JUDGMENT
Usha Mehra, J.
(1) Parties are related to each other. They are exerting their rights over the marks Chabi and KOHINOOR. The respondents are the sister and brother-in-law of the petitioner. The affairs of the firm known as M/s Kohinoor Paints Faridabad Ltd. was looked after by Shri Trilok Singh Sachdeva and his family members. The petitioner is the son of said Shri Trilok Singh Sachdeva. Shri Trilok Singh Sachdeva died on 2nd November,1992. It has been the case of the petitioner as set up in the plaint that he got a shock on the death of his father. He, therefore, did not object to the use of the mark Chabi and Kohinoor by the respondents. There was, however, clear understanding between the family members i.e. the petitioner and respondents that as and when the petitioner’s own business interest require, the respondents shall forthwith cease and desist from using the mark Chabi and KOHINOOR. The petitioner is holding more than 47% share in the company. The dispute within the family started when the petitioner informed the respondents that he was ready with the infrastructure to do his business, therefore, the respondent should cease and desist from using the mark Chabi and KOHINOOR.
(2) It was further the case of the petitioner that the respondents instead of desisting from using these marks issued public notice on 8th October,1994 claiming to be the Proprietor of trade mark KOHINOOR/ and Chabi CHHAP. They also served a legal notice on the petitioner on 10th October,1992 claiming to be the owner of trade mark Chabi and Kohinoor and copyright in the carton. They ignored the terms of the ed of assignment dated 19th June,1992. The respondent tried to involve the petitioner in civil and criminal litigation. Apprehending the mischievous action on the part of the respondent, the petitioner filed a Civil suit.
(3) The respondents filed the written statement. With the written statement the respondents also filed their counter claim. In the written statement the respondents’ plea was that the Company M/s Kohinoor Paints Faridabad (P) Ltd. is not an individual like plaintiff who is the registered Proprietor of the trade mark Chabi as well as of unregistered trade mark KOHINOOR. The respondent challenged the deed of assignment dated 19th June,1992. The recordal of the deed of assignment by the Registrar was also challenged by the respondent. The respondent in the meantime filed a cancellation petition against the order of the Registrar in the High Court. That petition was listed as CO.No.19/94. Vide order dated 19th September,1995 High Court cancelled the recordal of the said deed of assignment on the ground that Registrar while passing that order did not afford opportunity to the respondents (petitioner in that case).
(4) Petitioner filed replication to the written statement and reply to the counter claim. In reply petitioner pleaded complete history of the trade marks of the predecessor in interest and title. However, due to cancellation of recordal of assignment by the High Court in the said rectification proceedings, petitioner wanted to explain the facts in detail and to give complete particulars about the adoption and use of the trade marks by the predecessors in interest of the petitioner and to explain as to how petitioner acquired proprietorship right of the trade mark Chabi and Kohinoor under the common law apart from becoming registered proprietor of trade mark Chabi by virtue of deed of assignment dated 19th June,1992. It was due to changed circumstances i.e. due to the decision of the High Court in rectification petition No.19/94 that petitioner wanted to amend his plaint. He, therefore, filed an application under Order 6 Rule 17 of Civil Procedure Code . The amendment sought was contested by the respondent on the ground that if allowed it would amount to setting up a new case. Instead of claiming the relief on the basis of deed of assignment, the petitioner was now trying to set up his claim superior to that of the respondent firm which amounts to setting up a different cause of action.
(5) That by the impugned order the Trial Court upheld the objection of the respondent and dismissed the application on the ground that by amendment the petitioner was trying to set up a new case.
(6) Aggrieved by the impugned order, present petition has been preferred, inter alia, on the ground that by way of amendment petitioner only tried to explain in detail the facts. Amendment sought does not amount to setting up a new case. In fact the amendment was clarificatory in nature. Most of the facts are already on record, only the past history of the family in details, the petitioner wanted to incorporate. By amendment the petitioner wanted to add the name of predecessors in interest and title. In fact most of the facts which the petitioner now wanted to incorporate have already been mentioned in the replication and in reply to the counter claim filed by the petitioner. The amendment was sought to bring more explicitly those facts.
