S. Tamilvanan, J.
1. The application in A.No. 1490 of 2013, has been filed by the applicant/plaintiff under Order14, Rule8of High Court Original Side Rules and Order6, Rule16and17of the Code of Civil Procedure read with Order14, Rule10(xii) of High Court Original Side Rules, seeking an order to permit the applicant/plaintiff to amend the plaint in C.S. No. 496 of 2012 by inserting paragraphs 6A to 6G in the plaint, as detailed in the Judges Summon.
2. The applicant/plaintiff has stated that the applicant firm has filed the above suit for the relief of permanent injunction restraining the respondents/defendants, from in any manner infringing with the plaintiffs Registered Trademark "Murugan" by using the offending Trade Mark "Murugan" or any other Trade Mark or device, which is identical or deceptively similar to or a colourable limitation to that of the applicant’s registered trademark and other reliefs.
3. The applicant/plaintiff has averred in the affidavit that by oversight some averments required to be made in the plaint has left out and omitted to be made due to oversight and lack of legal knowledge of the applicant, due to which the respondents are taking flimsy defence, as if the averments in the plaint are vague etc. Hence, in order to adjudicate the dispute involved in the above suit, it is just and necessary that the applicant may be permitted to amend the plaint whereby insert paragraphs 6A to 6G in the plaint, as detailed in the accompanying Judges summon. The amendment sought for is formal in nature and only sought for to be made, to state the case of the applicant in the plaint, more effectively and in order to avoid technical objection being raised by the respondents.
4. Mr. K. Ramu, learned counsel appearing for the petitioner submitted that the amendment sought for, by the applicant is only to put forth the case more effectively with necessary averments to fortify the case of the applicant, in order to enable this Court to better appreciate the facts and circumstances of the case for effective adjudication of the dispute involved in the above suit. It is further submitted by the learned counsel that no prejudice would be caused to the respondents/defendants, as the respondents have not even filed their written statement and that the respondents will have sufficient opportunity to put forth their plea, if any, by way of filing written statement against the entire plea of the applicant to be made out after averments of plaint is ordered. It is further contended that if the applicant is not permitted to amend the plaint by inserting paragraphs 6A to 6G, the applicant/plaintiff would be put to serious irreparable loss, damage and injury, as the same is likely to materially affect the outcome of the suit. It is further argued that the applicant/plaintiff has come forward with this application, seeking an order to amend the plaint by inserting paragraphs 6A to 6G as stated in the Judges summon, that would not prejudice the respondents/defendants.
5. Per contra, Mr. M.K. Rao, learned counsel appearing for the respondents 1 to 3 submitted that the application filed, seeking amendment of the plaint is not legally maintainable. In support of his contention, he drew the attention of this Court to the counter filed by the respondents. Learned counsel for the respondents further submitted that the proposed amendment would be of introducing a new plaint, for which he could file only a separate suit and seeking amendment is not permissible under Order6, Rule17of the Code of Civil Procedure.
6. It is seen that the petitioner/plaintiff has sought the following amendment by way of adding para 6 A to 6G which reads as follows :
6A. The plaintiff submit that the plaintiff firm was constituted on 18th August, 2000 with the full knowledge and consent of the second defendant, who is none other than the brother of the father of the partner of the plaintiff firm, who was then a partner of one M/s. Murugan Metal Industries to supplement and compliment Murugan Metal Industries, in which the father of the partners of plaintiff firm was the other partner, but with independent rights and liabilities to carry on business in manufacturing and marketing the household articles including Pressure Cookers both electric and nonelectric. The second defendant, the then partner of Murugan Metal Industries had consented for adoption and use of the Trade mark "Murugan" in respect of pressure cookers both electric and non-electric. Thus, the plaintiff came to adopt and use the Trademark "Murugan" in respect of pressure cookers both electrical and non-electrical including Rice cookers and Idly cookers. The plaintiff also pursuant to the same, registered his trade mark under Class 11 and has been using the same since 2000 openly to the fully knowledge of the second defendant. Thus, the plaintiff has right in the trade name "Murugan" in respect of pressure cookers, which is even adverse to that of M/s. Murugan Metal Industries of which, the second defendant was erstwhile partner till 31.08.2010. The partnership of Murugan Metal Industries was reconstructed on 31.08.2010, when the second defendant retired from the partnership of Murugan Metal Industries. The understanding and the terms of retirement of the second defendant from the partnership Murugan Metal Industries has no bearing and is irrelevant for the issues in the present suit suffice to state that the second defendant from the partnership Murugan Metal Industries has no bearing and is irrelevant for the issues in the present suit suffice to state that the second defendant was not assigned the "trade mark" registration which enured, and continued as an asset only to M/s. Murugan Metal Industries alone. The present suit is for use of the offending Trade mark "Murugan" by the defendants in respect of pressure cookers, electrical and nonelectrical, including Rice cookers and idly cookers, which has been elaborated and stated supra at paras 2, 3, 4 and 5 of the plaint, apart from the allegations made in other paragraphs.
