Andhra Pradesh High Court - Amravati
Abhiruchi Swagruha Foods vs M/S Vijay Traders on 25 March, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.3567 of 2019
ORDER:
This revision petition arose out of orders dated 25.09.2019 allowing the petition in I.A.No.757 of 2019 in O.S.No.517 of 2014 filed by the plaintiff under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 seeking permission to amend the plaint.
2. Heard Sri Ashok Ram Kumar, learned counsel appearing for the revision petitioner-defendant and Ms. Vallabhaneni Santhi Sree, and Sri Chalasani Ajay Kumar, learned counsels for the respondent- plaintiff.
3. The facts, briefly stated, are as follows:
The plaintiff is engaged in the business of manufacturing and marketing sweets under the trademark 'Swagruha Foods' represented in a label consisting of the artistic device of door-way and other description under the trade name, Vijaya Traders, at Vijayawada from 1990. In order to secure its protection, the plaintiff obtained its registration on 14.09.1992 under the Trade Marks Act, 1999. The plaintiff also got registered the artistic work in the trade mark label under the Copy Right Act, 1957. Due to good quality of the goods manufactured and various other reasons, the plaintiff earned good will and reputation. While so, the defendant started marketing identical goods depicting 'Abhiruchi Swagruha Foods' substantially reproducing the artistic device, which is registered both under the Trade Marks Act, 1999 and the Copy Right Act, 1957. The plaintiff lodged a criminal complaint under the relevant provisions of the aforesaid enactments 2 BSB, J C.R.P.No.3567 of 2019 read with Section 420 IPC before the Court of III Additional Chief Metropolitan Magistrate, Vijayawada. Subsequently, a suit was also filed in the year 2014. In the said suit, an application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code for grant of interim injunction was also filed, which was dismissed. The appeal filed against the said orders was pending. In the plaint in O.S.No.517 of 2014, due to inadvertence, the plaintiff mentioned only the provisions of Trade Marks Act, 1999 in the relief portion.
(b) The defendant filed I.A.No.1076 of 2014 under Order VII Rule 11 of the Code with a prayer to reject the plaint. Then, the plaintiff noticed that though all the facts relating to infringement of trademark, copyright in the artistic work in the registered trademark, label and passing off were narrated in paragraphs 10, 15(3), 18, 19(3) and the paragraphs relating to 'court fees and the reliefs', the titles of the Trade Marks Act, 1999, the Copyright Act, 1957 and the relevant provisions were not mentioned due to oversight. The said mistake is neither wilful nor wanton. Therefore, it has become necessary to amend the plaint. The amendments sought for by the plaintiff are as follows:
"I. the heading underneath the cause title in the plaint: to read as "Suit for permanent injunction and passing off action filed under Or.7 R.1 r/w sec. 21 CPC and SEcs.27, 28, 29, 134, 135 of the Trademarks Act, 1999 and Secs.55 and 62 of the Copyright Act, 1957" and for passing off actions under both the enactments. Consequently to amend:-
(i) The second line in paragraph under the heading 'cause of action' by adding the words "substantially reproducing the artistic door-way" after the words "similar mark".
(ii) To amend the paragraph under the heading "jurisdiction" by adding in the second line "Sec.62 of the Copyright Act, 1957" after the words "Trademarks Act, 1999".3
BSB, J C.R.P.No.3567 of 2019
(iii) To amend paragraph (b) under the heading "court fee" by adding the words 'which is the substantial reproduction of the artistic door-way' after the words 'originally artistic works', and
(iv) To amend paragraphs (a) and (c) under the heading "Prayer and Relief sought for' by adding words 'of the plaintiff' after words 'substantial part thereof in paragraph
(a); and adding the words "of the plaintiff" after the words 'original artistic works' occurring in line 5 of paragraph (c).
