Dayal Fertilizers Pvt. Ltd & Anr. v. Dayal Agro Industries & Anr.

4. Counsel for Gopika Industries has made the following submissions: BANSAL

I. The present application has been filed in a highly belated manner, i.e., three years after filing of the present suit. The issues in the suit have been framed on 26th February, 2020. The trial in a civil suit commences upon framing of issues. Reliance in this regard is placed on the judgments of the Supreme Court in Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N. & Ors., 2006 SCC OnLine SC 1368, and Mohinder Kumar Mehra v. Roop Rani Mehra, 2017 SCC OnLine SC 1451.

II. There is a fundamental difference between the torts of infringement and passing off and therefore, by way of present application, Dayal Fertilizers is seeking to change the nature and character of the suit.

III. The present application has been filed only to delay the proceedings in the suits.

IV. I.A.15638/2017 under Order VII Rule 11 of the CPC and

I.A.8944/2018 under Section 28(3) of the Trade Marks Act, 1999, were filed on behalf of Dayal Fertilizers in CS(COMM) 700/2017, on the ground that the suit for infringement filed by Gopika Industries was not maintainable. However, both the aforesaid applications were subsequently withdrawn by Dayal Fertilizers. Therefore, there is no merit in the contention of Dayal Fertilizers that there has been a change in the position of law.

5. In the rejoinder, Dayal Fertilizers has denied that the present application has been filed to delay the proceedings in the suits. It is stated that the present application has been filed to avoid multiplicity of proceedings.

6. I have heard the counsels for the parties.

BANSAL

7. At the outset, a reference may be made to the provisions of Order VI Rule 17 of the CPC as amended with effect from 1st July, 2002, which is set out hereunder: “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.”

8. While interpreting the aforesaid provision, the Supreme Court in Ajendraprasadji (supra) observed as under: “36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f. 1-7-

2002. It had a provision permitting amendment in the first part which said that the court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration.

57. It is submitted that the date of settlement of issues is the date of commencement of trial. (Kailash v. Nanhku [(2005) 4 SCC 480]) Either treating the date of settlement of issues as date of commencement of trial or treating the filing of affidavit which is treated as examination-in-chief as date of commencement of trial, the matter will fall under proviso to Order 6 Rule 17 CPC. The defendant has, therefore, to prove BANSAL that in spite of due diligence, he could not have raised the matter before the commencement of trial. We have already referred to the dates and events very elaborately mentioned in the counter-affidavit which proves lack of due diligence on the part of Defendants 1 and 2 (the appellants).”

9. The paragraphs extracted above suggest that the commencement of trial would be taken from the date of settlement of issues or filing of examination-in-chief by way of affidavit. From the ‘dates and events’ of the aforesaid case recorded in the judgment, it can be seen that the deposition of the plaintiff had been filed by way of affidavit and recording of evidence had begun when the amendment application was filed.

10. In Mohinder Kumar Mehra (supra), the Supreme Court observed as under:

22. The proviso to Order 6 Rule 17 CPC prohibited entertainment of amendment application after commencement of the trial with the object and purpose that once parties proceed with the leading of evidence, no new pleading be permitted to be introduced. The present is a case where actually before parties could lead evidence, the amendment application has been filed and from the order dated 14-2-2014, it is clear that the plaintiff's case is that parties have led evidence even on the amended pleadings and the plaintiff's case was that in view of the fact that the parties led evidence on amended pleadings, the allowing of the amendment was a mere formality. The defendant in no manner can be said to be prejudiced by the amendments since the plaintiff led his evidence on amended pleadings also as claimed by him. xxx xxx xxx

24. Looking to the object and purpose by which limitation was put on permitting amendment of the pleadings, in substance, in the present case, no prejudice can be said to BANSAL have caused to the defendant since the evidence was led subsequent to the filing of the amendment application. We, thus, are of the view that looking to the purpose and object of the proviso, the present was a case where it cannot be held that amendment application filed by the plaintiff could not be considered due to bar of the proviso.”

11. In Baldev Singh (supra) relied upon by Dayal Fertilizers, it was observed by the Court that since the parties are yet to file their documentary evidence in the suit, it cannot be said that the trial has commenced. The relevant observations as set out in paragraph 17 are reproduced below: “17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings.”

12. In the present suit as well as in CS(COMM)700/2017, common issues were framed on 26th February, 2020. It was further noted in the said order that CS(COMM)700/2017 would be treated as the lead suit, wherein evidence would be recorded. Therefore, it was Gopika Industries, the BANSAL plaintiff in CS(COMM) 700/2017, who had to lead evidence and file list of witnesses and evidence by way of affidavit within four weeks. However, the list of witnesses and the evidence by way of affidavit was not filed within the aforesaid time limit and therefore, the same are not on record.