6B. The plaintiff further submit that since the constitution of the plaintiff firm, it is the plaintiff, who has been manufacturing and marketing pressure cookers under the Trademark "Murugan" exclusively, even to the exclusion of M/s. Murugan Metal Industries. The said Murugan Metal Industries, since 2000 August, was not manufacturing and marketing pressure cookers under Trademark "Murugan" or under any other trade mark. Thus, by implied contract and the conduct of the parties, the plaintiff was given exclusive right to use the Trademark "Murugan" and since 2000, it is the plaintiff, who alone was manufacturing and marketing pressure cookers under the Trademark "Murugan" and the reputation, goodwill earned in respect of the pressure cookers under the Trade mark "Murugan" by tireless efforts of the plaintiff and high standards maintained by the plaintiff, apart from the huge sales promotion and advertisements made by the plaintiff, apart from the huge sales promotion and advertisements made by the plaintiff running to several millions of rupee, at high expenditure and cost exclusively belongs to the plaintiff alone. The defendants have therefore, no manner of any right to use the Trade mark "Murugan" in respect of pressure cookers, electrical and non electrical, including rice cookers an idly cookers as even M/s. Murugan Metal Industries, in which the second defendant was the erstwhile partner, from which he retired and the said firm itself, was not entitled to use the trade mark "Murugan" in respect of pressure cookers both electrical and non-electrical including Rice cookers and idly cookers. The plaintiff respectfully submit that in the circumstances stated above, the plaintiff has exclusive right to use the trade mark "Murugan" in respect of pressure cookers including the artistic work in the Trade mark label as is being used by them. The allegations that the plaintiff has copied the copy right existing much earlier is incorrect, misleading and false. Even otherwise, the defendants do not have any right to complain against the same, as the defendants do not have any semblance of right whatsoever to use the name "Murugan" in respect of cookers and pressure cookers etc., for which the plaintiff alone is a registered trade mark holder for (he last more than 12 years. The further allegation that the plaintiff made false allegations to grab the order of injunction is equally false and incorrect. The defendants having also aquacade's with the use of the Registered Trade mark by the plaintiff, can neither interfere with the use of the Trade mark by the plaintiff nor the defendants can assert any right to use the registered trade mark of the plaintiff.
6C. The plaintiff submits that the trademark in respect of pressure cookers vests with the plaintiff and the plaintiff has perfected the right in the trade mark "Murugan" in respect of pressure cookers by virtue of continuous use of trade mark since August, 2000 to the knowledge and adverse to that of the defendants herein. As the defendant has no manner or semblance of any right over the trade mark "Murugan" and the reputation and goodwill attached to the pressure cookers bearing the trade mark "Murugan" with its artistic lettering design and colour, which is exclusively associated with the plaintiff. The act of the defendants in adopting any identical trade mark and marketing the pressure cookers bearing the offending trade mark "Murugan" can only be with an intention to cash upon the goodwill of the plaintiff. The defendants is a new entrant to the business, the claim made to the contra or false, the defendants do not have nay right to do so as the said act of the defendants adopting the trademark of the plaintiff is with the sole object of playing deception and cashing in on the goodwill created by the plaintiff and one to deceive the gullible public by making them believe that the goods sold by the defendant under the offending trade mark also comes from the plaintiff or to show that the defendants have some kind of association with the plaintiff. In the circumstances, it is therefore, very clear that the defendants are passing off their products as that of the plaintiff by deceiving and playing fraud on the general public by making them to believe that the products sold by the defendants are that of the plaintiff.
