JUDGMENT
Manmohan Sarin, J.
1. Plaintiff instituted this suit for permanent injunction on 30.9.1997, alleging infringement of his trade mark “ALPS” in respect of cosmetics goods. Plaintiff also sought rendition of accounts. Plaintiff claims that defendant is passing off his goods as that of the Plaintiff.
2. Defendant has filed his written statement and has denied the allegations made in the plaint. Defendants claim continuous use of the trade mark ALPS since 1971 in relation to wide range of cosmetics by virtue of the registration of the mark under No. 273384-B in respect of lipsticks in Class 3.
3. Defendant has also filed his counter claim seeking, inter alia, permanent injunction against the plaintiff from using the trade mark ‘ALPS’ and also rendition of accounts.
4. By the present application under Order VI, Rule 17 of the Code of Civil Procedure, defendant seeks to amend para 8 of the written statement and the pleadings to the same effect in the counter claim. Para (8) of the written statement filed by the defendants reads under:
“8. That after the execution of the retirement deed/dissolution deed dated 31.3.1995 and the deed of agreement dated 31.3.1995, the defendant firm reconstituted the firm vide partnership deed dated 1.4.1995 comprising of two partners namely Shri Manohar Lal Gulati and Shri Rakesh Kumar Gulati.”
5. By the present application defendant seeks an amendment to the effect that the defendant thereafter reconstituted the firm by the Partnership Deed dated 31st March, 1995 instead of Partnership Deed dated 1.4.1995. It is claimed that the date of the Partnership Deed 1.4.1995, was erroneously mentioned and, in fact, Shri Rakesh Gulati joined the firm on 31.3.1995. Reliance has been placed on Form No.’B’ issued by the Registrar of Firms wherein the date of joining of Shri Rakesh Kumar as a partner in the partnership firm is intimated as 31.3.1995; and also on Form ‘C’ with the registration No. 359/68 wherein it is mentioned that Mr. Jagdish Lal Gulati retired on 31.3.1995 while Shri Rakesh Kumar Gulati joined the firm on 31.3.1995 itself.
6. Learned Counsel for the plaintiff has vehemently opposed the prayer for amendment. It is urged that the Partnership Deed was dated 1.4.1995 and this was the defendant’s case before the Sales Tax, Income Tax and Trade Mark Authorities. The Partnership Deed dated 1.4.1995 is on record. It is urged that the attempt to alter the date to 31.3.1995 is an attempt at fabrication and a fraud on the Court. Reliance has also been placed on the Certificate bearing No. 380/96 dated 15.2.1996, of the Registrar of Firms, wherein the date of joining of Shri Rakesh Gulati is shown as 1.4.95 and the reference is the Partnership Deed dated 1.4.1995. Learned Counsel argued that having filed the Partnership Deep dated 1.4.1995, defendant cannot be permitted to alter and fabricate the date to 31.3.1995. The Partnership Deed dated 31.3.1995 had been belatedly filed before the Registerar of Firms. Defendant cannot be permitted to file the altered deed dated 31.3.1995 with the Registerar of Firms and then place reliance on the certifications obtained. This is a mala fide attempt to over-reach the Court. The amendment is being sought for an oblique and extraneous purpose to gain advantage in other litigations.
7. Defendant, in the rejoinder to the reply filed, has sought to explain the position by stating that stamp paper for the Deed was purchased on 30.3.1995, which was typed on 31.3.1995 with the date of execution as 1.4.1995. Photocopies of the same were taken. However, on 31.3.1995 itself with the consent of the partners the date was altered to read 31.3.1995, to be in consonance with the date on which it was executed. It is stated that erroneously the Partnership Deed with the date 1.4.1995 was filed with the Registrar of Firms and other authorities. Learned Counsel for the defendants urges that the defendant is entitled to correct this factual error and the position has been clarified with the different authorities before whom also the correct Partnership Deed bearing the date 31.3.1995 has since then been filed.
8. The question to be considered in these facts is whether the defendant should be precluded from correcting what he claims to be an error by placing on record the Partnership Deed bearing the date 31.3.1995. However negligent or careless the said mistake may have been, the law in this regard is well-settled. Amendments are to be liberally allowed unless they are mala fide or seek to alter the very nature of the case. In the instant case, it is not in dispute that Manohar Lal Gulati and Rakesh Kumar Gulati are the two partners of the defendant firm. The contents of the earlier Partnership Deed dated 31.3.1995 and the one dated 1.4.1995 are the same. There is no other change except the date. As far as Shri Jagdish Lal Gulati is concerned, there is no dispute with regard to the factum of his retirement from the partnership of defendant No.1 by virtue of the Dissolution Deed dated 31.3.1995. It is not a case where the rights of Shri Jagdish Lal
Gulati, partner of the plaintiff, are prejudiced in any manner by permitting the amendment. Moreover, it is permissible for the plaintiff to take all the pleas, as may be available at law, and state its version with regard to the change of the date in the Partnership Deeds.
9. Learned Counsel for the plaintiff relied on Heera Lal Vs. Kalyan Mal & Ors., , in support of his contention that the defendant cannot be permitted to withdraw an admission made by seeking an amendment. In other words, it is urged that the defendant, who had himself filed the Partnership Deed dated 1.4.1995 and got the firm registered on that basis, cannot be permitted subsequently to seek an amendment by altering the date in the Partnership Deed and getting the registration on the basis of the changed date of partnership. In my view, this authority would not advance the plaintiff’s case. The ratio decidendi of this judgment is that an admission cannot be permitted to be withdrawn by amendment if it displaces the plaintiff’s case. In the cited case, the defendant had admitted that seven out of the ten properties were joint family properties
and was claiming that only three were his exclusive properties. Subsequently, the defendant sought to claim that all the ten properties belonged to him. The present case is totally distinguishable on facts. Herein, the defendant’s partners continue to be the same. The factum of the plaintiff’s partner having retired by virtue of the Dissolution Deed dated 31.3.1995 from the erstwhile firm is not in dispute. Accordingly, the change in the amendment does not, in any manner, displace the plaintiff’s case.
10. The case is at its initial stage. The amendment sought does not alter or change the nature of the case. The defendant has offered an explanation for the error, which cannot be simply brushed aside. Besides, the merits and demerits of the proposed amendment are not required to be gone into while considering the amendment application.
11. The application is allowed, subject to payment of cost of Rs.2,500/- to be paid by the defendant. Defendant to file the amended written statement and counter claim within six weeks.
Application allowed with costs.