1. The petitioner is the original defendant in Trade Mark Suit No.12 of 2010, who is aggrieved by the order passed by 5th Additional District Judge on 17.9.2011 and, therefore, this petition under Article 227 of the Constitution of India.
2. The petitioner is a proprietary concerned engaged in the business of processing, marketing, packaging and selling of Tea with registered Trade Mark viz. “RATAN 6 TEA” since the year 1999 and it similarly adopted new trademark “NAVRATAN 7 TEA”, which is yet to be registered and such request is pending before the appropriate authority under the Trade Marks Act, 1999 from November, 2009. The petitioner claims to be doing this business since December, 1999 and because of the vide popularity of its tea produce, it had applied for trademark registration of “RATAN 6 TEA”with new art work and label, which is pending for registration. It has also registered all copyrights of “RATAN 6 TEA”. Initially, it was running partnership firm but subsequently it got converted into proprietarship firm.
3. The present respondent in Civil Suit being Trade Mark Civil Suit Nos.11 of 2010 and and 12 of 2010 and obtained ex parte injunction orders. It is alleged that this was obtained by suppressing material facts and misleading the Court. The Court without assigning any reason granted the same.
4. The petitioner, therefore, filed an application under Order 39 Rule 4 of the Code of Civil Procedure, which requires the Court to vary, discharge or set aside an order of injunction on application made by party dissatisfied with the order and in the event of any party intentionally making false or misleading statement in relation to a material particular and if injunction was granted on swat basis without issuing the notice to the other side, the Court is required to vacate the injunction.
5. It is averred by the petitioner that although the parties have made their submissions with regard to an application preferred under Order 39 Rule 4 of CPC, an order is passed by the learned District Judge upon a purshsis passed by the petitioner to hear firstly his amendment application and such an order would amount to defeating the purpose of such application under Order 39 Rule 4 of CPC and, therefore, challenge is made to the impugned order passed on 17.9.2011.
6. Learned advocates for the parties have fervently made their submissions to support their respective stands.
On having examined the application moved for amendment of plaint under Order 6 Rule 17 of the Code of Civil Procedure preferred by the respondent original plaintiff in pending the suit as also on examination of the order impugned and considering the law on the subject, for the reasons to be followed hereinafter, this petition deserves no entertainment.
7. It is the case of the respondent plaintiff that it is engaged in the business of processing, packaging and marketing under the trademark “JIVRAJ” for more that 3 decades. On account of its good reputation and goodwill in the market, it has a major share of export from the State of Gujarat in respect of the said goods. It is alleged that the defendant petitioner herein is also engaged in the business of processing tea and coffee. Trademark “JIVRAJ-9” is claimed to be an essential feature of plaintiff's trademark and it applied for registration of this trademark in the form of a label, which was formally registered under no.341078 in the name of Mr.Suresh J. Shah trading as Messrs. Jivraj & Co., Surat and is now registered under the name of respondent-Company. It is also averred that the plaintiff respondent is registered under the Copyright Act and the said artistic work is also protected by the Registrar from the year 2005 and thus, it is also the owner of the said artistic work. This being an intellectual property of the plaintiff, the same can be enjoyed by way of the statutory right and protection it can claim against all others.
8. It is alleged that the petitioner herein adopted the label bearing the word “RATAN-6” and are marketing and distributing their product in Surat and other markets.
9. Notice had been issued. The defendant challenged their label, which is much similar to the label of “JIVRAJ-9” label and the petitioner has also applied for registration of “RATAN-6” label, which was subsequently withdrawn as it was informed to the petitioner defendant that respondent would take necessary action. Since the label is a colourable imitation of the plaintiff's registered “JIVRAJ-9” label, colour scheme adopted on the latest label of “RATAN-6” is alleged to have been made subsequently compared to the material reproduced of plaintiff's “JIVRAJ-9” label. It is also alleged that similar colour scheme arrangement is used by placing the figure “6”, which is reverse of figure “9” of the plaintiff's label. The colour scheme is also an essential part of the defendant petitioner. This is alleged to be a design to take unlawful, mala fide and illegal profit of business of the respondent. Accordingly, a suit is preferred to restrain the petitioner defendant from committing any infringement of registered trademark as also to restrain it from use of any identical or deceptively similar trademark .
10. In another Suit No.11 of 2010 preferred by this respondent identical prayers in respect of the mark “NAVRATAN-9” used by the petitioner defendant is made. Thus both the prayer are in respect of “RATAN-6” Tea as also “NAVRATAN-9” Tea being used by the petitioner defendant allegedly committing the act of infringement of the plaintiff's registered trade mark.
11. The respondent has been protected by way of interim injunction. The application is preferred for amendment of the plaint and injunction application under Order 6 Rule 17 seeking following amendment:-
“Whenever in the plaint and Injunction Application there reference/printing of mark “NAVRATAN 9”the same may be read as / permitted to be amended as 'NAVRATAN 9”(In Gujarati numeral seven).”
12. This is on the strength of the reply of the defendant that the application has been moved. It is urged that the defendant had tried to misguide the Court and created a confusion. This application was moved in September, 2010. In both Suit Nos.11 of 2010 and 12 of 2010, the detail of the proprietary concern was clarified by way of amendment. It can be noted from the record that in Trademark Suit No.11 of 2010 a purshis had been tendered by the defendant relying on the judgment of the Delhi High Court in the case of Rajveer Banaspati Company Ltd. vs. Amrit Banaspati Company Ltd. reported in 2010(42) PTC 147(Del), where it has been laid down that hearing of amendment application should precede hearing of application for injunction. An insistence is thereby to firstly hear the application under Order 39 Rule 4 of the Civil Procedure Code.