6D. The plaintiff further submits that the defendants cannot plead ignorance of plaintiff’s use of the trade mark "Murugan" in respect of pressure cookers, which was carried on by the plaintiff, since August 2000 almost under the same roof, when the second defendant was a partner of M/s. Murugan Metal Industries till 31.08.2010, when the second defendant retired from the firm M/s. Murugan Metal Industries. Thus, the use of the trademark under artistic work in the trade mark "Murugan" by the plaintiff is adverse to that of the defendants and to the knowledge and consent of the defendant particularly, the second defendant, who was the erstwhile partner of Murugan Metal Industries till 31.08.2010. Therefore, the defendants cannot plead ignorance and object to the exclusive use of the trade mark by the plaintiff, more so when the defendants have consented and conceded the right of the plaintiff for exclusive right of Murugan in respect of pressure cookers. In any event, the second defendant, who had aquacade's to the exclusive use of registered trade mark "Murugan" with its artistic design and colour exclusively by the plaintiff, over several years for all types of pressure cookers products viz., electrical and non-electrical and idly pressure cookers. It is not open to the defendants to set up a rival claim or deny the exclusive right earner and established by the plaintiff, over a long period. The plaintiff by spending several millions of rupees since 2000 has assiduously hold its business and reputations based on the registered trade mark under Class 11 for manufacture of its cookers and pressure cookers and has earned a fair name and reputation in the business with turn over running to several crores of rupees, which is now sought to be interfered with by the defendants illegally.
6E. The plaintiff respectfully submits that as explained above, the registration under No. 1257999 in Class 11 in respect of Pressure cookers will also give cause of action and right to the plaintiff to file a suit for infringement arising out of use of the offending trade mark for the similar or allied goods also as provided under the Trade Marks Act, 1999. The targeted customer and distribution system and place of sale to the ultimate consumer through the retailer is also once and the same. Thus, it will definitely lead to confusion dud to deception practised by the defendants with ulterior motives and interfere with the fair name, reputation business and profits of the plaintiff and interfered with its proprietorial rights of the registered trade mark and use of the same.
6F. The plaintiff further submits that the first defendant is also selling idly cookers under the brand name of "Classic" Idly cookers with a different letter pattern and also under the name "Murugan". The bills produced by the defendant does not reflect a true and proper sale of idly cookers. The bill do not disclose the brand name, which was used for the sale, whether it was sold under the brand name "Classic" or "Murugan". From the above, it is clear that the defendant is using the trade name "Classic" which is admittedly his brand and is simultaneously using deceptively the registered trade mark of the plaintiff "Murugan" with its artistic design, with sole intention of passing his goods deceptively to consumers and cashing in on the good name of the plaintiffs product in the market. Idly cookers are also covered under Class 11 under which the plaintiff has a registered trade mark and is doing business in manufacture and sale of the same.
6G The plaintiff submits that the sales turnover of the plaintiff is over Rs. 14.00 crores which is mostly out of pressure cooker products, which includes idly pressure cookers, which will prove the quality of the plaintiffs product, and its reputation and goodwill. The defendants have started business only in 2010. The defendants have not explained as to why they resorted to use of the name "Murugan" for its product when the defendants claim their product brand in "Classic". Thus the fraudulent intentions to cash in on the plaintiffs reputation by the defendants to sell their products deceptively as "Murugan" is clear, as otherwise there is no reason for the plaintiff to have the name "Classic" as its brand name instead use another brand name of "Murugan".
7. Mr. K. Ramu, learned counsel appearing for the applicant/plaintiff, relying on the decision of the Hon’ble Apex Court inSampath Kumar v. Ayyakannu, reported in 2002 (4) CTC 189 : (AIR 2002 SC 3369)and a Division Bench decision of this Court inT.T.K. Pharama Ltd. v. AG. Rohapharam, reported in 1998 (II) CTC 108 (Mad), submitted that the proposed amendment is within the ambit of Order6, Rule17of the Code of Civil Procedure. Learned counsel for the applicant/plaintiff further contended that written statement is yet to be filed by the respondents/defendants, hence, it is only a pretrial amendment and the proposed amendment would not change the character of the suit or the cause of action. On the said facts and circumstances, merely because the proposed amendment is lengthy, having certain paragraphs to be added, the respondents/defendants cannot legally raise any objection against the proposed amendment.