(7) Before dealing specifically with the amendments sought to be incorporated by the appellant, we must understand that now the law is settled as to in what circumstances the amendments can be allowed. In umpteen number of cases, the Apex Court has held that the amendment should be allowed liberally unless by such amendment the right which accrued in favour of the other party has not been taken away or such amendment, if allowed, would change the cause of action and the case already set up. Therefore, while considering the amendments sought by the petitioner we have to keep these two principles in mind. Any amendment which is explanatory in nature even if it is inconsistent with the already set up plea and is in a way in contradiction to the case already set up, still such an amendment can be allowed. Now we have to see whether the additions sought vide para No.4 of the application are such that if allowed it would take away any of the right accrued in favour of the respondent or would totally change the cause of action already set up. Admittedly, the basic plea of the appellant in the suit was the deed of assignment in his favour. His basic thrust for claiming the relief in suit was that he acquired the right of these trade marks by virtue of the deed of assignment. He also admitted that the trade mark Chabi and Kohinoor belonged to his predecessors in interest who owned the company M/s Kohinoor Paints Faridabad (P) Ltd. The question for consideration is having made these statements, can the appellant be permitted now to add by way of explanation that the trade mark belonged to an individual and not to the company or that he has superior title than the respondent. Mr.Amarjit Singh contended that the case of the appellant had always been based on the fact that the registered trade mark Chabi and unregistered trade mark Kohinoor belonged to the partners of the firm. It was partner of the firm who executed the deed of assignment in his favour. He claimed his right through the predecessors in interest. Moreover, he had also set up his case based on infringement and passing of. His case was never solely based on the deed of assignment. It was also based on common law right. In this regard he drew attention of this Court to para No.8, 13, 24 and 26 of the plaint. In para No.8 it is mentioned that :- “THE plaintiff not only acquired statutory rights to the exclusive use of the trade mark Chabi but also acquired all rights, interest and title in the goodwill of the mark acquired on account of use under the common law during the past years through its predecessor in interest and title.”
(8) In para No.13 of the plaint, it was mentioned that :- "THE plaintiff has got an exclusive right to the use of the trade mark Chabi as well as the trade mark Kohinoor in respect of the goods of his manufacture and sale under the common law as well as by virtue of the registration granted under the provisions of Trade and Merchandise Marks Act,1958." (9) To the same effect are the pleadings in para No.24 where it is mentioned that :- "THE defendants are further committing acts of passing of by using the trade mark(s) Chabi and/or Kohinoor jointly or severally in respect of the goods of their manufacture and sale in violation of plaintniff's common law right. " (10) In para No.26 of the plaint, it is mentioned that :- "THEdefendant is passing off and or are enabling the others to pass off its goods and business as and for the goods and business of the plaintiff."
(11) By referring to these paras of the plaint Mr.Amarjit Singh contended that the case of the appellant had always been based on assignment as well as passing off. By the amendment, the appellant only wanted to add in details the names of his predecessor in interest. This can be inferred by reading the proposed amendment sought in para No.4 of the application. The proposed amended para No.4(a), (b), (c), (d), (e) and (f) though wanted to be inserted for the first time but reading of these show that the appellant wanted to trace out the history of his predecessor in interest and title from the year 1942 when Mr.Sobha Singh was trading as Kohinoor Paints Chemical Works. He adopted the trade marks Chabi and Kohinoor in respect of the goods manufactured namely paints, varnishes, enamels, dry & liquid colours. The mark Kohinoor was also adopted by Mr.Sobha Singh as key, leading and essential portion of his firm name. By para 4(b) he wanted to point out that the said Mr.Sobha Singh converted the sole proprietorship firm into a partnership firm. He wanted to gi names of the partners who became partners of the firm from time to time subsequent to the yea1948. In para No.4(c) he wanted to trace out the history from the year 1974 of M/s Kohinoor Paints Pvt.Ltd. In proposed para No.4(d) he wanted to explain as to what happened in the year 1979 when Mr.Ajit Singh, S/o Mr.Sobha Singh, one of the Directors of M/s Kohinoor Paints Pvt.Ltd. died. In proposed para No.4(e) he wanted to add the history as to how the division took place in the family in the year 1981 and what resolution was passed at the time of said division. In proposed para No.4(f) he wanted to explain as to what consequences followed on account of the family settlement which was recognised by the share holders and Directors of M/s Kohinoor Paints Pvt.Ltd. Regarding proposed para No.4(g) to para No.4(u) the contents of these paras form part of the replication and the written statement filed to the counter claim of the respondent. Therefore, vide para 4(g) to 4(u) nothing new is going to be added. These paras already form part of the pleadings. There is no doubt that the reading of proposed paras No.4(a) to 4(u) show that the appellant is trying to trace the history of these trade marks, history of the company and of the family division etc. It is also a fact on record that proposed