TMI Blog2013 (1) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner whatsoever. Prayer(s) for rendition of accounts and delivery/destruction of infringing goods were also made in the suit. Along with the suit, the respondents filed an application under Order XXXIX Rule 1 and 2 CPC being I.A. No.14609/2009 praying for an interim injunction till the disposal of the suit. 2. In the plaint filed, it was pleaded by the respondents that the respondent No.1 together with its affiliates is engaged in the business of publication and distribution of magazines and journals internationally. The respondent No.2 is the wholly owned subsidiary of the respondent No.1 as also the licensed/permitted user of trade mark of the respondent No.1, having its branch office at Unit No.15, First Floor, Plot No.D-2, Southern Park, Saket Business District, New Delhi-110017. Since last several years the respondent No.1 has been selling fashion and lifestyle magazine under the trade mark VOGUE‟ in around 145 countries including India. Since the year 1976, the respondent No.1 is the registered proprietor of trade mark VOGUE‟ in India in relation to publications. Since the year 2007 the respondent No.2 is publishing a magazine under the trade name VOGUE I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade mark VOGUE‟ was first used in India in the year 1939. That the first Plaintiff is internationally well- known and is the registered proprietor of the trade mark VOGUE‟ in around 145 countries including India. 13. ........ 14. That the second Plaintiff is publishing a magazine under the trade mark VOGUE INDIA‟ in Mumbai. The second Plaintiff is distributing and selling the magazine VOGUE INDIA‟ from its branch office at New Delhi. The first issue of the magazine VOGUE INDIA‟ (October 2007) was launched in the Indian market on September 21, 2007. Prior to the launch of the Indian edition of the second Plaintiff‟s magazine in 2007, VOGUE‟ magazine was imported in India. Details of circulations of the Plaintiff‟s publication under the trade mark VOGUE‟ in India are given herein below:- YEAR SUBSCRIPTIONS NEWS STANDS xxx xxx 33. That this Hon‟ble Court has jurisdiction to entertain and try the present suit in as much as the first Plaintiff through the second Plaintiff carries on its business w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Auto Limited Vs. TVS Motor Company (2009) 9 SCC 797, following an earlier decision, in the case of Shree Vardhman Rice General Mills Vs. Amar Singh Chawalwala (2009) 10 SCC 257, we set aside the interim orders dated 18.11.2009 passed by the Division Bench as well as the order dated 13.11.2009 passed by the learned Single Judge. As observed by this Court in the aforesaid two decisions, the matters relating to trademarks, copyrights and patents should be finally decided very expeditiously by the Trial Court and preferably within four months instead of merely granting or refusing to grant a temporary injunction. There should also be day- to-day hearing in such suits vide proviso (a) to Order XVIII Rule 1(2) CPC. Accordingly, in the facts of the present case also, we request the learned Single Judge of the High Court to decide afresh the application for injunction within six weeks and the suit itself expeditiously and preferably within a period of four months from the date a copy of this order is produced before it. The learned Single Judge shall decide the application for injunction and suit uninfluenced by any observations made by the High Court in the impugned order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from its branch office at Delhi is false for the reason a perusal of the disclosures contained in the said magazine reveals that said magazine is being distributed by a separate entity known as Living Media India Ltd‟; (viii) in view of the law laid down by the Supreme Court in the decision reported as (1994) 4 SCC 225 Morgan Stanley Mutual Fund v. Kartick Das that a corporation is deemed to carry on its business at its registered office only the mere assertion in the plaint that the respondent No.2 carries on its business from its branch office in Delhi is not sufficient to confer territorial jurisdiction upon this Court when there is no assertion in the plaint that a part of cause of action of filing the present suit has arisen in Delhi; and (ix) on two earlier occasions the respondents filed two suits in this Court for infringement of trade mark VOGUE‟ against some other parties, being CS(OS) Nos.187/2008 and 1792/2008. Whereas in CS(OS) No.187/2008 the plaint was returned by this Court for filing the same in a court at Mumbai, in CS(OS) No.1792/2008 while issuing summons to the defendant a Single Judge expressed doubts on the assertion made in the plaint that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side, on 10.02.2010 at 3.00 pm. (iv) The parties shall also bring original documents to court, which, if necessary, would be examined at the time of hearing. Renotify on 18.02.2010 for hearing. (Emphasis Supplied) 11. On February 04, 2010 the appellant filed its written statement essentially reiterating the averments made in the I.A. Nos.343/2007 and 344/2007 as also to the reply to I.A. Nos.14609/2009 filed by the respondents. It would be relevant to note following portion of the written statement filed by the