SUDHIR BHATIA Vs. MIDAS HYGIENE INDUSTRIES PVT. LTD

JUDGEMENT

(1.) THE respondent had filed a suit for perpetual injunction, infringement of copyright, passing off and delivery up, etc., which is pending before the trial court. The respondent filed an application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'the Code') to amend the plaint. It may be noticed that the petitioner (original defendant) did not appear in the suit and was proceeded ex-parte on 23.07.2004 However, an application was filed by the petitioner under Order IX Rule 7 of the Code and on 31.08.2004 that application was allowed and the application of the respondent under Order VI Rule 17 of the Code was put up for hearing. The said application was taken up on 15.10.2004 when no objection of learned counsel for the petitioner to the amendment was recorded. The order goes on to record that the amended plaint is already on record, though learned senior counsel for the respondent states that this is not factually correct. Additional court fee was directed to be paid on or before the next date of hearing of 25.11.2004.

(2.) THE additional court fee was not paid and the matter was adjourned thereafter on two occasions, when finally on 04.03.2005, a statement was made by learned counsel for the respondent that they do not wish to press the application under Order VI Rule 17 of the Code. This was objected to by learned counsel for the petitioner, but the trial court held that this is a matter which falls totally within the domain of the plaintiff and allowed the request.

(3.) A perusal of the order dated 15.10.2004 shows that there is some ambiguity in this behalf. This ambiguity arises on account of the fact that while the respondent has been directed to pay the additional court fee, there is no formal order saying that the application of the respondent stands allowed. It is also relevant to note that the subsequent proceedings are before the same learned Judge, who has considered the application of the respondent as still pending.