Case Note & Summary
The plaintiff, Rasiklal Manikchand Dhariwal, Karta of M/s. R.M. Dhariwal (HUF) and others, filed a suit (Suit No. 574 of 2004) against Kishore Washwani, proprietor of M/s. M.S.S. Food Products, seeking a perpetual injunction restraining the defendant from passing off goods under the mark 'Malikchand' which was deceptively similar to the plaintiff's registered trade mark 'Manikchand'. The suit was filed on 3.2.2004, and an ex-parte interim application (Notice of Motion No. 606 of 2004) was moved. During the pendency of the suit, the plaintiff learned that the defendant had assigned the trade mark 'Malikchand' to his nephew, Nitesh Ashok Wadhwani, of M/s. M.S.S. Food Products. Consequently, the plaintiff withdrew the notice of motion with liberty to take fresh proceedings. In March 2004, the assignee (proposed defendant No. 2) filed a suit (Civil Suit No. 8A of 2004) before the District Judge, Mandaleshwar, Madhya Pradesh, against the plaintiff, alleging that the plaintiff's mark 'Manikchand' was deceptively similar to 'Malikchand'. The plaintiff then took out a chamber summons under Order 6 Rule 17 of the Code of Civil Procedure, 1908, seeking to amend the plaint to implead the assignee as defendant No. 2 and to incorporate the facts of the assignment and the subsequent suit. The defendant opposed the amendment, arguing that it would change the nature of the suit and cause prejudice. The court held that the assignment and the filing of the suit by the assignee were subsequent events that necessitated the amendment to effectively adjudicate the dispute. The court noted that the amendment did not change the nature of the suit, which remained a passing off action, and that no prejudice would be caused to the defendant as the assignee would be joined as a party. The court allowed the chamber summons, permitting the plaintiff to amend the plaint as prayed, with costs of Rs. 5,000 to be paid to the defendant.
Headnote
A) Civil Procedure Code - Amendment of Pleadings - Order 6 Rule 17 - Subsequent Event - Assignment of trade mark by defendant to his nephew during pendency of suit and filing of a suit by assignee against plaintiff constitute subsequent events justifying amendment of plaint to implead assignee and incorporate new facts - Held that amendment is necessary for effective adjudication of dispute and does not cause prejudice to defendant (Paras 1-8).
Issue of Consideration
Whether the plaintiff is entitled to amend the plaint to implead the assignee of the trade mark and to incorporate subsequent events arising from the assignment and the filing of a suit by the assignee.
Final Decision
Chamber summons allowed. Plaintiff permitted to amend the plaint as prayed. Plaintiff to pay costs of Rs. 5,000 to the defendant.
Law Points
- Amendment of plaint
- Order 6 Rule 17 CPC
- subsequent event
- impleadment of assignee
- passing off
- trade mark assignment
Case Details
Chamber Summons No. 1 of 2005 in Suit No. 574 of 2004
Mr. Ravi Kadam with S.A. Diwan i/by M/s. Mulla & Mulla CB & C for Plaintiff; Mr. V.V. Tulzapurkar, Sr. Counsel, with Mr. Virag Tulzapurkar and Hemang J. Engineer i/by M/s. Gordhandas & Fozdar for Defendant; Mr. I.M. Chagla, Sr. Counsel, with Janak Dwarkadas, Sr. Counsel, S.Purohit i/by V.A. Bhagat for proposed Defendant/Respondent
Rasiklal Manikchand Dhariwal Karta of M/s. R.M. Dhariwal (HUF) & Ors.
Kishore Washwani and Nitesh Ashok Wadhwani (Proposed Defendant No. 2)
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Nature of Litigation
Civil suit for perpetual injunction and accounts in a passing off action relating to trade marks 'Manikchand' and 'Malikchand'.
Remedy Sought
Plaintiff sought amendment of plaint to implead the assignee of the trade mark and to incorporate subsequent events.
Filing Reason
During pendency of suit, defendant assigned the trade mark to his nephew, who filed a suit against plaintiff alleging passing off.
Previous Decisions
Plaintiff had withdrawn an earlier interim application (Notice of Motion No. 606 of 2004) with liberty to take fresh proceedings.
Issues
Whether the plaintiff is entitled to amend the plaint under Order 6 Rule 17 CPC to implead the assignee of the trade mark and to incorporate subsequent events.
Submissions/Arguments
Plaintiff argued that the assignment and the suit filed by the assignee are subsequent events necessitating amendment for effective adjudication.
Defendant opposed, contending that the amendment would change the nature of the suit and cause prejudice.
Ratio Decidendi
Amendment of pleadings under Order 6 Rule 17 CPC is permissible to bring on record subsequent events that are necessary for effective adjudication of the dispute, provided it does not change the nature of the suit or cause prejudice to the opposite party.
Judgment Excerpts
The present chamber summons has been taken out by the plaintiff under order 6 rule 17 of the Civil Procedure Code for carrying out amendment to the plaint.
The said suit came to be filed on 3.2.2004 and an ex-parte application was moved for interim orders being Notice of Motion No. 606 of 2004.
The plaintiffs thereafter withdrew the said notice of motion with liberty to take out fresh proceedings.
In or about March, 2004, the said Nitesh Wadhwani, the proposed Defendant No. 2 filed a suit being Civil Suit No. 8A of 2004 before the District Judge Mandaleshwar in the State of Madhya Pradesh.
Procedural History
Suit No. 574 of 2004 filed on 3.2.2004 for passing off. Notice of Motion No. 606 of 2004 filed for interim relief, later withdrawn with liberty. In March 2004, assignee filed Civil Suit No. 8A of 2004 in Madhya Pradesh. Plaintiff then filed Chamber Summons No. 1 of 2005 for amendment of plaint under Order 6 Rule 17 CPC.
Acts & Sections
- Code of Civil Procedure, 1908: Order 6 Rule 17
