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Hawkins Cookers Ltd. v/s Citizen Metal Industries (India)

    I.A. No. 4480 of 2007 in CS (OS) No. 2020 of 2002

    Decided On, 02 July 2007

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE SHIV NARAYAN DHINGRA

    For The Plaintiff: Mr. Hemant Singh, Mr. Sachin Gupta & Mr. Dushyant Mahant, Advocates. For the Defendant: Mr. Shailen Bhatia, Advocate.



Judgment Text

Shiv Narayan Dhingra, J:

1. By this application under Order 6 Rule 17 the defendant seeks amendment of the Written Statement. It is stated in the application that there were subsequent facts required to be incorporated in the Written Statement. Since the plaintiff was allowed to amend the plaint, the amendment in the Written Statement was also necessary to deal with the amended plaint. It is also submitted that incorporation of the amendments was necessary for proper adjudication of controversy. The amendments are sought by the defendant in paragraphs No. 3 (1) and 4 of preliminary objection and defendant wants to add two more preliminary objections by adding paragraphs 20 and 21. The defendant also wants to amend paragraphs Nos. 1, 7, 8, 11, 13, 14, 18, 19, 24, 28 & 29 of reply on merits.

2. The only new fact which defendant wants to add is given in paragraph 14 of the reply on merits wherein defendant wants to add that defendant was holding Design Registration of Pressure Cooker vide Registration No. 190925 in class 07-02 and the registration was valid & subsisting and no suit for infringement was maintainable against a Registered Proprietor. All other amendments sought by the defendant in fact are nothing but expansion of the earlier paragraphs and replies. Defendant wants to add few lines in almost every paragraph to lay emphasize on what has already been stated. Two new paragraphs which defendant wants to add in preliminary objections seek to bring on record the legal provisions and non-maintainability of the suit.

3. A perusal of record would show that WS was filed on 18th December, 2002. This Court was informed on 18th February, 2003 that an affidavit was filed on behalf of Defendant No. 1 vide Dy. No. 3777 showing that Registration Certificate under the Designs Act had been granted to the defendant which defendant would place of record. The Court had allowed the affidavit to be taken on record. No amendment in WS was sought to incorporate this fact at that time. The matter thereafter got prolonged because of enhancement of the jurisdiction of the District Court and sending of this case to District Court. Thereafter, plaintiff made an application for amendment of the plaint thereby raising the amount of claim and the valuation of suit. The amendment was allowed and the defendant was given opportunity to file WS to amend the plaint vide order dated 18th May, 2005 when the case again came up before this Court. The defendant was to file WS within 30 days. No Written Statement was filed by the defendant despite opportunities. Admission/denial of documents took place and thereafter, defendant filed an application under Order 7 Rule 11 for rejection of the plaint, which was dismissed by this Court and after dismissal of the application for rejection of plaint present application for amendment of the WS was filed.

4. An amendment to the pleadings can be allowed by Court only if the same is necessary for adjudication of the controversy between the parties or if there are such subsequent facts which are necessary to be brought on record by way of amendment alone. In the present case, the registration of design of the defendant was informed to the Court in 2003, if the defendant would have been really interested in amending the WS, the defendant would have filed an application under Order 6 Rule 17 at that time. However, the defendant filed an affidavit informing the Court about registration of its design.

5. The controversy between parties is in respect of a design of the pressure cooker and if the defendant had got a design registered in its favour, the same would have been the subject matter of evidence and the defendant would have been at liberty to prove the same during evidence. Once, an affidavit has been filed about the existence of a registered design in favour of the defendant and the Court had allowed that the affidavit to be the part of the record, the plaintiff would have to meet the issue of registration of design in favour of the defendant in order to succeed in his claim of restraining the defendant from using the present design of the pressure cooker. Registration of Design was a defence available with the defendant which defendant disclosed by filing an affidavit in 2003. The defendant cannot be allowed to make an application for amendment in 2007 stating the same as a new fact having come to the knowledge of the defendant. In fact in 2007 nothing new came to the knowledge of the defendant which could be brought on the record. The amendment application by the defendant is part of the dilatory tactics being adopted by the defendant for prolonging and protracting the litigation. The defendant was given time for filing WS in response to the amended plaint of the plaintiff but defendant did not file amended WS. Thereafter, defendant moved an application for rejection of the plaint which was also dismissed. The defendant has now come up with the present application.

6. I consider that law does not permit a litigant to make applications after applications and not to allow main controversy to be decided by the Court. In case the defendant would have been genuinel

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y interested in amendment of the WS, defendant would have taken steps to amend WS right in February, 2003 when defendant had informed the Court about the registration of design in its favour. The very fact that defendant did not move for amendment of WS for four year shows that defendant was not genuinely interested in amending WS but was only interested in delaying the proceedings. I find no force in the application. The application is dismissed with cost of Rs. 10,000. CS(OS) No. 2020/2002 To come up for framing of issues on 20th September, 2007.
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