appellant:- Preliminary Objections: 1. At the outset, it is most respectfully submitted that the present suit is not maintainable in Delhi, as the Defendant is a Company registered in Mumbai and is carrying on its business activities through a chain of retail outlets spread across 12 cities in India. The Defendant neither carries on its business in Delhi nor effects sale of any of its products in Delhi and therefore, no cause of action has arisen in Delhi. The Plaintiff No.1 also does not carry out any business at Delhi either by itself or through Plaintiff No.2. Admittedly, no cause of action has arisen within the jurisdiction of this Hon‟ble Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zine is published at 2 nd Floor, Darabshaw House, Ballard Estate, Mumbai, the magazine is printed by Thomson Press India Ltd. on behalf of the Plaintiff No.2 at Mumbai and the magazine is processed by Combart Lithographers having offices at Mumbai. Hence it can rightly be concluded that essential part of operations with regard to the Plaintiff‟s magazine VOGUE INDIA‟ are carried out in Mumbai. Therefore, merely because the Plaintiff No.2‟s has its branch office in Delhi cannot be considered as sufficient ground for invoking the jurisdiction under Section 134 of the Act. 7. The Plaintiffs have falsely contended that Plaintiff No.2 is distributing and selling the magazine VOGUE INDIA‟ from its branch office in Delhi. As per the disclosures in the magazine VOGUE INDIA‟, the magazine is distributed and sold by a separate entity Living Media India Ltd.‟ and not Plaintiff No.2. Moreover, the magazine VOGUE INDIA‟ is not the mark based on which suit has been filed by the Plaintiffs. It is, therefore, evident that these false assertions have been made in the plaint to wrongfully confer jurisdiction on this Hon‟ble Court. 8. Without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by one Living Media India Ltd.‟, which is a separate legal entity distinct from the Plaintiffs herein. No documents evidencing alleged distribution of the magazine VOGUE INDIA‟ from its Delhi office have been placed on record. The Plaintiffs have failed to furnish any document in support of its claim of the import of the magazine VOGUE‟ in India prior to its official launch in the Indian market on 21st September 2007. The Plaintiff has, in support of its purported circulation in India, relied upon the circulation figures of its magazine in India as shown in the tabular chart outlined in the paragraph under reply. The contents of the said chart are strongly disputed by the Defendant as the same are unverified and unsubstantiated and therefore cannot be read as proof of the circulation of the magazine VOGUE INDIA‟. The veracity of the contents of the table is further disputed by the Defendant on account of the non-compliance of the Plaintiffs in producing the audited details of the names and addresses of the subscribers and the news-stands selling the magazine as detailed in the table despite the issuance of specific notice for the production of the same. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary objections and submissions may kindly be read as an integral part of the reply to the paragraph. No evidence of Plaintiff No.2 carrying on any and what business in Delhi has been placed on record. The Plaintiff No.2 is a company having its registered office in Mumbai. (Emphasis Supplied) 12. On February 17, 2010 the respondents filed a replication reiterating the contents of the plaint filed by them. In addition thereto, it was contended by the respondents therein that:- (i) the magazine published by the respondent No.1 under the trade name VOGUE INDIA‟ is freely available within the territorial jurisdiction of this Court; (ii) the fact that the appellant had filed the application for registration of its trade name JUST IN VOGUE‟ in Delhi makes it apparent that the appellant intends to use said trade name within the territorial jurisdiction of this Court; (iii) Living Media India Ltd. publishes the magazine VOGUE INDIA‟ from the office of the respondent No.2 in Delhi; (iv) apart from the fact that the branch office of the respondent No.2 is situated at Delhi the respondent No.2 also works for gain at Delhi‟ and (v) the fact that the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssential part of operations of the business is carried out by the second Plaintiff from the Delhi office. Reply on merit 1. ..... 2. The contents of paragraph 2 are denied....The argument of the Defendant that the Plaintiffs have no locus standi to file the present suit of infringement in Delhi as the first Plaintiff does not carry business in India and the second Plaintiff is neither the registered proprietor nor registered user of the trade mark VOGUE‟ and therefore the Plaint cannot be filed by the Plaintiffs invoking the provisions of section 134(2) of the Act is of no avail to the Defendant in as much as the first Plaintiff through its licensee namely, the second Plaintiff carries on its business within the jurisdiction of this Hon‟ble Court. Further the second Plaintiff has its branch office within the jurisdiction of this Hon‟ble Court and carries on a substantial business within the jurisdiction of this Hon‟ble Court. The fact that the Plaintiff‟s magazine under the VOGUE INDIA brand is freely available in Delhi shows that the Plaintiff is working for gain within the jurisdiction of this Hon‟ble Court and can therefore invoke th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant had filed the application for registration of its trade name JUST IN VOGUE‟ in Delhi makes it apparent that the appellant intends to use said trade name within the territorial jurisdiction of this Court; and (iii) the fact that the respondent No.1‟s magazine VOGUE INDIA‟ is freely available within the jurisdiction of this Court shows that the respondent No.1 is working for gain within the jurisdiction of this Court. 