13. The Court made a mention that this is not an application for a purshis and, therefore, if there is any 'lis,' the party has to give an application and not a purshis. However, when the petitioner herein chose not to give an application, the Court decided that instead of deciding the application under Order 39 Rule 4, application for amendment will have to be decided firstly because, if such amendment is having a bearing on application for injunction, it would be necessary for so doing it.
14. This application has been challenged mainly on the ground that this is contrary to the principles laid down by the higher Courts, as the party has been enjoying ex parte ad interim relief on the basis of particular pleading and vacation of such an order must be on the basis of those pleadings only and application for amendment under Order 6 Rule 17 of the Code of Civil Procedure must await determination of application for interim injunction.
15. Heavy reliance is placed on the judgment of the Delhi High Court, wherein the plaintiff after getting the opinion in his favour without proceeding with the hearing of the ex parte ad interim injunction, as required under Order 39 Rule 4 of the Code of Civil Procedure, moved an application for amendment under Order 6 Rule 17. As the matter dragged on account of such application, the Delhi High Court was irked by that fact. In a judgment of the Supreme Court in the case of Revajeetsu Builders and Developers vs. Narayanaswamy and Sons and Ors. in Civil Appeal No.6921/2009 arising out of SLP(C) No.1552/2007 decided on 9.10.2009, the Apex Court has held that the Order VI Rule 17 is one of the important provisions of the CPC, but it had no hesitation in observing that this is one of the most misused provisions of the Code for dragging the proceedings indefinitely, particularly in the Indian Courts, which are otherwise heavily burdened.
15-A. The Delhi High Court held, on the basis thereof, that when the ex parte ad interim injunction is secured on the basis of certain averments made in the plaint, vacation or confirmation of the said order must necessarily be judged on the basis of the very same pleadings. It also held that the touchstone for vacation of the ex parte order, must be pleadings of parties prior to the filing of the amendment application. As otherwise, any party would rush to the Court without making full disclosure of all the facts within its knowledge and subsequently would seek incorporation of the said facts in the plaint by way of amendment, while in the meantime continue to enjoy the ex parte order obtained by it fraudulently and dishonestly.
16. It is the fact that respondent herein has enjoyed the exparte interim injunction on the basis of particular pleading set out in both the suits. It has based its case on its registered trademark “JIVRAJ-9”, as also on the artwork of the label of “JIVRAJ-9”, which was prepared and registered with the Registrar of Trademark.
17. On the allegation that the petitioner defendant has been using the trademark “NAVRATAN-9” label tea as also “RATAN-6” tea by way of application for injunction. It is urged that the amendment be permitted to read the same as “NAVRATAN-9” ( In Gujarati Numeral Seven).
18. Present respondent original plaintiff, when on the basis of particular averments set out in the plaint, had obtained ex parte injunction, without unnecessarily stretching the proceedings, it is ordinarily expected that the parties should proceed with the matter at the earliest and the Court concerned also should adjudicate upon the application at the earliest.
However, it is not the case of the either side that the respondent herein is dragging the matter on account of pendency of application for injunction. Admittedly, hearing of Order 39 Rule 4 of the Civil Procedure Code has been sufficiently over as both the sides had submitted their written submissions before the Court. This application was preferred in response to the affidavit in reply filed by the petitioner herein and the only prayer that has been sought is of reading the numeral 9 in Gujarati as Seven.
19. At this stage, provision of Order 6 Rule 17 of the Code of Civil Procedure is examined, it empowers the Court to allow either party to alter or amend pleadings at any stage of the proceedings, provided the Court is of the opinion that the same is necessary for the purpose of determining the real question of controversy between the parties.
It is thus the discretion of the Court concerned to permit the amendment in the pleadings on such terms, as may be just, if it is of the opinion that for addressing the real controversy between the parties, the same is required. There is no bar to consider the powers given under the statute and also the exercise of discretion permissible under this Rule.
20. The question therefore that needs to be addressed to by this Court in this petition is as to whether hearing of application of amendment prior to the hearing of application for injunction is permissible and if replied in affidavit filed whether the same would cause serious prejudice to the cause of the petitioner herein as has been reiteratively contended before this Court. As can be noted from the record of the trial Court also, it was insistence on the part of the petitioner to hear the application for injunction first although the Court appears to have contemplated simultaneous hearing of both the applications. Without moving any application, by passing a purshis, petitioner herein insisted the Court to pass an order on such a purshis.
It is the case of the respondent that all along the pleadings, there is a specific case pleaded by the respondent in both the suits. The only change is of numeral, which is numeral 9 in English becomes font 7 in Gujarati.
21. The decision of the Delhi High Court was rendered under the condition where party having enjoyed ad interim relief was attempting to delay the proceedings by preferring such an application of amendment and such delay can never be appreciated nor endorsed. However, that would not ipso facto undermine the requirement of amendment, if otherwise necessary to be allowed in a given case. Ordinarily, the Court may not permit the party to delay further proceedings on account of pendency or preference of amendment application. However, in a case like present one, where the respondent is seeking amendment of one numeral without adopting to any dilatory tactic nor is the respondent reflecting any conduct of not proceeding with the hearing of notice of motion, it would not be possible for this Court to interfere and set aside the order impugned.
22. Under Article 227 of the Constitution exceptionally interference is warranted unless there is material illegality leading to grave injustice powers need to the invoked. In absence of any such conditions, this petition is dismissed and stands disposed of accordingly.
(Ms.Sonia Gokani, J.) sudhir