Delhi High Court
Kanungo Media Pvt. Ltd. vs Rgv Film Factory & Ors. on 20 July, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.324/2007
% 20th July, 2015
KANUNGO MEDIA PVT. LTD. ..... Petitioner
Through: Mr. Pradyuman Gupta, Advocate.
Versus
RGV FILM FACTORY & ORS. ..... Respondents
Through: Defendants are ex parte
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
I.A. No.7687/2015 (under Order VI Rule 17 CPC)
1. By this application, the plaintiff seeks to amend the subject suit
plaint, in a suit seeking permanent injunction alleging passing off by the
defendants of the trade mark 'NISHABD'. The trade mark is used with
respect to feature films, commercial films and telefilms etc. I may note that
the subject suit is at the stage of final arguments. All the defendants are ex
parte.
CS(OS)324/2007 Page 1 of 4
2. The subject suit has been filed in the year 2007. By this
application, the plaintiff states that during the pendency of the suit, the
plaintiff has obtained registration of the trade mark and hence the suit be
converted into a suit for infringement from a suit of passing off.
3(i) Plaintiff relies upon the judgment of the learned Single Judge of
this Court in the case of Banyan Tree Holding (P) Limited Vs. Jamshyad
Sethna & Anr. 2015 (61) PTC 354 [Del]. In this judgment, various earlier
judgments are referred to, and it is held that if during the pendency of a suit
for passing off, plaintiff obtains registration of the trade mark then the suit
can be amended to include the reliefs as regards infringement of the trade
mark.
(ii) I have gone through the judgment in the case of Banyan Tree
Holding (P) Limited (supra) and it is noted that in the said judgment
amendment was allowed because in that case evidence was yet to
commence. The present suit is at the stage of final arguments, and if the
amendment is allowed, the suit would be thrown back to the year 2007. Not
only we would be thrown back to the year 2007, the defendants in the suit
will again have to be issued summons with respect to the fresh cause of
action and the fresh relief claimed of infringement inasmuch as once the
CS(OS)324/2007 Page 2 of 4
entire cause of action in the suit is amended it cannot be contended; as is
being contended on behalf of the plaintiff; that, even after amendment no
fresh summons of the suit are required to be issued to the ex parte
defendants. In law, a defendant on being ex parte does not seek to contest
the suit as it stands, however, it is not the law that if the entire cause of
action in the suit is changed, and a fresh cause of action is pleaded and new
reliefs are sought, yet after amendment, the defendant in the suit should not
be served afresh. Also, the Code of Civil Procedure, 1908 (CPC) was
amended in the year 2002 and as per the amendment of Order VI Rule 17
CPC, ordinarily after commencement of evidence, pleadings are not allowed
to be amended.
4. Counsel for the plaintiff could not dispute that right to seek
injunction for infringement of the registered trade mark is an additional or a
fresh cause of action and plaintiff would have a right to file a fresh suit on
the basis of fresh cause of action for the stated infringement by the
defendants of the registered trade mark of the plaintiff. Once that is so, there
is no reason that a suit of the year 2007 which is at the stage of final
arguments should be converted into a totally new suit merely because
plaintiff wants to avoid filing of a fresh suit on the fresh cause of action. The
CS(OS)324/2007 Page 3 of 4
plaintiff on disallowing of the amendment application suffers no prejudice as
plaintiff can always file a fresh suit on a fresh cause of action.
5. Counsel for the plaintiff has also relied upon the judgments in
the cases of Harcharan Vs. State of Haryana (1982) 3 SCC 408 and Time
Warner Entertainment Company, LP. Vs. A.K. Das & Ors. (2003) 102
DLT 794, however, there is no dispute to the proposition that amendment to
pleadings have to be liberally allowed, of course the same is however with
the caveat of amendment not being liberally allowed post 2002 amendment
of CPC and much less at the stage of final arguments on a fresh cause of
action on the basis of which relief is now sought and for which plaintiff can
as well file a fresh suit on the fresh cause of action.
6. Dismissed.
JULY 20, 2015 VALMIKI J. MEHTA, J.
Ne