4. The defendant filed counter with the following averments:
The suit is of the year 2014. The petition is not maintainable at this belated stage. The instant petition is filed as a counter blast to the petition filed by the defendant under Order VII Rule 11 of the Code, questioning the jurisdiction of the Court below to decide the matters under the Trade Marks, the plaintiff filed the instant petition seeking to amend the jurisdiction and to incorporate Section 55 of the Copy Right Act, 1957 by way of amendment. The amendment sought for, if allowed, would change the cause of action and the nature of the suit. The claim of the plaintiff is barred by limitation, as the period of limitation for action under the Copy Right Act is only three years. In view of the precedential guidance laid down by the Supreme Court in various decisions, the petition is liable to be dismissed.
5. The trial Court allowed the petition observing that on number of occasions, there is reference about the Trade Marks Act as well as Copy Right Act, but provisions are not mentioned in the plaint, whereas, now the prayer is to mention the relevant provisions by way of amendment and that the averments in (original) plaint are attracting the provisions of both the Acts and no new inconsistent plea is taken in the proposal to say that it would cause prejudice to the respondent/defendant. It is further observed that none of the 4 BSB, J C.R.P.No.3567 of 2019 proposed amendments changes the cause of action narrated in the original plaint. The trial Court accepted the explanation that the amendment is to defeat challenge to jurisdiction is not tenable as the words 'artistic work' which is found only in Copy Right Act and not in Trade Marks Act are already in the original plaint and in addition thereto court fee was paid valuing the suit under the provisions of both the Acts. The trial Court felt that the amendments are just to give more clarity for whatever is already there in the plaint.
6. The revision petitioner/defendant raised the following grounds:
The petition seeking amendment is against the settled principles, firstly, it alters the nature of the original plaint to a substantial extent; secondly, such an alteration is with an intention to cause prejudice to the other party; and thirdly, the application itself is barred by limitation. The present petition is filed in order to avoid dismissal of the suit pursuant to the petition filed by the defendant under Order VII Rule 11 read with Section 151 of the Code. The order of the Court below suffers from several infirmities and is against the settled principles of law.
7. The point for consideration is:
Whether the impugned order suffers from any irregularity or illegality?
8. POINT:
The main contention of the revision petitioner/defendant is that the whole case is changed by the proposed amendment and since the omission to incorporate the provision of law in the original plaint is conscious and not due to inadvertence, the respondent/plaintiff cannot 5 BSB, J C.R.P.No.3567 of 2019 contend that the proposed amendment could not be taken in spite of due diligence at the earliest possible time. In this regard, it is pointed out that even before filing the suit, a complaint was lodged with the police indicating the provision of law both under the Copy Right Act, 1957 and the Trade Marks Act, 1999, whereas when the suit was filed, the provision under the Copy Right Act, 1957 has been consciously omitted and it is only a thought after filing the petition to reject the plaint, this petition was filed to confer jurisdiction on the trial Court. It is further submitted that the proposed amendment is defeating the right of the revision petitioner as the said claim under the Copy right Act, 1957 is barred by limitation. It is also further submitted that when the petition for rejection of plaint is pending, giving priority to the disposal of this petition and allowing the amendment is just to defeat the petition filed by the revision petitioner for rejection of the plaint, and thus, there are no bona fides in the petition seeking amendment of the plaint. Further, several arguments are advanced regarding merits of the case in the suit, which do not require any reference here.
9. On the other hand, the respondent/plaintiff contended that no part of facts pleaded is sought to be amended and the proposed amendment would only incorporate provision of law based on facts already pleaded and thus there is neither change in the nature of the suit or the cause of action, nor even a substantial change in the nature of the prayer and that the trial Court has rightly allowed the petition.
10. Before examining the merit in seeking different amendments, it is apropos to refer the decisions cited by the learned counsel for the revision petitioner and the ratio laid in the said decisions. 6
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11. In Modi Spinning and Weaving Mills Co. Ltd. and Ors. vs. Ladha Ram and Co.1, it was held as follows:
"7. The trial court rejected the application of the defendants for amendment. One of the reasons given by the trial court is that the defendants wanted to resile from admissions made in paragraph 25 of the written statement. The trial court said that "the repudiation of the clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law." The trial court held the application for amendment to be not bonafide.
In M. Revanna vs. Anjanamma (Dead) by L.Rs. and Ors.,2 it was held as follows:
"7. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiff Nos. 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff No. 6/Respondent No. 1 herein."