15. On the same date i.e. March 02, 2010 the appellant also filed an application under Order XI Rule 12 CPC, being I.A. No.2589/2010, seeking issuance of a direction to the respondents to produce amongst other documents: (i) a copy of the judgment and decree dated September 13, 2008 passed by the Additional District Judge, City Civil Court, Gurgaon in Suit No.1/2007 instituted by the respondent No.1 against M/s.Acme Clothing Pvt. Ltd., and (ii) a copy of the statement of witness No.3 Rohit Dass examined by the defendant M/s.Acme Clothing Pvt. Ltd. in Suit No.1/2007. 16. The matter came to be listed before the learned Single Judge on March 04, 2010, on which date the following order was passed:- IA No.2588/2010 (under O.6 R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orial jurisdiction to entertain and try the present suit? OPD (ii) Whether Plaintiff No.2 is a proper party or a necessary party? OPD (iii) Whether the suit by the Plaintiff No.2 is barred under Section 53 of the Trade Marks Act, 1999? OPD (iv) Whether Plaintiff No.1 is barred under Section 48(2) of the Trade Marks Act, 1999 from claiming benefit of the use of the mark Vogue‟ by Plaintiff No.2? OPD (v) Whether the Plaint has been properly instituted and verified by a competent and authorized person on behalf of the Plaintiffs? OPD (vi) Whether the Plaintiffs are guilty of suppression of material facts and have not come to court with clean hands? OPD (vii) Whether the suit is barred on account of acquiescence, delay and laches? OPD (viii) Whether the Defendant has infringed the trademark of the Plaintiff No.1 in terms of Section 29(1) and Section 29(2) of the Trade Marks Act, 1999? If so, to what effect? OPP (ix) Whether the Plaintiff No.1 can claim monopoly over a dictionary word having a descriptive meaning and common usage? OPP (x) Whether the Plaintiff No.1‟s trade mark Vogue‟ has attained reputation and commands goodwill in India? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is not limited to section 134(2) of the Trade Marks Act, 1999. The Plaintiffs have also stated that the Defendant has the intention to use the trademark in Delhi having filed an application for registration of the impugned mark without excluding Delhi from the territory in which the mark is to be used. The cause of action has therefore has also arisen within the jurisdiction of this Hon‟ble Court. The Defendant has since opened a store in the DLF Mall in Saket. Significantly, the store which has opened during the pendency of this suit does not use the word VOGUE as part of its name in a deliberate attempt to avoid the jurisdiction of this Hon‟ble Court. Although the name of the shop is JUST, the bags in which the goods are given use the impugned trademark. The Plaintiffs became aware of this store in the month of April and took photographs of the store and filed them in Court on 13th April, 2010. (Emphasis Supplied) 22. On May 11, 2005 the respondents filed some more documents to show that Priority Marketing Pvt. Ltd. is the holding company of the appellant and that said company i.e. Priority Marketing Pvt. Ltd. is running a shop under the name and style of JUST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No.2 carries on an essential part of publication of respondent No.1‟s magazine VOGUE INDIA from its office in Delhi; (iii) the persons employed by magazine VOGUE INDIA who are responsible for publication of said magazine are stationed at office of respondent No.2 in Delhi; (iv) the registered office of the exclusive distributor of magazine VOGUE INDIA viz. Living Media Pvt. Ltd. is at Delhi; (v) around eighty to eighty-five thousand copies of magazine VOGUE INDIA were sold in Delhi in the year 2009; (vi) the international editions of magazines VOGUE are freely available in India including Delhi; and (vii) the subscribers to the magazine VOGUE reside in Delhi. (Be it noted here that said averments were made in the paragraphs 16 to 19 of the application). 