M/s Cavalier Coaching & Security v. Maj. V.Ravindran (Retd.) State

1. Whether Reporters of local papers may be allowed to see the judgment? YES

2. To be referred to the Reporter or not ? NO

3. Whether the judgment should be reported in the Digest ? NO V.K. SHALI, J. IA No. 13156/2010

1. This order shall dispose of IA bearing no. 13156/2010 under Order VI Rule 17 read with section 151 CPC seeking amendment of the written statement.

2. Briefly stated the facts of the case are that the plaintiff has filed a suit for permanent injunction, restraining the defendant from infringing the trade mark of the plaintiff, restraint against passing off, damages and delivery up etc. The case which is set up in the plaint is that the plaintiff is the registered owner of the trademark ‘The cavalier’ and its logo in relation to education and training and other activities 2010:DHC:6184 Pradesh, Haryana, Rajasthan, Uttar Pradesh, Uttaranchal, Madhya Pradesh, Maharashtra, Bihar, West Bengal, Jharkhand, Assam, State of Delhi and other North Eastern States. It is alleged that the defendant is infringing the said trade mark by using the impugned trade mark and its logo owned by the plaintiff.

3. After completion of the pleadings on 09.11.2009 issues were framed and the parties were directed to file the list of witnesses within 15 days and the affidavits of its witnesses within eight weeks. The plaintiff had filed his affidavit by way of evidence and the matter was adjourned to 29.09.2010 for the purpose of cross-examination of the witnesses.

4. It was four days prior to 29.09.2010 that the defendant filed the present application seeking amendment in the written statement by contending that after framing of the issues, the defendant realized that important legal as well as the factual pleadings have been omitted from the written statement. It is stated that these pleas which are allegedly omitted in the written statement by the defendants, are that the suit is defective, not maintainable and thus, the same is liable to be dismissed. It is alleged that the agreement dated 28.01.2006 is devoid of any consideration and the plaintiff does not have any exclusive right to use the trade mark ‘The Cavalier’ and its logo. It is alleged that the suit is bad for non-joinder of necessary parties. Lastly, it is alleged that the agreement dated 28.01.2006 is purported to have entered into by the Directors of the plaintiff company in their individual capacity with the defendant, and therefore, the present suit which is filed by the company is not maintainable, as there is no privity of contract between the plaintiff and the defendant. It is contended that the various factual and allegedly legal points if are permitted to be taken by way of amendment in the plaint would result in dismissal of the suit. The paragraphs which are sought to be incorporated in the written statement incorporating these pleas are mentioned in paras 9 to 27 and 5A to 5C of the amendment application.

5. I have heard the learned counsel for the defendant. I did not have the opportunity to hear the submissions from the side of the plaintiff as they were not represented. I have perused the record.

6. The Order VI Rule 17 CPC reads as under: “1. [R.17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial]

7. Although the law regarding amendment of pleadings is very liberal and the Courts have been permitting amendments, but in the year 2002 an amendment to Order VI Rule 17 CPC was carried out, whereby it was laid down that after the commencement of trial no amendment shall be allowed unless and until the Court comes to the conclusion that despite due diligence the party could not have taken the plea in the pleadings sought to be amended. There can be no dispute that a trial can be said to have started in case issues have been framed and the case is fixed for evidence. In case the case is fixed for recording of cross examination that means we have gone a step further.

8. In the instant case, it cannot be disputed that the trial of the case has already begun as the issues between the parties have been struck. The case was actually fixed for recording of the cross examination of the witness and it is at this stage that the present application for amendment was filed. There is not even an iota of averment in the application that the trial has not begun or that the pleas which are sought to be raised by the defendant regarding lack of privity of contract, mis-joinder/non-joinder of the parties etc. could not be taken by him despite the due diligence. In the absence of these averments, it cannot be said that the application is satisfying the requirements of law. Therefore, the amendment sought by the defendant is totally unwarranted and not maintainable in the eyes of law. The very timing of the application just a few days before the record of cross examination gives an impression that it is actuated only to delay the disposal of the suit. I, accordingly, dismiss the application of the defendant.

9. List the matter before the Joint Registrar for fixing of the dates of cross examination on 07.02.2011. V.K. SHALI, J. December 21, 2010 KP