KANUNGO MEDIA PVT. LTD. v. RGV FILM FACTORY & ORS.

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. 2015:DHC:5779

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 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 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