THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No.2899 OF 2008 DATED:22-02-2011 Between: Mamtha Sales Agencies, Hyderabad. .... PETITIONER And Shiv Kumar Makhija & another. .... RESPONDENTS ORDER: This Civil Revision Petition is directed against the order, dated 24.06.2008, in I.A.No.1950 of 2008 in O.S.No.527 of 2006 on the file of the learned II Additional Chief Judge, City Civil Court, Hyderabad, wherein the said application filed by the petitioner herein-plaintiff under Order XIV Rule 5 CPC for recast of issues, was dismissed. 2. None appeared for the petitioner and no representation is made on his behalf on 21-02-2011 and even today. Heard learned counsel for the respondent. Perused the records. 3. Petitioner herein filed the suit for permanent injunction seeking to restrain the defendants from committing infringement of plaintiff trade market/trade name ‘Mamtha Savings Agencies’ by continuing to carry on their business under the name ‘Mamtha Home Appliances’ or any similar trade name with combination of ‘Mamtha’. Defendants filed a written statement contesting the suit. 4. Based on the pleadings, the trial Court framed the following necessary issues: 1. Who among the plaintiff and defendants have been using the trade name ‘Mamtha’ and who among them is the prior user? 2. Whether the trademark/name with combination of ‘Mamtha’ is the exclusive trademark of plaintiff? 5. Plaintiff filed I.A.No.1950 of 2008 seeking amendment of the issues and framing an additional issue as stated in the petition. As rightly observed by the trial Court, the issues as originally framed based on the pleadings are sufficient and recast of issues as proposed is not required as the aspects, pertaining to the proposed amendment of issues are duly covered by the original issues. However, the proposed additional issue is not covered by the original issues and the original issue No.3 as to whether the plaintiff is entitled for permanent injunction is a general issue. In view of the specific allegation in the plaint that the defendants are selling goods and providing services so as to make the purchasers believe that they are the goods and services of the plaintiff ‘Mamtha Service Agencies’ and as the said allegation has been specifically denied by the defendants in the written statement, the proposed additional issue ‘Are the defendants selling the goods and providing services so as to lead the purchasers to believe that they are the goods and services of the plaintiff ‘Mamtha Service Agencies’, does arise. Before grant of refusal of the relief of permanent injunction, the finding on the proposed additional issue is to be necessarily recorded. Hence, the proposed additional issue is permitted to be framed. However, the issues already framed do not require amendment, as proposed. 6. In the circumstances, the impugned order is modified to the extent stated above. Accordingly, Civil Revision Petition is disposed of. Interim stay granted on 18.07.2008 stands vacated. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 22nd February, 2011. Tsy