25. Before proceeding further, it would be relevant to note paragraph 20 of the I.A. No.6309/2010:- 20. The said averments are only in furtherance of the averments already made in the plaint. By oversight and bonafide error the aforesaid averments in paras 2 to 16 were not incorporated in the original plaint. The said averments are necessary and material for deciding the question Whether this Court has territorial ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... store named JUST IN VOGUE in the Central Mall, Gurgaon which is a part of the National Capital Region. The cause of action has therefore arisen within the jurisdiction of this Hon‟ble Court. The defendant is carrying on business at DLF PLACE MALL, Saket within the jurisdiction of this Hon‟ble Court. The Defendant is also using bags carrying the trademark VOGUE at its said store and the cause of action has therefore arisen within the jurisdiction of this Hon‟ble Court. (Emphasis Supplied) 27. In addition thereto, the respondents sought to insert paragraph 29A in the plaint, which paragraph reads as under:- 29A. That the Plaintiffs learnt that the Defendant were carrying on business at Delhi particularly at shop premises being No.132-A, DLF Mall, Saket, New Delhi. From the said shop watches and other timepieces are being sold. The said shop is being operated under the name and style of Just Watches and the said business was being carried on by company known as Priority Marketing Pvt. Ltd. which is the holding of Priority One Marketing Pvt. Ltd. (now known as Just Lifestyle , which is the Defendant herein). A fortifori, the Defendant Company is hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for placing before court two other suits: i.e., CS(OS) No. 1792/2008, entitled Advance Magazine vs Kiran Palival; and CS(OS) No. 565/2009 entitled Advance Magazine vs Arvind Ltd. The directions, as requested, were issued. The matter was posted to 28.04.2010. On the said date the defendant moved an application being IA No. 5440/2010 under Order 13 Rule 8 of the Code of Civil Procedure, 1908 (in short CPC‟) for impounding the plaintiff‟s license deed, which is, a subject matter of the present suit. Notice on this application was issued on the said date. The matter was posted on 05.05.2010. On the said date, since the reply to IA No. 5440/2010 was not on record, the matter had to adjourned to 12.05.2010. Today, the plaintiff has moved two applications being: IA No. 6308/2010 under Order 7 Rule 14(3) read with Section 151 of the CPC for bringing on record certain documents which it claims it has discovered only on 13.04.2010; and IA No. 6309/2010 under the provisions of Order 6 Rule 17 read with Section 151 of CPC, for amendment of the plaint and for impleadment of Priority Marketing Pvt. Ltd. as defendant no. 2. Amendments sought in the plaint seek to incorporate averm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Directors of the appellant and Priority Marketing Pvt. Ltd. does not imply that the appellant is the subsidiary company of Priority Marketing; (vii) in view of the facts that Priority Marketing Pvt. Ltd. holds a mere 3% equity shares in the appellant and does not exercise any control over the composition of the Board of Directors of the appellant the appellant cannot be considered as a subsidiary company of Priority Marketing Pvt. Ltd. in terms of provisions of Section 4 of the Companies Act, 1956; (viii) the shop JUST WATCHES‟ was opened on February 26, 2010 i.e. subsequent to the filing of the suit on November 11, 2009 and thus the factum of running of said shop by purported holding company Priority Marketing Pvt. Ltd. would not confer territorial jurisdiction on this Court in view of the settled legal position that the territorial jurisdiction for filing a suit should be determined on the basis of the facts existing on the date of institution of suit and all subsequent and posterior facts should be ignored; (ix) the fact that the appellant is operating a retail store in Gurgaon came to the knowledge of the respondents on November 21, 2009 when the appellant filed paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Plaintiffs smacks of mala fide intentions of the Plaintiffs and the same deserves to be dismissed with heavy costs. 9. ....... 10.The mere factum of commonality of names and Directors of the company does not imply that the Defendant is a subsidiary of Priority Marketing Pvt. Ltd.‟ It is stated that Priority Marketing Pvt. Ltd. holds a mere 3% (three) of the equity shares in the Defendant and does not exercise any control over the composition of the Board of Directors of the Defendant. The conditions as stipulated under Section 4 of the Companies Act, 1956 for a company to be considered a subsidiary of another is not fulfilled by the Defendant and, therefore, the Defendant cannot be regarded as a subsidiary of Priority Marketing Pvt. Ltd.‟ 31. The respondents filed a rejoinder to the reply filed by the appellant to the I.A. No.6309/2009 reiterating the averments made by them in the I.A. No.6309/2009. In response to the averments contained in the reply of the appellant that the online inspection of the records of Registrar of Companies reveals that the appellant ceased to be subsidiary company of Priority Marketing Pvt. Ltd. in the year 2008 and Priority Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingle Judge allowed I.A. No.6309/2009 and impleaded Priority Marketing Pvt. Ltd.