, the judgment of this Court in Colgate-Palmolive Company & Ors. (supra) is held to be per-incuriam.

6. Moreover, as in the present case, the amendment has been necessitated because of a report filed by the Local Commissioners in the present suit itself, this Court is of the view that the amendment should be allowed and the subsequent events should be taken into account. Further, as stated in Rajesh Kumar Aggarwal v. K.K. Modi (supra), correctness or falsity of the amendment cannot be adjudicated at this stage.

7. Also, in the opinion of this Court the amendment asked for does not change the character or nature of the suit or cause any prejudice or injustice to the defendants. Accordingly, present amendment is allowed subject to just exceptions and without prejudice to the defendants' rights to take all defences available to them in their written statements.

I.A. 13403/2012 IN CS(OS) 1190/2012[U/o. 39 Rules 1 and 2 CPC) Mr. Mohan Vidhani, learned counsel for the non-applicants prays for and is granted four weeks to file a reply-affidavit. Rejoinder, if any, be filed before the next date of hearing.

List on 25th April, 2013.

I.A. 7973/2012 IN CS(OS) 1190/2012[U/o. 39 Rules 1 and 2 CPC) Keeping in view the averments in the application as well as the Local Commissioners reports, the interim injunction order dated 30 th April, 2012 is confirmed till disposal of the present suit.

Accordingly, present application stands disposed of.

CS(OS) 1190/2012 Defendants are permitted to file amended written statements within four weeks. Replication be filed before the next date of hearing.

List before Court on 25th April, 2013.

All defendants are directed to be personally present in Court on the next date of hearing as this Court intends to record their statements under Order 10 CPC.

MANMOHAN, J FEBRUARY 04, 2013 rn