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2013 (1) TMI 738 - HC - Companies LawInfringement of trade mark - Whether Section 134 of the Trade Marks Act, 1999 oust Section 20 of the Code of Civil Procedure, 1908? - Amendment of pleadings - Held that:- Whether Section 134 of the Trade Marks Act, 1999 oust Section 20 of the Code of Civil Procedure, 1908 - The answer to the aforesaid question is no longer res integra. In the decision reported as (DB) Intas Pharmaceuticals Ltd. v Allergan Inc [2006 (7) TMI 651 - Delhi High Court ] it was held by a Division Bench of this Court that Section 134 of the Trade Marks Act does not whittle down the provisions of Section 20 of the Code of Civil Procedure but provides an additional forum and a place for filing a suit in case of an infringement of a trademark. Amendment of pleadings - It was felt that the provision for amendment of pleadings was one of the significant sources of delay in the judicial process. In the year 1999, as per the recommendations of Law Commission, the provision for amendment of pleadings was altogether deleted by Amendment Act No.46 of 1999. The deletion of the provision led to widespread protests by lawyers and different legal bodies and as a result in the year 2002 the provision was once again introduced, albeit with a rider, by Amendment Act No.22 of 2002. By virtue of said amendment, a proviso was appended to Rule 17, which reads as under:-"Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." As held by the Supreme Court in Vidyabai & Ors v. Padmalatha & Anr. [2008 (12) TMI 723 - SUPREME COURT OF INDIA], a "trial‟ is deemed to commence when the issues are settled and the case is set down for recording of evidence. In the instant case, the learned Single Judge settled issues in the present suit on March 04, 2010 and set out the suit for final hearing for the parties had agreed between the parties that they would not lead any evidence in the suit and the learned Single Judge shall decide the suit on the basis of the pleadings of the parties and examine the original documents filed by the parties, if necessary, at the time of hearing. Thus, the trial commenced in the present suit on March 04, 2010. The respondents could have easily incorporated amendments (a) and (f) in the plaint filed by them but they failed to do so due to oversight and bona fide error. It is not the case of the respondents that in spite of exercise of due diligence they could not incorporate amendments (a) to (f) in the plaint filed by them. Such being the factual position, the application for amendment of plaint filed by the respondents in respect of amendments (a) to (f) could not have been allowed. We note the dictum of law laid down by the Supreme Court in State of A.P. & Ors v Pioneer Builders & Ors [2006 (9) TMI 534 - SUPREME COURT OF INDIA] that one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. Applying the same analogy, it can safely be concluded that it is impermissible for a plaintiff to change the ground for invocation of jurisdiction of a Court by means of an amendment. We are also of opinion that the conduct of the respondents of deleting paragraph 14 of the (original) plaint which was demonstrative of paltry circulation of magazine VOGUE in India between the years 2000 to 2007 and thus militated against the case set up by the respondents that said magazine was widely circulated in India since last two decades is a very strong pointer to the fact that the respondents sought to remove the defects occurring in their plaint by means of amendment of the plaint. In view of above discussion, the impugned order dated November 18, 2011 passed by the learned Single Judge allowing the amendment of plaint and impleading Priority Marketing Pvt. Ltd. as defendant No.2 in the present suit is set aside. - Decided in favour of appellant.
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