Madras High Court
T.T.K. Pharma Limited, 6, Cathedral ... vs Ag. Robapharam, St. Alben Rheinweg, 174 ... on 1 September, 1997
Equivalent citations: 1998(2)CTC108
Author: Shivaraj Patil
Bench: Shivaraj Patil
ORDER Judgement Pronounced by R.R. Jain, J.
1. The respondent/plaintiff claims to be the proprietor of a registered trade mark "Ossopan" in Class 5. It is alleged that the appellant/defendant also started selling goods under the same trade mark by infringing the registered trade mark, hence the respondent filed a suit for injunction against the appellant/defendant essentially under section 29 of the Trade and Merchandise Marks Act, 1958. In the plaint, the plaintiff has referred to the Use Certificate, Trade Mark Registration Number, Date, Publication in the journal as well as the items covered under the said trade mark.
2. It is alleged that the suit was filed on the basis of journal entry, consequently, the description of specified goods as specified therein was incorporated in paragraph 27(a) of the plaint. However, later on during pendency of the suit, the respondent came to know that the correct description of specified items referred to in the registration certificate itself is some what different then the journal entries. Therefore, realising the mistake, apparent on the face of record, the respondent filed an application for amendment under Order 6 Rule 17 for substituting paragraph 27(a) so as to be in consistant with the use certificate, which has been relied upon. The application was resisted by the appellant/defendant on several grounds. However, the learned Judge, appreciating rival contentions, and in light of law laid down by the Apex Court as sell as other High Courts in relation to the scope of Order 6, Rule 17, Civil Procedure Code, allowed the amendment vide his order dated 24.6.1997. While allowing the application, the learned Judge also directed the respondent/plaintiff to pay a sum of Rs.10,000 as cost of the appellant/defendant. Aggrieved by this order, allowing the respondent's amendment application, the appellant defendant has preferred this appeal.
3. On facts, the learned Judge has categorcially observed that the amendment was necessitated on account of bona fide mistake and was necessary to afford an opportunity to have the mistake rectified. As regards bona fide mistake, averments are made in para 10 of the affidavit filed in support of amendment application. This is a matter of official record and the event occurred only after publication in Trade Mark Journal. This mistake was obvious as the suit was filed relying upon description in the Journal. We also feel that it was a bona fide mistake. The learned Judge has also held that such an amendment neither changes the nature of suit nor adversely affects the right purported to have been accrued in favour of the appellant, or that the appellant/defendant is prejudiced in any way. In our view, this unimpeachable observation by the learned Judge is absolutely in consonance with the principles laid down by the Apex Court, to be borne in mind, while dealing with a question of amendment of pleadings. Even the learned counsel for the appellant has also conceded that as regards the principles laid down by the Apex Court and other High Courts governing scope of Order 6, Rule 17 C.P.C. The learned Judge, in his well considered order, has dealt with all the aspects. On a partinent question asked by the Court to the learned counsel for the appellant about the prejudice to be caused, no satisfactory explanation cameforth.
4. However, the only contention raised by the learned counsel for the appellant is that there shall be different yards ticks while dealing with a question of amendment of pleadings in cases of matters arising under special enactments namely Trade Mark and Patent Act, unlike in case of ordinary civil proceedings. We are unable to convince ourselves with the submissions advanced by the learned counsel for the appellant. Even no provision of law is also cited to show that in case of matters arising under Trade Mark and Patent Act, the question of amendment of pleadings shall be dealt with by a different yardstick unlike to be applied in case of other civil proceedings. We have no hesitation in saying that though the rights recognised under the special enactment are agitated, but the procedure is governed by the Civil Procedure Code. As evident from the record, the plaint is instituted under Order 7, Rule 1 of C.P.C. and the application of amendment is also filed under Order 6, Rule 17 of C.P.C. Under these circumstances, in our opinion, question of the amendment of pleadings, may be in matters arising under special enactment, has to be strictly dealt with in accordance with the provisions of Order 6, Rule 17.
5. As a cardinal rule, ordinarily, amendment of pleadings is permissible at any stage of the proceedings provided it does not (i) change the nature; (ii) takes away any right accrued in favour of opposite party; or (iii) causes substantial prejudice. In this case, the learned Judge, on the facts of this case, has come to conclusion that the proposed amendment neither results into change in the nature of suit, and or causes any substantial prejudice to the appellant/defendant.
6. As an alternative argument, it is also argued on behalf of the appellant that by the proposed amendment, the entire cause of action is changed. Consequently, if there is any apprehension about failure of suit as the infringement is always linked with the specified goods and the specified goods now sought to be included vide proposed amendment are different then the originally stated, on technical grounds, then, the respondent/plaintiff could have withdrawn the same with liberty to file fresh suit on the same or similar cause of action, instead of going for amendment of plaint. In our view, this is question to be considered on merits and shall hot crop up for consideration while dealing with application under Order 6, Rule 17 of C.P.C. As a fundamental rule, multiplicity of litigation based on same cause of action is deprecated and discouraged. If a defect can be cured by amendment, we do not think it fit and proper to drag the parties to a fresh round of litigation entailing waste of time, money and energy and burden upon the institution.
7. We are satisfied about the appreciation of facts and the reasons adopted by the learned Single Judge while passing the impugned order. In absence of any legal infirmity or illegality we are unable to interfere. Hence, we do not find any substance. In the result, the appellant fails and the appeal is rejected at the admission stage itself, with no order as to costs. Consequently, C.M.P.No.10109 of 1997 is also dismissed.