In Revajeetu Builders and Developers vs. Narayanaswamy and Sons and Ors.
"24. In the same judgment of Usha Balashaheb Swami (supra), the Court dealt with a number of judgments of this Court and laid down that the prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that 1 AIR 1977 SC 680 2 AIR 2019 SC 940 7 BSB, J C.R.P.No.3567 of 2019 amendment of pleadings cannot be allowed so as to alter materially or substitute the cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable."
In Rajesh Kumar Aggarwal and Ors. V. K.K.Modi and Ors.3, at paragraph No.17, it was held as follows:
"17. Likewise, the above case was cited in regard to the permissibility of amendment by introducing a new cause of action. This Full Bench decision of the Madras High Court was cited for the proposition that when the amendment sought for sets up a totally different cause of action which ex facie cannot stand on a line with the original pleading, Courts cannot allow such application for amendment and that a pleading could only be amended if it is to substantiate, elucidate and expand the pre-existing facts already contained in the original pleadings; but under the guise of an amendment a new cause and a case cannot be substituted and the courts cannot be asked to adjudicate the alternative case instead of original case."
In Srihari Hanumandas Totala vs. Hemant Vithal Kamat and Ors., it was held as under:
"In a case like this, though recourse to Order 7 Rule 11 Code of Civil Procedure by the Appellant was not appropriate, at the same time, the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the Appellant, or for that matter the parties, can be absolved 3 AIR 2006 SC 1647 8 BSB, J C.R.P.No.3567 of 2019 of unnecessary agony of prolonged proceedings, in case the Appellant is ultimately found to be correct in his submissions."
12. There is no dispute regarding the proposition of law that the Court may at any stage of the proceeding allow either party to amend the pleadings which are necessary to determine the real question in controversy. But such right to seek amendment is not absolute as can be seen from the proviso to Order VI Rule 17 of the Code, which mandates that the petitioner seeking amendment after commencement of trial has to further show that such matter in amendment could not have been taken inspite of due diligence exercised. Even in case where amendment is proposed before commencement of trial, though amendment can be more liberally permitted, it is not that in every case, amendment can be allowed. Whenever discretion is given to a Court to permit certain act to be done, it is always to be guided by judicious approach whereby the interests of both parties must be balanced.
13. No doubt, the proposed amendments are not stated in many words. Just because of that, it cannot be said that they do not alter the nature of the suit. The very basis of the relief to be granted is on the proposed amendments or else there is no need for the petitioner to come up with such an amendment, if the pleadings and prayer as they are originally pleaded/sought are sufficient, irrespective of the proposed amendment.
14. As rightly contended by the revision petitioner, when there is conscious omission in incorporating these proposed amendments in the original plaint and they are sought to be incorporated after certain 9 BSB, J C.R.P.No.3567 of 2019 steps being taken by the defendant, it cautions the Court to thoroughly examine the bona fides of the petitioner in seeking such amendment. Had it been a simple case of forgetting to aver them in the original plaint due to inadvertence, the relief sought by the revision petitioner could not have been seen as an attempt to overcome the laches or dent in the case of the plaintiff. Therefore, in the present case, the observation of the trial Court that the proposed amendments are giving some more clarity to the provisions in respect of the Copy Right Act, 1957 and the Trade Marks Act, 1999 based on which the plaintiff filed the suit is incorrect. Since the said observation is made by the trial Court to allow the prayer, the impugned order is not sustainable. The trial Court further observed that the petitioner explained satisfactorily the reasons for not taking steps earlier. This observation has no foundation, in the light of the fact that, as explained above, omission to mention the Copy Right Act, 1957 is conscious. Thus, for all the aforesaid reasons, the impugned order is liable to be set aside.
15. Accordingly, the Civil Revision Petition is allowed setting aside the orders, dated 25.09.2019 in I.A.No.757 of 2019 in O.S.No.517 of 2014. Consequently, I.A.No.757 of 2019 shall stand dismissed.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
________________ B.S BHANUMATHI, J 25th March, 2022 RAR