DEV PHARMCY Vs. NOVA INTERNATIONAL

JUDGEMENT

(1.) Plaintiff has filed this application for amendment of paragraph 10 of the plaint. The proposed amendment is specified in paragraph 4 of the application, which is as under:-- "Further the plaintiff also issued upon the defendant cease and desist notice dated 19.7.2003 to discontinue forthwith their impugned activities under the trademark Paurush Jiwan Label of the plaintiff. This notice was duly replied to on 23.7.2003 and 26.7.2003 respectively wherein instead of complying with the terms of the notice, the defendant blatantly denied the knowledge of the plaintiff's products under the impugned trademark. Besides the replies are illegal, vague and baseless."

(2.) The plaintiff has filed this suit for passing off action against the defendant. The defendant has not filed the written statement as yet. Instead has filed an application under Order 7 Rule 11 CPC which is yet to be heard. The proposed amendment does not change the nature of the suit. It does not cause any prejudice to the defendant. This is not mala fide, there is no gross delay or laches on the part of the plaintiff. The amendment seems necessary for deciding the real question in controversy between the parties. Counsel for the plaintiff has requested for allowing the application and has cited Akshaya Restaurant v. P. Anjanappa and another, AIR 1995 SC 1498; Jayanti Roy v. Dass Estates Pvt. Ltd., 2002(4) SCALE 275 ; Sampath Kumar v. Ayyakannu and another, AIR 2002 SC 3369 and Prem Bakshi v. Dharam Dev, AIR 2002 SC 559 in support of his argument. Following the principles of law laid down in the cited judgments the application is allowed. Amended plaint has already been filed. Copy thereof has already been supplied to the counsel for the defendant. Defendant shall file written statement to the amended plaint within four weeks. Replication if necessary be filed within four weeks thereafter. Renotify before the Joint Registrar for completing the pleadings on 19.11.2003. The case now need not be listed the Joint Registrar on 24.9.2003. IA No. 8398/03

(3.) Defendant has filed this application for return of the plaint on the ground that the plaintiff has valued the plaint for the relief of decree of injunction for passing off and infringement of copyright and delivery of the material at Rs. 200 each and court fee of Rs. 20 each has been affixed. However, for the purpose of rendition of accounts the plaintiff vide paragraph 15(d) has valued the suit for rendition of accounts of profits both for the purposes of court fees and jurisdiction at Rs. 200 and has affixed court fees of Rs. 20, therefore, the total value of the suit for the purpose of jurisdiction is only Rs. 800. It is further alleged that the plaintiff in paragraph 15(e) of the plaint has again valued the suit for the purpose of jurisdiction this relief at Rs. 20,01,000 as the plaintiff estimates that such an amount shall be found due to the plaintiff from the defendant on rendition of accounts. It is accordingly submitted that once the plaintiff has valued the relief of rendition of accounts of profits both for the purposes of court fees and jurisdiction at Rs. 200 as per paragraph 15(d) of the plaint then the pleading contained in paragraph 15(e) of the plaint are completely redundant and are liable to be ignored. It is therefore, submitted that this Court has no pecuniary jurisdiction to entertain and try the suit and the plaint is liable to be returned to the plaintiff to be presented to a court of competent jurisdiction. Plaintiff has not filed reply to this application. However, he wants to argue on the existing material.