paras 4(g) to 4(u) already formed part of the pleadings. So far as the proposed paras 4(v), (w) and (x) nothing new the appellant wants to incorporate. In para 4(v) the appellant has asserted his right under the common law to the trade mark Chabi and KOHINOOR. He says his rights are much interior and superior to the rights claimed by the respondent. These rights are also established by virtue of deed of assignment dated 19th June,1992. Therefore, he based his action for infringement thereof in addition to the action for passing off. After having said so in para No.4(w) the appellant mentioned that he became the proprietor of trade marks Chabi and Kohinoor which has continuously and extensively been used through its predecessors in interest and title since the year 1942 in the manner detailed above meaning thereby in para No.4(a) to 4(u) and in para No.4(x) he wanted that these have not used by the respondent. Harmonious reading of these paras with the case already set up by the appellant in his pleadings it cannot be said that by these amendments or additions he wanted to take away any right accrued in favour of the respondent. In fact nothing new has been added by virtue of which any right of the respondent would be taken away nor these facts constitute setting up a new cause of action. The facts as mentioned in para No.4(g) to (4(u) already form part of the pleadings. The rest of the paras which I have summarised above show that these are by way of explanation and at places the appellant has tried to trace out the history from 1942 and how the family settlement took place. By mentioning all these facts, it cannot be said that the appellant is trying to set up a new case or a different cause of action nor it can be said that the facts which the appellant now wants to incorporate would amount to withdrawl of any admission already made. I have already mentioned above that besides basing his claim on the deed of assignment, the appellant also asserted his right based on common law right on infringement and passing off. Therefore, it cannot be said that the case of the appellant was solely based on the deed of assignment. Reading of his pleadings show that his case is based on two distinct causes of action i.e. infringement and passing off.
(12) MR.CHETAN Sharma’s contention that since the entire case of the apellant was based on deed of assignment and recordal of the same having been set aside, the present facts would amount to withdrawl of admissions already made. To my mind this contention has no force. Nor at this stage it can be said that the appellant did not disclose all the facts. The contention of Mr.Chetan Sharma that in the resolution culminating into family settlement the name of the appellant did not figure, at this stage cannot be gone into. This court is not touching the merits of the case. It is only ceased of the matter whether the impugned order be sustained or set aside, nor this Court is called upon to declare whether the appellant acquired any right, title or interest in the trade marks by virtue of family settlement or deed of assignment or of passing off. That touches the merits of the case. That is beyond the preview of this Court. This Court at this juncture cann’t say that the deed of assignment was forged or bogus. I also find no merits in the contention of counsel for the respondent that the suit is not based on the common law right or that ‘Will’ executed by late Mr.Trilok Singh dated 2nd April,1992 is of no consequence for the determination of the issue before the Court.
(13) Appellant, to my mind, is trying to overcome his defective pleadings. This is permissible and in this regard reference can be made to the Supreme Court decision in the case of M/s Ganesh Trading Company Vs. Moji Ram, where the Court observed that :- "DEFECTIVE pleadings are general curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fee, which may be payable, or, of costs of the other side are complied with. It is only only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings. (14) The observation of the Supreme Court in the above case aptly apply to the facts of this case. Even if we presume that all facts had not been pleaded earlier by the appellant, he cannot be debarred from pleading the same now. It cannot be said that no cause of action had been set up in the plaint or incorporating new facts the appellant was trying to bring out a new cause of action. To the same effect are the observations of the Supreme Court in the case of Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil & ors., . In this Case the court observed that :- "AMENDMENTS should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused." (15) In this case the amendment application show that the respondents were not taken by surprise, nor were they asked to meet a totally new case. Therefore, such an amendment could not amount to introducing a new case. In the present case also in the replication and reply to counter claim of the respondent, the appellant has already spell out these facts. By merely adding facts in details or elaborating them or tracing out the history of the family or of the trade marks and as to how division in the family took place, to my mind, will not constitute setting up a new cause of action. Nor it would amount to setting up a new case. Since I have already observed above that the case of the appellant did not solely based on the deed of assignment, therefore, by adding these facts it would not amount to withdrawing any admission. Even if it amounts to be so, it would not debar the appellant to incorporate these facts. In this regard reference can be made to the decision of the Supreme Court in the case of Panchdeo Narain Srivastava Vs. Km.Jyoti Sashay and anr., where the Court observed that :- "AN admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn."
