1 WP 3489/2011 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3489 OF 2011 M/s Gufic Limited .. Petitioner V/s M/s Himalaya Drug Company & Anr. .. Respondents Mr. Ventakesh Dhond with Mr. A. Dasgupta i/b Jhangiani Narulla & Associates for the petitioner. Mr. Aniket Virmani with Mr. Kunal Vajani i/b Wadia Ghandy & Co. for the respondents. CORAM : D.G. KARNIK, J. DATE : 5TH JULY 2011 P.C. : 1. Rule, returnable forthwith. 2. Mr. Virmani i/b Wadia Ghandy & Co. waives service for the respondents. 3. Heard counsel for the parties. 4. The petition is directed against an order dated 19th April 2011 passed by the learned District Judge, Thane, rejecting the application of the petitioner (original plaintiff) for amendment of 2 WP 3489/2011 the plaint. 5. The petitioner filed the suit in the District Court at Thane against the respondents for a permanent injunction restraining the respondent no.1 (defendant no.1), its directors, agents, servants and representatives from passing of its goods under the petitioner’s trademark “SHALLAKI” and other consequential reliefs. In the suit, the District Court granted an interim injunction and this Court dismissed the appeal against the order of interim injunction. Appeal against the said decision is pending in the Supreme Court. I am informed at the bar that the Supreme Court has passed an interim order directing the parties to maintain status quo regarding the use of mark. After the order of the Supreme Court, the respondent no.1 made an application in the District Court for amendment of its written statement contending that MMI Corporation, a company incorporated under the laws of Cayman Islands has obtained registration of a trademark in certain labels including “Himalaya PURE HERBS – Shallaki” and that the respondent no.1 was a permitted user of the said trademark of MMI Corporation. The application was allowed. In view of the amendment carried out by the respondent no.1 in its written statement contending that it was a permitted user of the mark which is similar to the mark 3 WP 3489/2011 of the petitioner, the petitioner made an application for amendment of the plaint by which it sought to plead that the registration of the mark “Himalaya PURE HERBS–SHALLAKI” had been obtained fraudulently and by suppressing the material facts from the Registrar and the said mark ought to have been struck of by the Registrar. The application was rejected by the trial Court. That order is impugned in this petition. 6. The District Court appears to have rejected the application principally for two reasons. Firstly, it held that the proposed amendment would be hit by proviso to Order 6 Rule 17 of the Code of Civil Procedure (for short “the Code”). Secondly, it held that under Order 8 rule 9 of the Code no pleadings subsequent to the written statement shall be allowed except with the leave of the Court. The plaintiff, therefore, could have applied for a permission to file a rejoinder to the amended written statement by applying under Order 8 Rule 9 of the Code, but could not have applied for the amendment to the plaint. 7. In my view, both the reasons cannot be sustained. Undoubtedly, proviso to Order 6 Rule 17 of the Code lays down that the Court shall not allow an amendment unless the Court comes to the conclusion that in spite of due diligence the party 4 WP 3489/2011 applying could not have raised the matter which is sought to be introduced by an amendment before the commencement of trial. In the present case, only issues have been framed and no affidavit in lieu of examination in chief has been filed. Consequently, it cannot be said that the application for amendment of the plaint was made after the commencement of trial. 8. As regards the second contention, in my view, what Order 8 Rule 9 of the Code provides is that no pleading subsequent to the written statement of a defendant other than by way of defence or set off to a counter-claim, shall be presented except by leave of the Court. Order 6 Rule 17 of the Code is independent of Order 8 Rule 9. If the application for amendment is allowed, the original pleading is amended and no fresh pleading is filed. The amended pleading cannot be regarded as a fresh or subsequent pleading within the meaning of Order 8 Rule 9 of the Code. For the sake of arguments, if it is assumed that the portion added by an amendment is a subsequent pleading, which in fact is not, the very order of the Court allowing the application of the plaintiff for amendment can be construed as a permission for filing a pleading as provided under Order 8 Rule 9 of the Code. It may also be 5 WP 3489/2011 noted that after the defendant filed its written statement, the Court allowed it to amend the written statement under Order 6 Rule 17 of the Code and not on an application of the plaintiff for leave to file additional written statement under Order 8 Rule 9 of the Code. If the contention of the respondent is accepted that amendment of pleading amounts to additional pleading, which cannot be allowed without permission under Order 8 Rule 9 of the Code, the Court could not even have allowed the defendant to amend the written statement. 9. The amendment to the plaint in the present case became necessary in view of the fact that the defendant had sought to plead, by an amendment, an additional ground that a third party has obtained registration of a mark similar to the plaintiff’s mark and the defendant was the permissive user of the mark of the third party. Since the fact of registration of the mark by a third party and the alleged permission granted by it to the defendant was pleaded subsequent to the filing of the written statement by way of an amendment, the plaintiff ought to have been given an opportunity of amending the plaint. 9. For these reasons, the impugned order is set aside and the plaintiff is permitted to amend the plaint. Amendment shall be 6 WP 3489/2011 carried out within two weeks of receipt of the certified/ authenticated copy of this order. 10. All concerned shall act on a copy of this order duly authenticated by the Private Secretary/Sheristedar of this Court. (D.G. KARNIK, J.)