Single judge allowed applications for amendment of plaint under Order 2 Rule 2 CPC to include registered designs pending during suit filing, finding no mala-fide intent and avoiding multiplicity of litigation.
Applications allowed; Plaintiff permitted to amend plaint within 10 days; Suits posted on 07.04.2020.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
A.Nos.9837 to 9841 of 2019
in C.S.Nos.497 & 677/2016, 734 & 893/2017 & 123/2018
A.Nos.9837 to 9841 of 2019
in C.S.Nos.497 & 677/2016, 734 & 893/2017 & 123/2018
Reserved on 04.03.2020 Pronounced on 18.03.2020
M.S.RAMESH.J,
Heard Mr.P.S.Raman, learned Senior counsel appearing on behalf of
the applicant in all the applications and Mr.M.S.Bharath in C.S.No.677 of
2016, Mr.K.Muthuselvan in C.S.734 of 2017, Mr.S.Sakthivel in C.S.No.893 of 2017 and Mr.Navaore Roy in C.S.No.123 of 2018 for the respondent.
Rule XVII of the Civil Procedure Code are for amendments to the plaint for inclusion of certain registered Designs/Models of the applicant's products.
applicant would submit that the present applications have been filed for inclusion of such designs along with the other designs for which 1/8
A.Nos.9837 to 9841 of 2019 in C.S.Nos.497 & 677/2016, 734 & 893/2017 & 123/2018
infringement has sought for. Since the cause of action for the right to institute a suit for infringement of such designs, which were pending under applications, did not arise when the suits were instituted, the present applications for amendment under Order 2 Rule 2 of CPC., are imperative.
The learned Senior counsel would submit that the present applications neither introduces a new or a different cause of action or an inconsistent
case and therefore, there is no impediment in allowing these applications.
prior knowledge of the present applications at the time of instituting the suits and the pendency of the applications were concealed by the plaintiff,
with a mala-fide intention. Hence, the inclusion of these registered designs
will affect the cause of action of the suit and thereby prejudice the defendants, particularly, when the plaintiff has also sought for the relief of permanent injunction restraining the defendants from passing off the plaintiff's products.
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other suits have adopted the submissions made by the learned counsel Mr.M.S.Bharath in C.S.No.677 of 2016.
applications seeking for registration of the copy right in the design was pending. The applications seeking for registration of the copy right in the design was made on 30.07.2014 and the registered Certificate was issued on 14.05.2019. Thereafter, the Legal User Certificate was issued by the registry on 08.07.2019 and thereafter, the present applications seeking for amendment was filed on 20.12.2019. On a prima facie view, it cannot be
said that the present applications for amendment have been belatedly made or that the delay is inordinate in nature.
discretion while dealing with amendment applications, which powers should
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be exercised judiciously and with great care and some of the major factors which requires to be taken into consideration are as to whether the amendments sought for is imperative and bona-fide; the prejudice or injustice that could be caused to the other side; whether the proposed amendments would change the nature and character of the suit; whether the
amendments would, if brought in a fresh suit, be barred by limitation; etc.
decisions of the Hon'ble Supreme Court, highlighting the scope and object
of the applications under Order 2 Rule 2 of CPC. It would suffice to refer to
one decision of the Hon'ble Supreme Court in the case of Revajeetu
Builders and Developers V. Narayanaswamy and Sons and others
reported in 2009 (10) SCC 84 , wherein various decisions of the Hon'ble
Supreme Court were considered and the basic principles that requires to be
taken into consideration, while dealing with an application under Order 2 Rule 2 of CPC., were summed up, as follows:-
“ Factors to be taken into consideration while dealing with applications for amendments :
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A.Nos.9837 to 9841 of 2019 in C.S.Nos.497 & 677/2016, 734 & 893/2017 & 123/2018
present applications have been filed with a mala-fide intention since the pendency of the applications seeking for registration of the copy right was suppressed, no substantive grounds were canvassed as to how such an
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A.Nos.9837 to 9841 of 2019 in C.S.Nos.497 & 677/2016, 734 & 893/2017 & 123/2018
alleged suppression would cause injustice/prejudice to the defendants or as to how it could be termed as a “suppression with a mala-fide intention”? The copyright in the design would accrue on the proprietor of the design only when the same is duly registered and when admittedly, the applications seeking for copyright was pending when the suits came to be instituted, it is apparent that the plaintiff did not have a right to institute a suit for infringement of such designs, during the pendency of the applications. Now that, the Legal User Certificates have been issued to the plaintiff, the right to sue has accrued and therefore, the present applications under Order 2 Rule 2 of CPC have been filed. Unless and until the defendants establishes that the suppression of the pendency of the applications seeking for registration was made with a view to either benefit the plaintiff or prejudice the defendants, the intention cannot be termed as “mala-fide”.
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plaint, is not only acceptable and permissible, but may also avoid multiplicity of litigation, which is also one of the factors laid down in Revajeetu's case (supra) .
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A.Nos.9837 to 9841 of 2019 in C.S.Nos.497 & 677/2016, 734 & 893/2017 & 123/2018
M.S.RAMESH,J.
DP
Order made in
A.Nos.9837 to 9841 of 2019
in
C.S.Nos.497 & 677/2016, 734 & 893/2017 & 123/2018
18.03.2020
8/8
2 issues framed by the court
Whether various applications for amendment of plaint under Order 2 Rule 2 CPC to include registered designs should be allowed.
Whether the non-disclosure of pendency of copyright registration applications constitutes mala-fide intention prejudicial to defendants.
Colour shows how this judgement treated each authority
Revajeetu Builders and Developers V. Narayanaswamy and Sons and othersReferred¶40
2009 (10) SCC 84 · Who else cites this
2 provisions across 1 enactments
Applicant
Respondent/Defendant
M.S. RAMESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
