IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.11.2011 CORAM THE HON'BLE MR. JUSTICE VINOD K.SHARMA A.No.4085 of 2011 in C.S.No.399 of 2007 ORDER This application under XIV Rule 8 of O.S. Rules, read with Order VI Rule 17 C.P.C. has been filed, to amend the plaint in C.S.No.399 of 2007 as under: "1) Amend the Short cause title of the plaint by substituting the following address instead of the one given originally in the plaint. "M/s.Rajeshwari Mehandi Center having office at No.4/6, East Cementry Road, Old Washermenpet, Chennai 600 021". 2) Amend the long cause title of the first defndant by substituting the following: Shyam Singh, carrying on business under the name and style M/s.Rajeshwari mehandi Center having office at No.4/6, East Cementry Road, Old Washermenpet, Chennai 600 021. 3) Add at the end of the paragraph No.3 the following: "the word mark "Singh' as also the trade mark 'Singh Special cone', stand registered in the name of the plaintiff vide trade mark No.1375500 and 1016754 respectively. The certificates of registration are filed with the application as Documents No.19 & 20 respectively. 4) Add paragraph 27A and 27B after paragraph 27 of the plaint as follows: 27A The plaintiff states that the sale of Mehandi using the plaintiff's registered word mark 'Singh by the defendants is wrongful, illegal and fraudulent. The defendants by use of the registered word mark 'Singh' in respect of Mehandi have infringed the plaintiff's statutory right. The defendants by use of the registered word mark 'Singh' in relation to goods similar to that of plaintiff which is sold under the registered mark 'Singh' by the plaintiff is infringing the plaintiff's registered word trade mark and the use of the registered word mark 'Singh' by the defendants are likely to cause confusion on the part of the public. 27B The use of the mark 'Singh' by the defendants is identical with and/or similar to the plaintiff's registered trade mark 'Singh and is used in relation to the similar goods. The plaintiff's trade mark has acquired tremendous reputation and the use of the mark 'Singh by the defendants ar without any due cause and is to take unfair advantage of the plaintiff's registered marks and is detrimental to the distinctive character and reputation of the plaintiff's registered trade marks 'singh', 'singh special zone'. 5) Add prayer aa) after prayer a) of the plaint as follows: aa) Permanent injunction restraining the defendants, their servants, agents, or assigns from in any manner infringing the plaintiff's registered mark 'Singh, by using the offending mark 'Raju Singh' and/or 'Ram Singh' or Sindh Dulhan and/or any other marks which is similar to the plaintiff's registered mark 'Singh' by manufacturing, selling or offering for sale or in any manner advertising the same in connection with mehandi products. 6) Substituting the following in the statement of address column in the place of the first defendant "M/s.Rajeshwari Mehandi Center having office at No.4/6, East Cementry Road, Old Washermenpet, Chennai 600 021". 2 It is the contention of the learned counsel for the applicant/plaintiff, that the amendment is necssitated because subsequent event, of grant of registration. The amendment does not changes the cause of action, and is necessary to determine the real controversy in the suit between the parties. 3 The application, is opposed by the learned counsel for the defendants/non applicants, by contending that the plaintiff by way of amendment, wants to change the cause of action, as the suit filed was for passing off, whereas now, it is being converted into infringement of trade mark. 4 It is also the contention of the learned counsel for the defendants/non applicant, that now the plaintiff wants to rely on new trade mark, which cannot be permitted in law, as it will prejudice the right of the defendants/non applicants in the suit. 5 It is further contention of the learned counsel for the defendants/non applicant, that the application is not bonafide as admittedly, registration was granted in the year 2008, whereas the applicant, has moved this application in the year 2011 after the rectification of earlier mark, on an application moved by the defendant/non applicant. 6 On consideration, I find force in the stand of the applicant/plaintiff. It is well settled law that this Court at the time of deciding the amendment application, cannot go into the merits of the amendment, to see whether the amendment is likely to succeed or not. 7 The only question to be determined, is as to whether the amendment sought for, is necessary to determine the real controversy between the parties. 