13. It is also pertinent to note that both the parties have filed applications (I.A. 9762/2020 by Dayal Fertilizers in CS(COMM)101/2017 and I.A. 19449/2022 by Gopika Industries in CS(COMM)700/2017) for amendment of the issues, which are pending adjudication. Since, there is no finality to the issues framed, it cannot be said that the trial has commenced in the suits. Hence, the bar of the proviso to Order VI Rule 17 of the CPC cannot apply in the present case.

14. It is relevant to note that Gopika Industries had itself filed applications for amendment of their written statement (I.A.13705/2017 and I.A. 7063/2018) and an application for condonation of delay in filing amended written statement (I.A. 6205/2018), which was dismissed by the Joint aforesaid order of the Joint Registrar, was filed with the condonation of delay application. The written statement was ultimately taken on record subject to the payment of costs of Rs.25,000/-. Therefore, it cannot be said that Dayal Fertilizers is alone responsible for the delay.

15. Even if it is assumed that the earlier counsel committed a mistake in not incorporating averments with regard to infringement, Dayal Fertilizers cannot be made to suffer for the same. It is the settled position of law that a mistake of a lawyer cannot work to the detriment of the client.[1] In fact, Savitri & Ors. v. Keshav Singh & Ors., 2021 SCC Online Del 1044 and Saddam Husain v. Ram Prasad and Ors., MANU/DE/0445/2021 BANSAL Gopika Industries had also filed an application (I.A. 15639/2017 in CS(COMM)700/2017) seeking amendment of the plaint on the ground of lack of communication with the earlier counsel, which was allowed by the Court.

16. In Bengal Waterproof (supra), it was held that infringement and passing off actions would give a recurring cause of action and in such cases, bar of Order II Rule 2 of the CPC cannot be invoked. Further, in the recent judgment of the Supreme Court in Life Insurance Corporation (supra), while upholding a judgment in Upendra Narain Roy v. Rai Janoki Nath Roy, AIR 1919 CAL 904, the Supreme Court observed that Order II Rule 2 of the CPC cannot apply to an amendment, which is sought in an existing suit. The relevant observations as set out in paragraph 47 are reproduced below: “…..As regards the other point it has more ingenuity than substance. It proceeds on the erroneous assumption that the amendment was prohibited by Or. II, r. 2. This Rule does not touch the matter before us. It refers to a case where there has been a suit in which there has been an omission, to sue in respect of portion of a claim, and a decree has been made in that suit. In that case a second suit in respect of the portion so omitted is barred. That is not the case here. In the present case the suit has not been heard but a claim has been omitted by, it is said, inadvertence. To hold that in such case an amendment should not be allowed would be to hold something which the Rule does not say and which would be absurd. The Rule says “he shall not afterwards sue,” that is, it assumes that there has been a suit carried to a decision, and a sub-sequent suit. It does not apply to amendment where there has been only one suit. As the Plaintiff had in law a right to apply for an amendment before the conclusion of his suit, it cannot be said BANSAL that any rights of the Respondent in the Pabna suit are affected. Such a contention is based on the erroneous assumption that nothing could be done by way of amendment of the Calcutta suit to remove the objection that the claims on the previous mortgage or charge were not sustainable. A case would fall within Or. II, r. 2, only if a Plaintiff fails to apply for amendment before decree, and then brings another suit. The Plaintiffs are not doing that but asking for amendment in the one and only suit they have brought. This is, therefore, not a case in which the amendment either affects rights to the other party, or otherwise prejudices him.”

17. The bar of Order II Rule 2 of the CPC applies when a plaintiff fails to amend the pleadings to include a portion of his claim in the suit filed earlier and institutes another suit for the said purpose. In the present case, the amendment has been sought by Dayal Fertilizers in the present suit itself. Therefore, the bar of Order II Rule 2 of the CPC cannot apply in the present case. In fact, allowing the amendment would avoid multiplicity of suits.

18. In Vatika Resorts (supra), while allowing an amendment application so as to set up a case for infringement of the registered trademark of the plaintiff, the Court observed that an infringement action is based on substantially the same cause of action as that of passing off. Therefore, the said amendment will not change the nature of the suit. It was further observed that the Court shall not go into the merits of the amendment while deciding an amendment application

19. In the present case also, Dayal Fertilizers seek to amend the plaint in order to include averments relating to the infringement of their registered trademarks. The said amendment is based on the same cause of action as that of passing off and will not change the nature and character of the present suit.

BANSAL

20. In my considered view, the amendment sought is necessary to determine the real controversy between the parties and to avoid multiplicity of proceedings. For the delay caused, Gopika Industries can be compensated by way of costs.

21. Accordingly, the application is allowed subject to payment of costs of Rs. 50,000/-.

22. The application stands disposed of. CS(COMM)101/2017

23. The amended plaint filed on behalf of the plaintiffs along with the present application is taken on record.

24. The defendants shall file written statement to the amended plaint within four weeks.

25. List on 3rd August, 2023. AMIT BANSAL, J. APRIL 10, 2023 rt/at BANSAL