8. However, Mr. M.K. Rao, learned counsel appearing for the respondents/defendants strenuously contended that the proposed amendment would change the character of the suit and according to the learned counsel for the respondents, the applicant/plaintiff is not entitled to make out a new case, by way of the proposed amendment.
9. The Hon’ble Supreme Court inSampath Kumar v. Ayyakannu, reported in 2002 (4) CTC 189 : (AIR 2002 SC 3369, para 7), while considering the scope of Order6, Rule17of the Code, held that though the suit relating to the Civil Appeal was filed for permanent prohibitory injunction from dispossession of agricultural land against the defendants therein, the amendment petition move by the plaintiff, pending the suit, alleging dispossession by defendant and seeking amendment for the relief of declaration of title and re-delivery of possession could be maintainable. If it is permissible for plaintiff to file independently suit, the same relief could be prayed in a pending suit. Hence, allowing such amendment curtails multiplicity of legal proceedings, as pleadings can be amended at any stage of the proceeding for determination of real questions in controversy. The Hon’ble Apex Court, in this regard, has further held as follows :
"In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the Trial Court it was one to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the Trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiffs revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings."
It has been categorically held that pretrial amendment shall be allowed more liberally than the amendment sought for after the commencement of the trial or after the conclusion thereof. Though amendment ordered relates back to the date of institution of suit, interest of party should be protected. In this regard, the Apex Court has found as follows :
"Pretrial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof."
10. As held by the Hon’ble Supreme Court, no straight jacket formula could be laid down in deciding the scope of any proposed amendment. In the referred case, amendment was sought for about 11 years after the date of institution of the suit. However, it was held that though the plaintiff was not debarred from instituting a new suit, seeking relief of declaration of title and recovery of possession on the same basic facts, by way of amendment of the plaint, for seeking relief in the suit for permanent prohibitory injunction could be maintainable. In order to avoid multiplicity of suits being filed, it would be a sound exercise of discretion to permit amendment, seeking the relief of declaration of title and recovery of possession in the pending suit. The merits of the averments sought to be incorporated by way of amendment could not be judged at the stage of allowing the prayer for amendment, since the same would be possible only after the trial.
11. InT.T.K. Pharama Ltd. v. AG. Rohapharam, reported in 1998 (II) CTC 108, a Division Bench of this Court held that the cardinal principles to be followed while deciding a petition filed under Order6, Rule17, CPC are based on the well settled proposition of law, which makes it clear that amendment of pleading is
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permissible at any stage, provided it does, not (i) change nature of suit, (ii) takes away right accrued in favour of opposite party and (iii) cause substantial prejudice to the other, side. As a fundamental rule, multiplicity of litigation based on same cause of action is deprecated or discouraged. If defect can be cured by amendment fresh round of litigation between parties entailing waste of time, money and energy and burden upon judicial institution should be discountenanced. 12. The Rulings of the Hon’ble Apex Court and the decision rendered by a Division Bench of this Court referred to above are squarely applicable to the facts and circumstances of the application on hand. 13. It is well settled that the court should be liberal, while deciding a pretrial amendment sought for. In the instant case, admittedly, the amendment sought for is at the pretrial stage and written statement has not been filed by the respondents/defendants in the suit. Therefore, it is only at the pretrial stage. Though the proposed amendment is lengthy, the burden is upon the plaintiff to establish the averments made by way of amendment and it is open to the respondents/defendants to raise all defence that are available, by way of written statement. Hence, this Court is of the view that the proposed amendment would not prejudice the rights of the other party, namely, the respondents/defendants. Though the proposed amendment is lengthy, it would not make out any change in the nature of the suit and does not take away the accrued right of the other party. Therefore, this Court is of the view, to allow the application without prejudice to the rights of the respondents/defendants, to meet the ends of justice and to avoid multiplicity of proceedings, by filing another suit. 14. In the result, this application is allowed and the applicant/plaintiff is permitted to amend the plaint by incorporating paragraphs 6A to 6G, following the procedure known to law. However, it is made clear that the respondents/defendants, are at liberty to raise all their defence, by way of filing written statement. No order as to costs. Petition allowed.