8 The question whether the suit for passing of can be converted into infringement of right of registration stand decided by the Hon'ble Gujarat High Court in the case of Bhandari Products vs. Giriraj Enterprises and another (2008(36) PTC 558 (Guj.) wherein the Hon'ble Gujarat High Court has laid down as under: "18 I have considered the aforesaid facts of the case. In this case, the suit was filed on 8.6.2005 on the ground of passing off a trade mark and infringement of copyright because on that day the plaintiff did not obtain registration of trade mark. However, as contended in the amendment application the Registrar of Trade Mark has granted registration certificate of trade mark only on 14.6.2005 and therefore the present amendment can be allowed on the basis of the events which have happened subsequent to the suit. This Court, therefore, in the interest of justice has to take notice of subsequent events and grant appropriate relief because in the trade mark suits the relief of passing off as well as infringement are very vital reliefs to be prayed by the plaintiff. 19 This Court also refers to the judgment of the Hon'ble Supreme Court in the case of Rameshwar and others v. Jot Ram and another (1976)1 SCC 194 particularly para 9 on page No.200 which read thus: 19.1 The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the reliefs is moulded, varied or reshaped in the light of updated facts. SUBSEQUENT EVENTS 19.2 The basic rule of every litigation is that the rights of the parties must be determined on the basis of the date of filing of the suit. 19.3 The Court may, however, take notice of subsequent events inorder to shorten litigation, to preserve, protect and safeguard rights of both the parties and to subserve the ends of justice. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 20 In this case, I also rely on the judgment of this Court in the case of Ganchi Mohmadbhai Kaduji v. State of Gujarat in Special Civil Application No.7962 of 2004 delivered on 16.11.2006 where this Court has in para 18 also considered the judgment of the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal v. K.K.Modi (supra) and also relied on another judgment of the Hon'ble Apex Court in the case of Baldev Singh and others v. Manohar singh and another, 2006(6) SCC 498 particularly paragraph Nos.8 and 9 of the said judgment and ultimately in paragraph Nos.25 to 25.6 this Court considered the principles of Order VI Rule 17 of the C.P.C. and the principles in connection with the amendment of pleadings. The said paragraphs are reproduced as under: 25.1 The object of the Rule is that the courts should try the merits of the cases that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side (P.H. Patil v. K.S.Patil, AIR 1957 SC 363). 25.2 Ultimately, courts exist for doing justice between the parties and not for punishing them, and they are empowered to grant amendments of pleadings in the larger interest of doing full and complete justice to the parties. (Ram Manohar Lal v. National Building Material Supply, (1969)1 SCC 869). Provisions for the amendment of pleadings are intended for promoting the ends of justice and not for defeating them (Ganesh Trading Co.v. Moji Ram, (1978)2 SCC 91). 25.3 If the amendment is necessary to decide the real controversy between the parties, the amendment should be allowed even though the court may think that the party seeking the amendment will not be able to prove the amended plea. This is the basic test which governs the courts' unchartered powers of amendment of pleadings. No amendment should be allowed when it does not satisfy this cardinal test. (per P.B.Mukharji, J. In Narsingh Prosad v. Steel Products Ltd. AIR 1953 Cal 15). 25.4 Power to allow amendment should be liberally exercised. The liberal principle which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be readily granted." 25.5 Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Dondapati Narayana Reddy v. Duggireddy, (2001)8 SCC 115." 9 The reading of the amendment prayed for shows that the amendment is necessary for determining the real controversy between the parties. The amendment also does not alter or substitute the cause of action, as the suit ealier was also for infringement of mark used by the plaintiff/applicant. 10 It cannot be said that prejudice is going to cause to the defendants/non applicant as contended, as it is always open to the defendants to take all pleas against new facts pleaded by way of amendment. 11 Consequently, this application is ordered. The plaintiff/ applicant is directed to file amended plaint within two weeks of the receipt of certified copy of this order. No costs. vaan