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% 21.07.2011
Present: Mr. Shailen Bhatia and Ms. Zeba Tarannum Khan, Advocate for the petitioner.
+CM No. 13 141/2011 in CM (M) No. 824/2011
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Allowed, subject to just exceptions.
CM (M) No. 824/2011 & CM No. 13 140/2011 (stay)
The order impugned before this court is the order dated
23.05.2011 vide which the application filed by the defendant seeking amendment of his written statement had been allowed.
The conlntion of the learned counsel for the petitioner is that this order suffers from illegality as it contravenes the Rules of the
Punjab and Haryana High Court Rules which are applicable to the
Delhi High Court; contention being that the amendment application must make specific averments and must indicate the words or the paragraphs which are proposed to be added, omitted or substituted in the original pleadings. To support his submissions he placed reliance upon the
JUDGMENT
Gurdial Sinc,rh & Ors. vs. Rat Kumar & Ors.; contention being that the impugned order is against the import of the law laid down in this judgment. Record shows that this is the dispute between the two warring brothers; the suit has been filed by the plaintiff for infringement of a registered trade mark, passing off, copy right and rendition of accounts; the contention of the plaintiff being that he
2011:DHC:7833 was carrying on business under the name and style of M/s.
Forward Book Depot and marketing his products under "Printed
Publication (Book)" since 1942. The suit had been filed in 1998. An interim application under Order 39 Rules 1 & 2 of the Code had also been filed alongwith the suit. On 30.07.1998, the lea'rned counsel on behalf of the defendant had made a statement that the reply filed by the defendant to the interim application under Order
39 Rule 1 & 2 of the Code may be treated as his written statement. Thereafter adjournments were taken up by the respective parties hoping that a settlement would occur between the two. On 24.08.2005, the suit had been dismissed in default; it was thereafter restored; an application under Order 23 Rule 3 of the Code had also been filed by the parties for recording a compromise between the parties but this did not mature. The amendment sought in the proposed written statement is that the trade mark "Champion" is still being used by Rajiv Rastogi who is one of the partners of the defendant firm and his right to use it shows from the certificate issued, by the competent authority. This has been specifically pleaded in para 9 of the application. All these facts had been noted in the impugned order and in this context, it was correctly recorded that the judgment of Gurdial Singh (supra) is inapplicable to this factual scenario. The impugned order had traced the history of the case 4between the two parties and had noted that in view of the averments in the original written statement (which was the reply to the application under Order 39 Rules 1 & 2 of the Code) the amendment sought is not going to change the nature of the case; the plea sought to be incorporated by the defendant that the trade mark "Champion" is continued to be used by the defendant was in consonance with the earlier reply which he has filed to the pending interim application. There is no illegality in the impugned order. Impugned order suffers no infirmity; it calls for any interference. Dismissed.
INDERMEET KAUR, J. JULY 21, 2011 rb 4-'