‟ as defendant No.2 in the suit. In so concluding, it was held by the learned Single Judge that:- (i) the proviso appended to Order VI Rule 17 CPC is no impediment in allowing an application for amendment of pleadings if the application deserves to be allowed on merits, otherwise, the proviso would be in direct conflict to the expression 'at any stage' occurring in Order VI Rule 17; (ii) it is open to a court including an appellate court to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that:- (a) the relief claimed originally has by reason of subsequent change of circumstances become inappropriate, or (b) where it has become necessary to take notice of the changed circumstances in order to shorten the litigation, or (c) to do complete justice between the parties; (iii) the principle embodied in proviso appended to Order VI Rule 17 CPC that no amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el further highlighted that in order to defeat the objections which were the subject matter of I.A. No.2588/2010 the respondents have filed I.A. No.6309/2009 seeking amendment of plaint inasmuch as one of the amendments sought was that the magazine VOGUE is freely available in India. B. A perusal of I.A. No.6309/2009 filed by the respondents would show that under the garb of amendment of plaint the respondents have in a very subtle manner deleted paragraph 14 of the (original) plaint. Counsel contended that deletion of paragraph 14 of the (original) plaint by the respondents is very significant for the reason said paragraph which was demonstrative of paltry circulation of magazine VOGUE in India between the years 2000 to 2007 militated against the case set up by the respondents that magazine VOGUE INDIA was very widely circulated in India since last 2 decades. Counsel highlighted that said aspect of the matter was completely lost by the learned Single Judge while passing the impugned order. C. The allowing of application for amendment of plaint by the learned Single Judge has caused grave and serious prejudice to the appellants inasmuch as same has set at naught the entire pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually resides, or carries on business, or personally works for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation - A corporation shall be deemed to carry on business at its sole or principal office in India, or in respect of any cause of action arising at any place where it has also a subordinate office, at such place. 39. Whether Section 134 of the Trade Marks Act, 1999 oust Section 20 of the Code of Civil Procedure, 1908? 40. The answer to the aforesaid question is no longer res integra. In the decision reported as 132 (2006) DLT 641 (DB) Intas Pharmaceuticals Ltd. v Allergan Inc 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. 41. In the decision reported as 155 (2008) DLT 164 (DB) Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a later date, a fresh suit may lie but that would not mean that the suit which was not maintainable on the date of its institution, unless an exceptional case is made out therefore can be held to have been validly instituted. Discretion, as is well known, cannot be exercised, arbitrarily or capriciously. 44. Order VI Rule 17 of the Code of Civil Procedure, 1908 as it originally stood enacted reads as under:- 17. Amendment of pleadings: - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. 45. 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 introduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court on the point it was held by the Supreme Court that the trial‟ is deemed to commence when the issues are settled and the case is set down for recording of evidence. 50. In the decision reported as Chander Kanta‟s (supra) the Supreme Court interpreted the expression due diligence‟ occurring in proviso appended to Order VI Rule 17 CPC in the following terms:- 16. The words due diligence‟ has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word diligence‟ means careful and persistent application or effort. Diligent‟ means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), diligence‟ means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. Due diligence‟ means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) due diligence‟, in law, mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding Delhi; (e) magazine VOGUE INDIA is widely circulated in Delhi; (f) subscribers to the magazine VOGUE reside in Delhi; (g) appellant is operating a store at Central Mall, Gurgaon; and (h) holding company of the appellant viz. Priority Marketing Pvt. Ltd.. is operating a store at DLF Mall, Saket which is using the trade mark VOGUE. Amendments (a) to (f):- 54. On November 12, 2009 the respondents filed the present suit alleging the infringement of its registered trade mark VOGUE by the appellant inter-alia contending therein that this Court had territorial jurisdiction to try the present suit for the reason the respondent No.1 through the respondent No.2 carries on its business within the territorial jurisdiction of this Court inasmuch as respondent No.2 has its branch office within the jurisdiction of this Court'. On November 12, 2009 the learned Single Judge issued summons in the suit and passed an ex-parte interim order restraining the appellant from using the trade mark VOGUE‟ as part of its trade name JUST IN VOGUE‟ or any other deceptively similar trade mark in relation to its goods and service, till the next date of hearing. 55. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne VOGUE is freely available in Delhi. 