(16) In this view of the matter, the contention of Mr.Chetan Sharma that in the plaint, the case as set up was based on deed of assignment indicating that the trade marks belonged to the firm and not to the individual has no relevance at this stage. As already observed the Supreme Court has gone to the extent of saying that even an admission can be explained away. In the present case, appellant by seeking the amendments is only trying to explain his case which is based on deed of assignment as well as on common law right. The judgments relied by the respondent and cited before the Trial Court in the case of M/s Kalinga Gudakhu Udyog Vs. Konark Gudakhu Factory, 1990 Ptc 216, M/s Modi Spinning & Weaving Mills Co.Ltd. Vs. M/s Ladha Ram & Co., and Addanki Narayanappa and anr. Vs. Bhaskara Krishnappa, , Bhubaneswar Patel Vs. Janak Patel & ors., , Kumaraswami Gounder Vs. D.R.Nanjappa Gounder, and Umsala Bibi Vs. M.Jayaraman, are of no help to the respondent in the facts and circumstances of this case. There cannot be any quarrel with the proposition that if the amendment amounts to setting up a entirely different case then such an amendment cannot be allowed. Similarly if by incorporating inconsistent pleas the effect of substitution will be to displace the opposite party completely from the admission made originally then such an amendment can also not be allowed. But unfortunately that is not the case in hand. The Trial Court in the impugned order has verbatim reproduced the amendment sought in para No.4(a)to 4(x). Reading of the same would show that neither inconsistent pleas have been taken by the appellant nor he has tried to set up a case which is entirely different from the one already set up. Reading of the proposed amendments would show that the appellant was only tracing out the history on record from 1942 of his family and of the trade marks in question. Therefore, by furnishing the details of his predecessor in interest as well as of the title and the trade marks, it cannot be said that the appellant was trying to build up a entirely different cause of action or a new case. He is not putting up inconsistent pleas the effect of which is to displace the respondents. The respondents in fact can be compensated with costs. I find no merits in the contention of the respondent that since these facts were known to the appellant he ought to have pleaded earlier. By furnishing the details now by way of explanation of the history of predecessor in interest of the appellant and of the trade mark, no vested right of the respondent would be taken away. Therefore, furnishing of these facts which though may have been known to the appellant but the necessity of which arose because of the decision of this Court in C.O.No.19/94 whereby the deed of record was set aside does not mean that the appellant cannot furnish these facts now or he did not come to the Court with clean hands. It is only to avoid any technical objection subsequently, the appellant wants to place on record the facts in details. Therefore, it cannot be said that by non-furnishing of the details earlier and furnishing the details now would take away any right of the respondent. In fact when the appellant filed the replication and written statement to the counter claim of the respondent, the respondents were put to notice about these very facts. Therefore, they now cannot turn around and say that they have been taken by surprise.
(17) As already pointed out above, in various paragraphs of the plaint, the appellant has mentioned that his case is also based on passing off and under the common law. Therefore, it is not correct to contend that the case of the appellant was solely based on the deed of assignment. Even at the cost repetition, it must be mentioned that in the plaint and in particular paras No.8, 9, 13, 18, 24, 32 the case of the appellant appears to be based on two distinct cause of actions namely infringement and passing off. In order to highlight these two causes of actions the appellant wants to place on record the detailed facts. Hence, it cannot be said that by bringing detailed facts on record, the appellant is trying to set up a new case.
(18) Whether the respondent is a predecessor in title is a question touching the merits of the case. At the stage of disposing this application merits of the same cannot be gone into. Contention of Mr.Chetan Sharma that amendment was sought after the handwriting expert gave his report has also no force. This argument appears to have not been taken up before the Trial Court. That is why in the impugned order no mention of the same can be find. Further whether the trade marks belong to the company or to an individual would be decided on merits. That has nothing to do with the disposal of this application.
(19) Lastly, Mr.Chetan Sharma took the objection regarding the maintainability of this revision petition on the ground that under Section 115 of Civil Procedure Code the revision lies in a case of jurisdictional error. Since in this case the Trial Court exercised its jurisdiction correctly, therefore, this Court cannot interfere with the same. I am afraid this argument is also without substance. The jurisdictional error can be inferred when this Court finds that the amendment has been wrongly rejected. In that eventuality it can be said that the Court below failed to exercise the jurisdiction vested in it by rejecting the amendment on flimsy grounds. This Court after considering the facts of this case came to the view that the amendment sought was only explanatory in nature which the Trial Court ought to have allowed. Since he failed to do so hence jurisdictional error. Part of these facts were already on record in the form of replication and written statement. Nothing new was going to be placed on record. Hence, the Trial Court committed error in rejecting the same. It is in these circumstances that the Court can not shut its eyes nor can refuse to exercise its right to interfere under Section 115 of CPC.
(20) For the reasons stated above, the impugned order cannot be sustained. The same is accordingly set aside. Amendment application filed by the appellant allowed subject to payment of Rs.5,000.00 as costs.