Delhi High Court
Mohd Anesur Rahaman vs Mosarraf Hossain And Ors on 25 September, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 21st September, 2017
Pronounced on: 25th September, 2017
+ CS(COMM) 1418/2016
MOHD ANESUR RAHAMAN ..... Plaintiff
Through : Mr.Ajay Amitabh Suman,
Mr.Pankaj Kumar, Mr.Kapil Giri
and Mr.Vijay Shukla, Advocates.
versus
MOSARRAF HOSSAIN AND ORS ..... Defendants
Through : Mr.Devesh Kr Malan and Ms.Usha
Mahant, Advocates.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
IA No.843/2017
1. This application under Order 6 Rule 17 CPC is moved for
amendment in the plaint. The learned counsel for plaintiff/ applicant
alleges when the suit was filed, the plaintiff had applied for the
registration of the trademark / label ANDAZ BIRI NO.205 LABEL/
ANDAZ BIRI in relation to adverting, distribution, marketing, wholesale
and retail services relating to Bidi falling in class No.35 of the IVth
Schedule attached to the Trademarks Act, 1999.
2. However during the pendency of this suit, the ANDAZ BIRI
NO.205 LABEL has been registered by the Trade Mark Registry on
04.07.2016 and the copy of the registration certificate is annexed. Since,
now the registration has been effected the plaintiff intends to pursue
against the defendant for infringement of the plaintiff's registered
trademark/ ANDAZ BIRI NO.205 LABEL in relation to the alleged
impugned activity of the defendant already pleaded in the plaint. Hence,
the plaintiff intends to add para No.5A in the plaint just after para No.5
and also intends to incorporate sub para (iv) to para No.28A qua the relief
of infringement of the registered trademark ANDAZ BIRI NO.205
LABEL No.2144329 in class No.35.
3. Further, he intends to add sub para (c) to para No.22 in the heading
of infringement of copyright to be amended as infringement of trademark
and copyright and sub para (c) in para No.22 to be read as "Infringement
of Plaintiff's trademark ANDAZ BIRI NO.205 LABEL registered under
No.2144329 in class 35."
4. The learned counsel for the defendants, though has filed reply, but
did not seriously challenge the amendment. Even otherwise, the facts
necessitated amendment are effectuated by the subsequent events and
hence there is no impediment as to why it should not be allowed since is
necessary to resolve the controversy involved.
5. This Court in Usha International & Another vs. Usha Television
Limited 2002 (25) PTC 184 (Del) (DB) has held as under:-
"15. The rule of amendment of pleadings has to
be governed on the basic rule of justice, equity and
goods conscience. When this principle is applied,
the amendment as prayed has to be allowed. We
are satisfied that the alternative plea that is sought
to be raised by the appellant in the amendment
application is only by way of expatiating his rights
which he has secured by a statute. Apart from this,
the main consideration for allowing the
application is to avoid multiplicity of proceedings
which means saving of precious judicial time and
saving of avoidable expenses for the litigants."
6. In view of above, the application of plaintiff is allowed. The
amended plaint is taken on the record. No order as to cost.
CS(COMM) 1418/2016
7. Let defendants file the written statements to the amended plaint, if
any, within four weeks from today with an advance copy thereof to the
learned counsel for the plaintiff. Replication thereto, if any, be also filed
within two weeks thereafter.
8. List for completion of the pleadings, admission/denial of the
documents before the Joint Registrar on 14.02.2018.
9. Only upon completion of pleadings matter be listed in Court.
YOGESH KHANNA, J
SEPTEMBER 25, 2017
M