60. On March 2, 2010 the appellant filed I.A. No.2588/2010 under Order VI Rule 16 CPC for striking out the averment contained in the replication that the magazine VOGUE is freely available in Delhi. On March 04, 2010 the learned Single Judge disposed of I.A. No.2588/2010 by leaving it open for the appellant to raise all such objections which are the subject matter of the present application at the stage of arguments. On the same date i.e. March 04, 2010 the learned Single Judge settled 14 issues in the suit. One of the issues framed by the learned Single Judge was that whether this Court has territorial jurisdiction to entertain and try the present suit. 61. Thereafter the suit was partly heard by the learned Single Judge on eight dates. Relevant would it be to note that the arguments advanced by the parties centered around the issue whether this Court had territorial jurisdiction to try the present suit. (See the order dated May 12, 2010 passed by the learned Single Judge). However, on May 12, 2010 the learned Single Judge released the matter from part-heard. 62. In the interregnum, on May 11, 2010 the respondents had filed I.A. No.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed. Amendment (g) 68. As already noted hereinabove, the fact that the appellant is operating a retail store in Gurgaon came to the knowledge of the respondents on November 21, 2009 when the appellant filed a paper book in FAO (OS) No.559/2009 annexing therein the list of stores operated by the appellant. The trial in the present suit commenced on March 4, 2010. A period of nearly 4 months from the date of acquiring knowledge of said fact and commencement of trial in the suit. No reason whatsoever has been given by the respondents for incorporating the amendment (g) in the plaint filed by them before the commencement of trial in the suit. In that view of the matter, the application for amendment of plaint filed by the respondents in respect of amendments (a) to (f) could not have been allowed. Amendment (h) 69. With respect to amendment (h), the timing of filing the application for amendment of plaint and nature of amendment sought to be incorporated in the plaint are very crucial. 70. As already noted hereinabove, the respondents have filed the present suit for infringement of its registered trade mark VOGUE by the appellant inter-alia contending therein that in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 75. In that view of the matter, the application for amendment of plaint filed by the respondents in respect of amendment (h) could not have been allowed. 76. The matter can also be looked at from another angle. 77. Before proceeding further, we would like to note the decision of the Supreme Court in Civil Appeal No.2968 of 2012 titled as Maria Margadia Sequeria v. Erasmo Jack De Sequeria‟ decided on March 21, 2012. The facts of the said case were that the appellant No.1 and respondent No.1 were brother and sister. The respondent No.1 had filed a suit under Section 6 of the Specific Relief Act, 1963 against the appellant No.1 seeking grant of a decree of permanent and mandatory injunction in his favor in respect of the suit property in the Court of Civil Judge, Senior Division at Panaji, Goa. In the plaint filed, it was alleged by the respondent No.1 that he remained in the possession of the suit property for several years by virtue of a family arrangement; his sister appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a motion to dismiss we must take all of the factual allegations in the complaint as a true, we are not bound to accept as true a legal conclusion couched as factual allegation....only a complaint that states a plausible claim for relief survives a motion to dismiss‟ respectively, the Supreme Court that the Courts should carefully and critically scrutinize and examine the pleadings and the documents filed by the parties at the very threshold of a matter and should not send the matter for trial where the pleadings and documents filed by the parties show that the plaintiff/defendant has no real prospect of succeeding in a matter or defending a claim, as the case may be. 79. The Supreme Court further emphasized that pleadings of the parties should give sufficient details and the matter should not be sent for trial on vague pleadings. The relevant observations made by the Court are being noted herein under:- 67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx 78. The Court must ensure that pleadings of a case must contain sufficient particulars. Insistence on details reduces the ability to put forward a non-existent or false claim or defence. 79. In dealing with a civil case, pleadings, title documents and relevant records play a vital role and that would ordinarily decide the fate of the case. 80. In view of decision of Supreme Court in Margadia‟s case (supra) we closely scrutinize the amendment (h) sought to be incorporated by the respondents in the plaint filed by them. In so doing, we are conscious of the legal position that the Court is precluded from going into the merits of the amendment sought by a party to the suit at the stage of deciding whether an application for amendment is allowed or not. 81. Assuming the amendment (h) sought to be incorporated by the respondents in the plaint filed by them is correct would the fact that the holding company of the appellant Priority Marketing Pvt. Ltd. is operating a store in Delhi which uses the trade mark VOGUE is sufficient to clothe this Court with the territorial jurisdiction to try the present suit. 82. The answer to the aforesaid question is NO. In its app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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